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•
•
•
• Understand
the basic
principles of
international
law;
2. Determine
international
customs and
obligations; and
3. Understand
the full concept
of treaties.
After this lesson, you should be able to:
• International law - laws that regulate relations of states and international
persons.
• National law - laws that regulate individuals among themselves or within
the states.
• Treaty - an international agreement conducted between states, in written
form and governed by international law, whether embodied in a single
instrument or two or more related instruments, whatever its particular
designation (Art. 2 (1) (a), Vienna Convention on Law of Treaties)
International law regulates relations of states and international
persons. It is derived from treaties, international customs, and
general principles of law. If conflict arises, the same is resolved
through state to state transactions. On the other hand, national law
regulates relations of individual among themselves or within the
state. It consists of statutory enactments, executive orders, and
judicial pronouncements. If there is conflict, the same is redressed
through local, administrative, and judicial processes.
International Law and National Law
How does international law become a part of the law of the state?
There are two doctrines of adoption: doctrine of incorporation and
doctrine of transformation.
The doctrine of incorporation is mainly based under Section 2, Art. II of
the 1987 Constitution which states that:
“xxx the Philippines adopts the generally accepted principles of
International Law as part of the law of the land.”
Thus, the generally accepted principles of international law are considered
as part of a state’s national law by reason of its membership in the family of
nations
The doctrine of transformation requires the enactment by the
legislative such international law principles are sought to be part of
municipal law (Coquia & Defensor-Santiago, 2005). This doctrine must
be related to the power of the President to enter into treaties wherein
rule and principles embodied in said treaties would be transformed into
the Philippine law and would become valid and effective upon the
concurrence of two-thirds(2/3) of all the members of the Senate(Sec.
21, Art VII, 1987 Constitution).
International conventions are international agreements concluded
between States, in written form, and governed by International Law,
embodied either in a single instrument or in two or more related
instruments and whatever its particular designation (Art. 2 (1) (a), Vienna
Convention on Law of Treaties).
INTERNATIONAL CONVENTIONS AND INTERNATIONAL CUSTOMS
Examples of bilateral treaties entered into by the Philippines are the
Mutual Defense Treaty with USA, signed on 30 August 1959; Visiting
Forces Agreement with USA, signed on 10 February 1998; and RP-US
Extradition Treaty with USA, signed on 13 November 1995.
At times, the Philippines also enter into multilateral treaties or
conventions with two or more states. An example of which is the 1982
United Nations Convention on the Law of the Sea (UNCLOS). Other
examples are the International Convention on Civil and Political Rights, Rome
Statute of the International Criminal Court, and Convention on the Prevention
and Punishment of the Crime of Genocide.
International customs or Customary international law reflects certain
practices that States follow in a repeated and consistent manner and that they
accept as law ( opinio juris ). Defined by the International Court of Justice (ICJ)
as “evidence of a general practice accepted as law” (Art. 38.1 of ICJ Statute).
A rule becomes customary international if two requirements are met: (1) There
is a state practice that "appears to be sufficiently widespread, representative
as well as consistent" showing that a significant number of states have used
and relied on the rule in question and the concept has not been rejected by a
significant number of states,
(2) states were motivated by a belief that they were legally compelled to
accept the legitimacy of the rule in question because customary international
law obligated them to do so (opinio juris).
KIND OF INTERNATIONAL CUSTOM
Regional Custom is a practice among states within a particular areas of the
world which can be sufficiently well-established and accepted as law that a
binding among the states of that region but not elsewhere (Epps & Graham,
2011).
A Special or Local Custom is the long contained practice between two
states accepted by them as regulating their relations that form the basis of
mutual rights and obligations ( Right of Passage Case (Portugal v. India). ICJ.
1960).
JUS COGENS AND OBLIGATIONS ERGA OMNES
Jus cogens in international law, the term "jus cogens" (literally, compelling
law") refers to norms that command peremptory authority, superseding
conflicting treaties and custom.
Jus cogens norms are considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified only by general
international norms of equivalent authority
Erga omnes means "towards all". Obligations erga omnis are concerned
with the enforceability of norms of international law, the violation of which is
deemed to be an offence not only against the state directly affected by the
breach, but also against all members of the international community.
Treaties a binding formal agreement, contract, or
other written instrument that establishes
obligations between two or more subjects of
international law (primarily states and
international organizations).
Pacta tertiis nec nocent prosunt - A treaty
binds the parties and only the parties; it does
not impose responsibilities on a third state,
according to the Latin adage or phrase.
Pacta sunt servanda - A Latin phrase meaning “Agreements
must be kept” and is possibly the most ancient precept of
international law. According to Article 26 of the Vienna
Convention on Law of Treaties, every treaty in effect is
binding on the parties to it and must be carried out by them
in good faith.
