Concepts | PUBLIC INTERNATIONAL LAW

Public International Law: Concepts

Public International Law is the body of legal rules, norms, and principles that governs the relationships between sovereign states and other international actors, such as international organizations and, to a lesser extent, individuals. This field of law aims to regulate interactions on matters like peace, security, human rights, environmental protection, and trade. In this section, we will delve into key concepts under Public International Law.

1. Definition and Nature of Public International Law

Public International Law refers to the legal framework governing the conduct of states and international organizations in their relations with one another. Unlike national law, which is imposed on individuals by a sovereign, Public International Law primarily applies to sovereign states and other entities such as international organizations.

Key Characteristics:

• Horizontal System: Public International Law operates in a horizontal legal structure. States are considered equals, and there is no central authority to enforce compliance.
• Voluntary Compliance: States are sovereign, meaning they are generally free to accept or reject international obligations. Compliance with international law is often based on consent (through treaties, conventions, etc.).
• Sources of Law: The sources of Public International Law are set out in Article 38 of the Statute of the International Court of Justice (ICJ) and include treaties, customary international law, general principles of law, judicial decisions, and writings of publicists.

2. Sources of Public International Law

The sources of Public International Law serve as the foundation for the rules and norms that govern international relations.

• Treaties: Formal agreements between states that are binding under international law. Examples include bilateral or multilateral treaties, conventions, and protocols.
• Customary International Law: Practices that have evolved over time and are considered legally binding, even if not written down. It arises from a consistent and general practice of states, accepted as law (opinio juris).
• General Principles of Law: Fundamental principles that are recognized by a majority of national legal systems. These may fill gaps when neither treaties nor customary law provide guidance.
• Judicial Decisions and Writings of Publicists: Decisions of international courts, such as the International Court of Justice (ICJ), and respected legal scholarship can be used as subsidiary means to determine rules of law.

3. Subjects of Public International Law

Subjects of Public International Law are entities capable of possessing international rights and duties. Traditionally, states are the primary subjects, but over time, other actors have gained limited or specialized international legal personality.

• States: The primary and most important subjects. States must possess defined territory, permanent population, government, and the capacity to enter into relations with other states (Montevideo Convention, 1933).
• International Organizations: Entities such as the United Nations (UN) or World Trade Organization (WTO) that have international legal personality. Their capacity to act and bind their members is typically derived from treaties.
• Individuals: Under certain circumstances, individuals can also be subjects of international law, particularly in areas such as human rights and international criminal law. For instance, individuals may be held accountable for crimes against humanity, genocide, or war crimes (as seen in cases before the International Criminal Court).
• Non-Governmental Organizations (NGOs): While not traditional subjects of international law, NGOs play a significant role in influencing international legal developments, especially in human rights, environmental law, and humanitarian aid.

4. Principles of Public International Law

Several fundamental principles guide the conduct of states and international actors in their relations under Public International Law:

• Sovereignty: The principle of state sovereignty recognizes that states have supreme authority within their own territories. It implies non-interference in the internal affairs of other states, a cornerstone of international relations.
• Equality of States: All states, regardless of size or power, are legally equal in their rights and duties under international law.
• Non-Intervention: States are prohibited from interfering in the internal affairs of other states, including their political, economic, and cultural systems.
• Prohibition of the Use of Force: Under the United Nations Charter, the use of force is generally prohibited unless sanctioned by the UN Security Council or in self-defense.
• Self-Determination of Peoples: This principle allows peoples to freely determine their political status and pursue economic, social, and cultural development. It has been key in decolonization movements and is recognized in human rights law.
• Pacta Sunt Servanda: This principle mandates that treaties and agreements must be honored in good faith. It underscores the binding nature of international treaties once they are accepted by the parties involved.
• Responsibility to Protect (R2P): A more recent principle which holds that the international community has a responsibility to intervene, particularly in cases of genocide, war crimes, ethnic cleansing, and crimes against humanity, if a state is unwilling or unable to protect its population.

