General Principles || Sources of International Law || The International Community (Book)

Ex aequo et bono

"according to the right and good" or "from equity and conscience"

Elements for a state to be regarded as an international person

(1) a permanent popualtion; (2) a defined territory; (3) government; and (4) sovereignty or independence

Development of the International Community

-1648: The Peace of Westphalia -1721: Russia was admitted into the family of nations -1783: American Republic was admitted -1856: Treaty of Paris

What are the secondary or indirect sources of international law?

1. Decisions of courts 2. Writings of publicists

What are the divisions of international law?

1. Laws of peace 2. Laws of war 3. Laws of neutrality

Distinctions between municipal law and international law

1. Municipal law is issued by a political superior for observance by those under its authority whereas international law is not imposed upon but simply adopted by states as a common rule of action among themselves. 2. Municipal law consists mainly of enactments from the lawmaking authority of each state whereas international law is derived not from any particular legislation but from such sources as international customs, international conventions and the general principles of law. 3. Municipal law regulates the relations of individuals among themselves or with their own states whereas international law applies to the relations inter se of states and other international persons. 4. Violations of municipal law are redressed through local administrative and judicial processes whereas questions of international law are resolved through state-to-state transactions ranging from peaceful methods like negotiations and arbitration to the hostile arbitrament of force like reprisals and even war. 5. Breaches of municipal law generally entail only individual responsibility whereas responsibility for infractions of international law is usually collective in the sense that it attaches directly to the state and not to its nationals. ICRRS

Give examples of composite states

1. Real union 2. Federal union 3. Confederation 4. Personal union

Sanctions of international law

1. The compulsive force of reciprocal advantage and fear of retaliation. This is the belief shared by many states in the inherent reasonableness of international law and in their common conviction that its observance will redound to the welfare of the whole society of nations. 2. Normal habits of obedience ingrained in the nature of man as a social being. These habits persuade individuals, and ultimately states, to follow, almost automatically at times, certain norms of conduct imposed for their observance. 3. Respect for 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; to win the sympathy and support of the other countries for their respective ideologies; 4. The constant and reasonable fear that violations of international law might visit upon the culprit the retaliation of other states; 5. The machinery of the United Nations which has proved to be an effective deterrent to international disputes caused by disregard of the law of nations. RNRRM

State Article 38 of the Statute of the International Court of Justice

1. 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 the contesting state; 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 prohibition shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto

Functions of international law

1. The primary function is to establish peace and order in the community of nations and to prevent the employment of force; 2. To promote world friendship by leveling the barrier (race or creed) that have so far obstructed the fostering of a closer understanding in the family of nations; 3. Endeavors to encourage and ensure greater international cooperation in the solution of certain common problems of a political, economic, cultural or humanitarian character; 4. It aims to provide for the orderly management of the relations of states on the basis of the substantive rules they have agreed to observe as members of the international community PFCM

What are the three kinds of trust territories under the UN Charter?

1. Those held under mandate under the League of Nations 2. Those territories detached from the defeated states after WWII 3. Those voluntarily placed under the system by the states responsible for their administration

Enforcement of international law

1. Through international organizations or regional groups should as the United Nations Security Council and the International Court of Justice 2. Special tribunals created by agreement of the parties affected for the settlement of their disputes; 3. Through amicable methods such as diplomatic talks or hostile measures such as retorsions and reprisals and war; 4. If the rules of international law is treated by the individual states as part of their municipal law, the legislature may implement such rules by prescribing the norms for their observance and providing specific penalties for their violation

What are the primary or direct sources of international law?

1. Treaties or conventions 2. Customs 3. General principles of law

What are colonies or dependencies?

A colony or a dependency is part and parcel of the parent state, through which all its external relations are transacted with other states. It has no legal standing in the family of nations.

What are composite states?

A composite state consist of two or more states, each with its own separate government but bound under a central authority exercising, to a greater or less degree, control over their exernal relations.

What is a confederation?

A confederation is an organization of states which retain their internal sovereignty and, to some degree, their external sovereignty, while delegating to the collective body power to represent them as a whole for certain limited and specified purposes. To the extent that the confederation itself and each of the member states are able to maintain international relations, they are all regarded as so many international persons, albeit not full but only imperfect.

What is a custom?

A custom is 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.

What is a federal union?

A federal union or federation is a combination of two or more 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 their external relations as well as a certain degree of power over their domestic affairs and their inhabitants.

What is a personal union?

A personal union comes into being when two or more independent states are brought together under the rule of the same monarch, who nevertheless does not become one international person for the purpose of representing any or all of them. Each member becomes a state and an international person, although its external policies are directed by the same ruler who dictates the foreign affairs of the other components of the union. Strictly speaking, therefore, the personal union is not a composite state because no new international person is created to represent it in international relations.

Distinguish a protectorate from a suzerain.