Rebuc sic stantibus - According to paragraph one, article 62 of the Vienna
Convention on Law of Treaties, “Things standing thus” refers to a fundamental
change in circumstances that has occurred with regard to those that existed at
the time of the treaty and which was not anticipated by the parties. This change
in circumstances may be invoked as a ground for terminating or withdrawing
from the treaty if the existence of those circumstances constituted an essential
basis of the parties’ consent to be bound by the treaty and the effect of the
change is to drastically alter the scope of the obligations still to be fulfilled under
the treaty.
An executive agreement is one that the President concludes using either the
inherent authority provided to him or her by the Constitution or the authority granted
by Congress. This is not the same as a treaty because the latter deals with a covenant
the President signed with the Senate’s advice and approval. A minimum of two-thirds
of the Senate’s members must approve for a treaty or international agreement to be
deemed legitimate and effective (Sec. 21, Article VII, 1987 Constitution). As long as
the negotiating officials have acted within their authority, executive agreements and
treaties are legally obligatory on the states (USAFFE Veterans Association Inc. v.
Treasurer of the Philippines, G.R. No L-10500, June 30, 1959).
According to the 2014 Sarmiento, a concordat
is a treaty or agreement between the Pope and
a state or government that addresses religious
issues and the Holy See’s recognition and
privileges in other states.
International law is a law that governs states and their international persons. It
is based not only on international covenants but also on international customs.
By adoption, principles of international law become part of Philippine law.
Treaties are international covenants that can be entered into by Philippine
presidents and subject to ratification by the Senate. Its formation entails a
number of steps, and its implementation causes positive and negative effects
on the country.
Saumya. (2020, July 10). Pacta Tertis Nec Nocent Nec Prosunt I JudicateMe.
Judicateme.com. https://judicateme.com/pacta-tertis-nec-nocent-nec-
prosunt/#:~:text=The%20maxim%20%E2%80%9CPacta%20Tertis%20NEC,consenti
ng%20parties%20to%20the%20agreement.
Pacta sunt servanda I law principle. (n.d.). Encyclopedia Britannica.
https://www.britannica.com/topic/pacta-sunt-servanda
Rebuc sic stantibus I law principle I Britannica. (n.d.). Www.britannica.com.
https://www.britannica.com/topic/rebus-sic-stantibus
Topic 9- General Principles of International Law.pptx

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Topic 9- General Principles of International Law.pptx

  • 2.
  • 3.
  • 4. • Understand the basic principles of international law; 2. Determine international customs and obligations; and 3. Understand the full concept of treaties. After this lesson, you should be able to:
  • 5. • International law - laws that regulate relations of states and international persons. • National law - laws that regulate individuals among themselves or within the states. • Treaty - an international agreement conducted between states, in written form and governed by international law, whether embodied in a single instrument or two or more related instruments, whatever its particular designation (Art. 2 (1) (a), Vienna Convention on Law of Treaties)
  • 6. International law regulates relations of states and international persons. It is derived from treaties, international customs, and general principles of law. If conflict arises, the same is resolved through state to state transactions. On the other hand, national law regulates relations of individual among themselves or within the state. It consists of statutory enactments, executive orders, and judicial pronouncements. If there is conflict, the same is redressed through local, administrative, and judicial processes. International Law and National Law
  • 7. How does international law become a part of the law of the state? There are two doctrines of adoption: doctrine of incorporation and doctrine of transformation. The doctrine of incorporation is mainly based under Section 2, Art. II of the 1987 Constitution which states that: “xxx the Philippines adopts the generally accepted principles of International Law as part of the law of the land.” Thus, the generally accepted principles of international law are considered as part of a state’s national law by reason of its membership in the family of nations
  • 8. The doctrine of transformation requires the enactment by the legislative such international law principles are sought to be part of municipal law (Coquia & Defensor-Santiago, 2005). This doctrine must be related to the power of the President to enter into treaties wherein rule and principles embodied in said treaties would be transformed into the Philippine law and would become valid and effective upon the concurrence of two-thirds(2/3) of all the members of the Senate(Sec. 21, Art VII, 1987 Constitution).