5. International Legal Personality

An entity with international legal personality is one capable of possessing rights and duties under international law and can engage in international legal relations. The concept determines who is capable of participating directly in international law processes.

• States: The primary holders of international legal personality.
• International Organizations: Limited legal personality, usually bound by the powers conferred by their member states via treaties.
• Individuals: Limited international legal personality, mostly in areas such as human rights and international criminal law.

6. Jurisdiction in Public International Law

Jurisdiction refers to the legal authority a state or international tribunal has to make and enforce laws. In Public International Law, jurisdiction can take several forms:

• Territorial Jurisdiction: A state has jurisdiction over all persons, property, and activities within its territory.
• Extraterritorial Jurisdiction: States may assert jurisdiction over actions that occur outside their territory, such as crimes committed by their nationals abroad.
• Universal Jurisdiction: Certain crimes, such as piracy, genocide, and crimes against humanity, are so severe that any state may prosecute the offenders, regardless of where the crime was committed or the nationality of the perpetrators.
• Diplomatic Immunity: Under the Vienna Convention on Diplomatic Relations (1961), diplomats enjoy immunity from the jurisdiction of the host state, but this is balanced by the sending state's duty to respect the laws of the host state.

7. State Responsibility

State responsibility is a fundamental principle of international law, holding states accountable for breaches of their international obligations. If a state violates international law, it must provide reparation, which may take the form of restitution, compensation, or satisfaction.

• Attribution: The conduct must be attributable to the state for it to incur responsibility, typically involving actions by state organs or agents acting on behalf of the state.
• Breach of an Obligation: There must be a violation of an international obligation.
• Consequences: The responsible state may face consequences, such as diplomatic measures, sanctions, or even legal actions before international courts or arbitration.

8. Recognition in International Law

Recognition in international law refers to the acceptance by other states of the legal status of a new state or government.

• De Facto Recognition: Given when a government has control over a state’s territory but lacks long-term stability or full international recognition.
• De Jure Recognition: Granted when a government is recognized as having full legal status and permanence.
• Non-Recognition: Some situations may prompt non-recognition, such as when a state is created through illegal means, such as the use of force, as in cases of occupation or annexation.

9. International Dispute Resolution

Public International Law provides mechanisms to resolve disputes between states or between states and other actors. These mechanisms can be diplomatic or judicial.

• Diplomatic Means: These include negotiation, mediation, conciliation, and arbitration. These approaches rely on mutual agreement between the parties involved.
• Judicial Means: States may resolve disputes through international courts, such as the International Court of Justice (ICJ), which adjudicates legal disputes submitted by states and gives advisory opinions on legal questions.

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In conclusion, Public International Law establishes the rules and norms for state interactions and is rooted in principles of state sovereignty, equality, and non-intervention, among others. Its sources include treaties, customary law, and general legal principles, while its subjects encompass states, international organizations, and, to a limited degree, individuals. The principles of Public International Law are essential in maintaining global order and ensuring the peaceful coexistence of states.

Relationship Between International and Philippine Domestic Law | PUBLIC INTERNATIONAL LAW

POLITICAL LAW AND PUBLIC INTERNATIONAL LAW: Relationship Between International and Philippine Domestic Law

The relationship between international law and domestic law in the Philippines involves a complex interaction of principles and legal doctrines. Below is a meticulous breakdown of the subject:

1. Supremacy of the Philippine Constitution

The 1987 Philippine Constitution is the supreme law of the land. Any law, whether domestic or international, must conform to its provisions. Under Article II, Section 2, the Constitution provides the foundation for how international law interacts with domestic law:

“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 the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”

This provision recognizes international law as part of Philippine law. However, it is not absolute, as international law is incorporated into domestic law subject to the Constitution's supremacy.

2. Doctrine of Incorporation

The doctrine of incorporation is embodied in Article II, Section 2 of the Constitution. This doctrine states that generally accepted principles of international law are automatically part of the Philippine legal system without the need for legislative action.