A protectorate always retains a greater measure of control over its external affairs than the suzerain. Protectorate represents in theory a voluntary act of subordination to the protecting state by contrast with the concession of autonomy made by the suzerain state to the vassal state.

What are simple states?

A simple state is one which is placed under a single and centralized government exercising power over both its internal and external affairs.

What is a state?

A state is (1) a group of people living together in a (2) definite territory under an (3) independent government organized for political ends and (4) capable of entering into international relations.

Distinguish a subject and an object of international law

A subject of international law is an entity that has rights and responsibilities under the law. It has an international personality in that it can directly assert rights and be held directly responsible under the law of nations. It has the faculty of motivation which means it can be a proper party in transactions involving the application of the law of nations among members of the international community. An object of international law is the person or thing in respect of which rights are held and obligations assumed by the subject. It is not directly governed by the rules of international law. Its rights are received and its responsibilities imposed indirectly, through the instrumentality of an intermediate agency.

What is an incorporate union?

An incorporate union is a union of two or more states under a central authority empowered to direct both their external and internal affairs and possessed of a separate international personality.

What is the United Nations?

An organization of states but is regarded as an international person for certain purposes.

Doctrine of incorporation

Article II, Section 2 of the Constitution - The Philippines renounces was as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.

The criteria to be applied in resolving conflicts between international law and municipal law as developed by the practice of states

Basic rule: attempt to reconcile the apparent contradiction and thereby give effect, if possible, to both systems of law. 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.

What is the traditional concept of international law?

Body of rules and principles of action which are binding upon civilized states in their relations with one another.

What are belligerent communities?

Communities treated as in international person and subjected to the laws of war and neutrality when a portion of the population rises up in arms against the legitimate government of the state

Private international law is also called

Conflict of laws

What is the status of Vatican?

Doubt is expressed by jurists as to its real status but it cannot be denied that the Vatican City exercises certain prerogatives of states such as the treaty-making power and the right of diplomatic intercourse.

Conflicts between constitution and treaty

Every State has the duty to carry out in good faith its obligations arising from treaties or other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty (Declaration of the Rights and Duties of States). On the other hand, most constitutions contain provisions empowering the judiciary to annual treaties and the legislature to supersede them with statutes, thereby establishing the primacy of the local law over the international agreement.

What are general principles of law?

General principles of law are mostly derived from the law of nature and are observed by the majority of states because they are believed to be good and just.

How can a custom be a source of international law?

If is 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.

What are the classification of states?

Independent and dependent states

What is an independent state?

Independent states are those that have full international personality. These are simple or composite either of which may be neutralized. It is a state which is not subject to dictation from others.

Distinguish international law from international administrative law

International administrative law is defined as "that body of laws and regulations, now highly developed, created by the action of international conferences or commissions which regulate the relations and activities of national and international agencies with respect to those material and intellectual interests which have received an authoritative universal recognition."

Distinguish international law from international diplomacy

International diplomacy relates to the objects of national or international policy and the conduct of foreign affairs or international relations. It is the application of intelligence and tact to the conduct of official relations between independent states (Satow).

What is the basis of international law according to the positivists?

International law is a law of coordination. The binding force of international law is derived from the agreement of sovereign states to be bound by it. A more "positive" identification with or acknowledgement of the law is necessary to make it binding on the states it purports to govern, so that any state withholding its consent can disclaim any responsibility of observance. Such consent is expressed in the case of conventional law, implied in the case of customary law, and presumed in the case of the general principles of law.

What is the relation of international law with municipal law?

International law is a part of our law and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of rights depending upon it are presented for determinations (Paquete Habana Case). The law of nations, although not specially adopted by the Constitution or any municipal act, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation.

What is international law according to Schwarzenberger?

International law is the body of legal rules which apply between sovereign states and such other entities as have been granted international personality

What is the basis of international law according to the naturalist school of thought?

International law is viewed as a law above states. The basis of international law is the law of nature. The law of nature is described as a higher law or a rule of human conduct independent of positive enactment and even of special divine revelation, and binding always and everywhere in view of its intrinsic reasonableness. Under this theory, 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. The consequence is that, since individuals compose the state, whose will it but the result of the collective will of its inhabitants, that state itself also becomes bound by the law of nature.

Distinguish international law from international morality or ethic

International morality or ethic embodies those principles which govern the relations of states from the higher standpoint of conscience, morality, justice and humanity. It may also be likened to international comity, which refers to those rules of courtesy observed by states in their mutual relations, in that violations of its precepts are not regarded as constituting grounds for legal claims

What is a real union?

It is created when two or more states are merged under a unified authority so that they form a single international person through which they act as one entity. The states forming this union retain their separate identities as such, but their respective international personalities are extinguished and blended in the new international person, which, however, is not regarded as a state in itself.

What is "government"?

It is the agency through which the will of the state is formulated, expressed and realized.

What is the international community?