  • 9. International conventions are international agreements concluded between States, in written form, and governed by International Law, embodied either in a single instrument or in two or more related instruments and whatever its particular designation (Art. 2 (1) (a), Vienna Convention on Law of Treaties). INTERNATIONAL CONVENTIONS AND INTERNATIONAL CUSTOMS Examples of bilateral treaties entered into by the Philippines are the Mutual Defense Treaty with USA, signed on 30 August 1959; Visiting Forces Agreement with USA, signed on 10 February 1998; and RP-US Extradition Treaty with USA, signed on 13 November 1995. At times, the Philippines also enter into multilateral treaties or conventions with two or more states. An example of which is the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Other
  • 10. examples are the International Convention on Civil and Political Rights, Rome Statute of the International Criminal Court, and Convention on the Prevention and Punishment of the Crime of Genocide. International customs or Customary international law reflects certain practices that States follow in a repeated and consistent manner and that they accept as law ( opinio juris ). Defined by the International Court of Justice (ICJ) as “evidence of a general practice accepted as law” (Art. 38.1 of ICJ Statute). A rule becomes customary international if two requirements are met: (1) There is a state practice that "appears to be sufficiently widespread, representative as well as consistent" showing that a significant number of states have used and relied on the rule in question and the concept has not been rejected by a significant number of states,
  • 11. (2) states were motivated by a belief that they were legally compelled to accept the legitimacy of the rule in question because customary international law obligated them to do so (opinio juris). KIND OF INTERNATIONAL CUSTOM Regional Custom is a practice among states within a particular areas of the world which can be sufficiently well-established and accepted as law that a binding among the states of that region but not elsewhere (Epps & Graham, 2011). A Special or Local Custom is the long contained practice between two states accepted by them as regulating their relations that form the basis of mutual rights and obligations ( Right of Passage Case (Portugal v. India). ICJ. 1960).
  • 12. JUS COGENS AND OBLIGATIONS ERGA OMNES Jus cogens in international law, the term "jus cogens" (literally, compelling law") refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority Erga omnes means "towards all". Obligations erga omnis are concerned with the enforceability of norms of international law, the violation of which is deemed to be an offence not only against the state directly affected by the breach, but also against all members of the international community.
  • 13. Treaties a binding formal agreement, contract, or other written instrument that establishes obligations between two or more subjects of international law (primarily states and international organizations).
  • 14. Pacta tertiis nec nocent prosunt - A treaty binds the parties and only the parties; it does not impose responsibilities on a third state, according to the Latin adage or phrase.
  • 15. Pacta sunt servanda - A Latin phrase meaning “Agreements must be kept” and is possibly the most ancient precept of international law. According to Article 26 of the Vienna Convention on Law of Treaties, every treaty in effect is binding on the parties to it and must be carried out by them in good faith.
  • 16. Rebuc sic stantibus - According to paragraph one, article 62 of the Vienna Convention on Law of Treaties, “Things standing thus” refers to a fundamental change in circumstances that has occurred with regard to those that existed at the time of the treaty and which was not anticipated by the parties. This change in circumstances may be invoked as a ground for terminating or withdrawing from the treaty if the existence of those circumstances constituted an essential basis of the parties’ consent to be bound by the treaty and the effect of the change is to drastically alter the scope of the obligations still to be fulfilled under the treaty.
  • 17. An executive agreement is one that the President concludes using either the inherent authority provided to him or her by the Constitution or the authority granted by Congress. This is not the same as a treaty because the latter deals with a covenant the President signed with the Senate’s advice and approval. A minimum of two-thirds of the Senate’s members must approve for a treaty or international agreement to be deemed legitimate and effective (Sec. 21, Article VII, 1987 Constitution). As long as the negotiating officials have acted within their authority, executive agreements and treaties are legally obligatory on the states (USAFFE Veterans Association Inc. v. Treasurer of the Philippines, G.R. No L-10500, June 30, 1959).
  • 18. According to the 2014 Sarmiento, a concordat is a treaty or agreement between the Pope and a state or government that addresses religious issues and the Holy See’s recognition and privileges in other states.
  • 19. International law is a law that governs states and their international persons. It is based not only on international covenants but also on international customs. By adoption, principles of international law become part of Philippine law. Treaties are international covenants that can be entered into by Philippine presidents and subject to ratification by the Senate. Its formation entails a number of steps, and its implementation causes positive and negative effects on the country.
  • 20. Saumya. (2020, July 10). Pacta Tertis Nec Nocent Nec Prosunt I JudicateMe. Judicateme.com. https://judicateme.com/pacta-tertis-nec-nocent-nec- prosunt/#:~:text=The%20maxim%20%E2%80%9CPacta%20Tertis%20NEC,consenti ng%20parties%20to%20the%20agreement. Pacta sunt servanda I law principle. (n.d.). Encyclopedia Britannica. https://www.britannica.com/topic/pacta-sunt-servanda Rebuc sic stantibus I law principle I Britannica. (n.d.). Www.britannica.com. https://www.britannica.com/topic/rebus-sic-stantibus