Dear
Readers,
Here are
some notes on Public International Law for your review which I was able to gather after taking up a class. I hope that this helps in increasing your knowledge of law.
What is Public
International Law?
&nusp; This is the body of legal rules, which
apply between sovereign states and such other entities as have been granted
international personality.
Can you
distinguish the difference between PRIVATE INTERNATIONAL LAW and PUBLIC INTERNATIONAL LAW ?
Private
International Law
(1.) Issued by a political superior for observance
by those under its authority
(2.) Consists
mainly of enactments from the lawmaking authority of each state
(3.) Regulates
the relations of individuals among themselves or with their own states
(4.) Violations
of municipal law are redressed through local administrative and judicial processes
(5.) Breaches
of municipal law generally entail only individual responsibility
Public International
Law
(1.) Is
not imposed upon but simply adopted by states as a common rule of action among themselves.
(2.) Is 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 of public international law are
resolved through state-to-state transactions ranging from peaceful methods like
negotiations and arbitration to the hostile arbitrate
due to
force like war.
(5.)
Responsibility for infractions of international law is usually collective in
the sense that it attaches directly to the state and not to its nationals
A. DOCTRINE
OF INCORPORATION
Art. II,
Sec. 2 1987 Phil. Constitution: The Philippines renounces war 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 thepolicy of peace, equality,
justice, freedom,cooperation, and amity with all nations.
B. DOCTRINE
OF TRANSFORMATION
-the
generally accepted rules of international law are not per se binding uponthe
state but must first be embodied in the legislation enacted by the lawmaking
bodyand so ransformed into municipal law. Onlywhen so transformed will they
become binding upon the state as part of its municipallaw.
C.PACTA
SUNT SERVANDA
– in
International law, treaties and executive agreements are equally bindingcommitments
of the contracting states underthe maxim pacta sunt servanda. 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 notinvoke provisions in its
constitution or its lawsas an excuse for failure to perform this duty.
Q: In
case of irreconcilable conflict between a treaty and a municipal constitution,
whichshould prevail?
A:
1. From
the viewpoint of the world, international law ought to prevail to avoid international
embarrassment and to preventcharges of International deliquency. The State must
accordingly update its municipalconstitution.
2 From
the viewpoint of the State itself, it would seem that most constitutions
(including our own) provide that a treaty may be declaredunconstitutional by a
State’s own national
courts;
though of course it should also be evident that the decision of a national
court,
while
binding on municipal authorities wouldhave NO international effect, for indeed
it is a
settled
principle of international law that a
sovereign
cannot be permitted to set up itsmunicipal law against a claim founded on
international
law.
A. Law
of Nature-there is a natural and universal principle of right and wrong,independent
of any mutual intercourse or compact.
B. Positivist
Theory-the bindingforce of international law is derived from the agreement of
sovereignstates to be bound by it. It is not alaw of subordination but of coordination.
C. Eclectic
Theory-proposes that both the law of nature and the consent of States serve as
basis of international law; to the effect that the system of international law
isbased on the dictate of right reason as well as the practice of states.
What is
the purpose of the observation of Public International Law?
States observed Public International Law
because of the following:
First,belief
in the reasonableness of the Law of Nations, second,fear of being unconventional
, and third,,fear of reprisal from other states. Its functions are to:
A. the
maintenance of international peace and order;
B. the
protection of State rights and offundamental human rights thrusanctions, both
peaceful and coercive;
C. the
economic, social, cultural and technological development of states and such
other entities as may be possessed of an international personality.
Q: If a
Filipino acquires lawfully a parcel of private land and later becomes an
American citizen, what happens to his ownership over the
land?
A: The
person’s ownership over the landcontinues but the land, except in the caseof
hereditary succession may be transferred only to individuals, corporations or
associations qualified to acquire or hold lands of the public domain.
What are
the several sources of Public International Law?
Its
primary sources are treaties, customart practices which has grown up between
states and hascome to be accepted as binding bythe mere fact of persistent
usage over a long period of time. general principles of law derived from the
law of nature and are observed by the majority of states because they
arebelieved to be good and just (e.g.prescription, estoppel, consent, res judicata
and pacta sunt servanda).
Its
secondary sources are decisions of international, tribunals and writings and
teachings of most highly qualified publicists.
Here are some important terms to remember:
EX AEQUO
ET BONO – this is the basis for a decision by an international tribunalon the
grounds of justice and fairness.
•
ANGARY
-the right of a belligerent state, in time
of war, to make use of the property
of neutral states, located withinthe territorial jurisdiction of the belligerent,
upon payment of reasonableand just compensation.
•
BLOCKADE
-the isolation by a warringnation of an enemy area (as a harbor) bytroops or
warships to prevent passage ofpersons or supplies.
More to
follow is information from subjects of International Community.
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