It is the body of juridical entities which are governed by the law of nations. Under the modern concept, it is composed not only of states but also of such other international persons (UN, the Vatican City, colonies, dependencies, mandates and trust territories, international administrative bodies, belligerent communities, and even individuals). These are the generally recognized subjects of international law.

What is "territory"?

It is the fixed portion of the surface of the earth in which the people of the state reside. A defined territory is necessary for jurisdictional reasons and in order to provide for the needs of the inhabitants. The territory should be big enough to be self-sufficient and small enough to be easily administered and defended.

What is "people"?

It refers to the human beings living within the state's territory. They should be of both sexes and sufficient in number to maintain and perpetuate themselves.

Present state of international law

Many of the rules of international law are rooted in tradition but not a few have yielded to new principles brought about by modern developments in international relations (receding distinctions between combatant and non-combatants, the growing claims over maritime domain of states, the general disapprobation of intervention, the outlawry of war, and the expansion of the horizons of man into the realm of outer space). International law remains in a state of transition.

What are neutralized states?

Neutralized states are those independent states which enter agreement with other states by virtue of which the latter will guarantee its integrity and independence provided it refrains from taking any act that will involve it in war or other hostile activity except for defensive purposes.

How can general principles of law be a source of international law?

No international convention was necessary to bring them into existence but they become universal in application because of the unilateral decision of a considerable number of states to adopt and observe them in recognition of their intrinsic merit.

Does stare decisis apply in international law?

No. The doctrine of stare decisis is not applicable in international law and so the decision of a court in one case will have only persuasive value in the decision of a subsequent case.

Is there a distinction in considering decisions of courts as subsidiary sources of international law?

None. Article 38 does not distinguish between those rendered by international tribunals like the International Court of Justice and arbitration bodies and those promulgated only by national courts as long as they are a correct application and interpretation of the law of nations. The decisions of the courts of every country show how the Law of Nations in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this.

Distinguish observance and enforcement

Observance is essentially subjective and mainly dependent on the volition of the entity which is supposed to be governed by the law. Enforcement is the process by which such observance may be compelled, usually by force or at the threat of force.

What are two general classifications of the sources of international law?

Primary and secondary sources

Distinguish a state from a nation

Some writers no longer recognize the distinction between state and nation. Nevertheless, a respectable number of jurists still hold that whereas the state is a legal concept, the nation is only a racial or ethnic concept.

What is "sovereignty"?

Sovereignty manifests it self in independence which is the power of the state to direct its own external affairs without interference or dictation from other states.

What is the basis of international law according to the Eclectics or the Grotians?

The basis of international law is the law of nature and consent of states. The system of international law is based on the dictate of right reason as well as the practice of States. In so far as it conformed to the dictates of right reason, the voluntary law might be said to blend with the natural law and be indeed the expression of its. Should there be a conflict between the two, the law of nature was to prevail as being the fundamental law, the authority of which could not be contravened by the practice of States.

How can a treaty be a source of international law?

The general rule is that the treaty, to be considered a direct source of international law, must be concluded by a sizable number of states and thus reflect the will or at least the consensus of the family of nations. Even if originally agreed upon only by a few states, the treaty may become binding upon the whole world if it is intended to lay down rules for observance by all and it is subsequently signed or acceded to by other states which thereby submit to its provisions.

Doctrine of transformation

The generally accepted rules of international law are not per se binding upon the state but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law.

What are individual in the perspective of international law?

The individual is not merely an object but a subject of international law.

International law is also called

The law of nations

Jus feciale

The law of negotiations and diplomacy which determine the duties of the Fecial College of the old Roman Republic.

Define laws of war

The law that governs states when war breaks out between or among some of them.

Define laws of neutrality

The law that governs the relations of those states not involved in the war with the belligerents or those involved in the war.

What do you mean by laws of peace?

The laws of peace govern the normal relations of states.

What are the two classification of dependent states?

The protectorate and suzerainty

How can writings of publicists qualify as a source of international law?

The writings must be a fair and unbiased representation of international law, and by an acknowledged authority in the field.

What are mandates and trust territories?

These territories enjoy certain rights directly available to them under the UN Charter that vest them with a degree of international personality. They are, however, not sovereign

Dualists' view of international law

They believe in the dichotomy of the law and in the certain well-established differences between international law and municipal law.

Monists' view of international law

They believe in the oneness or unity of all law. They contend that law is essentially a command binding upon the subjects independently of their will, and it is ultimately the conduct of individuals which it regulates.

Differentiate custom from usage

Usage, while also is a long established way of doing things by states, is not coupled with the conviction that is obligatory and right

What are dependent states?

Usually exemplified by the protectorate and suzerainty and are so called because they do not have full control of their external relations. These are entities which, although commonly recognized as states, are subject to the control of other states in the direction of their external affairs

How can administrative bodies be vested with international personality?

When two conditions concur: 1. Their purposes are mainly non-political and 2. They are autonomous

hostile

hostile

Ex proprio vigore

of its own force