2.1. Generally Accepted Principles of International Law

• These include norms of customary international law, jus cogens norms (peremptory norms that no state may derogate from), and other universal legal principles.
• Customary international law becomes binding as part of the law of the land when it meets two requirements: state practice and opinio juris (belief that the practice is legally obligatory).

In this regard, courts may enforce these principles as domestic law even without specific implementing legislation.

3. Doctrine of Transformation

While the doctrine of incorporation applies to customary international law, treaties and other international agreements are governed by the doctrine of transformation, meaning they do not automatically become part of Philippine law. They must be transformed into domestic law through legislative enactment.

3.1. Treaties and International Agreements

Under Article VII, Section 21 of the Constitution, treaties and international agreements must undergo the following process:

• Negotiation and signing by the Executive branch.
• Ratification by the President, subject to the concurrence of at least two-thirds of all the Members of the Senate.

Only after Senate concurrence does a treaty become binding and enforceable as part of Philippine law.

4. Hierarchy between Domestic Law and International Law

4.1. Constitution vs. International Law

The Philippine Constitution remains the highest law in the land. In case of a conflict between a provision of the Constitution and a treaty or an international agreement, the Constitution prevails. This principle is crucial in ensuring the Philippines maintains sovereignty over its domestic legal system, despite its international obligations.

4.2. International Law vs. Statutes

In instances where a statute conflicts with international law, Philippine courts often attempt harmonization. If harmonization is not possible, domestic laws may prevail, especially if the international law is a treaty that has not been transformed into domestic law. However, courts may rule in favor of treaties in cases where no direct conflict with the Constitution exists, based on the principle that the Philippines adheres to its international obligations in good faith.

4.3. Case Law on International Law's Application

• Kuroda v. Jalandoni (1949): The Supreme Court held that the generally accepted principles of international law are automatically incorporated into the Philippine legal system and do not require legislative enactment.
• Mejoff v. Director of Prisons (1951): This case emphasized that international law principles, especially those involving human rights, are incorporated into Philippine law.
• Secretary of Justice v. Lantion (2000): The Court discussed the application of treaties in domestic law, holding that the doctrine of transformation requires Senate concurrence for a treaty to become part of domestic law.

5. International Customary Law

Customary international law, which consists of unwritten rules derived from the consistent practice of states and is binding even without a treaty, is recognized as part of Philippine domestic law under the doctrine of incorporation. The courts may enforce customary international law principles without further legislative action.

5.1. Examples of Customary International Law

• The prohibition of torture.
• The prohibition of slavery and genocide.
• Principles of territorial sovereignty and non-intervention.

6. Philippine Courts and International Law

6.1. Judicial Notice of International Law

Philippine courts may take judicial notice of generally accepted principles of international law. Courts do not require these principles to be proven in the same way that foreign laws or facts would need to be.

6.2. Judicial Interpretation and Application

In interpreting laws, Philippine courts are guided by the principle of pacta sunt servanda (agreements must be kept), meaning the Philippines, as a member of the international community, must uphold its international obligations in good faith. However, the courts also balance this with the sovereign will of the Filipino people as expressed in the Constitution.

7. Soft Law and International Guidelines

While soft law—such as United Nations declarations, resolutions, and international guidelines—may influence domestic legal interpretations, it is generally not enforceable unless transformed into domestic law. However, these norms often guide judicial decisions and policy-making, especially in areas like human rights and environmental protection.

8. Recent Developments in Philippine Jurisprudence

Philippine courts continue to develop their interpretation of the relationship between international and domestic law, particularly in the context of human rights, environmental law, and international trade. The Philippines’ involvement in the United Nations Human Rights mechanisms, the International Criminal Court, and the World Trade Organization reflect an evolving jurisprudence that seeks to harmonize domestic legal frameworks with international norms and obligations.

8.1. Environmental Law and International Obligations

In Oposa v. Factoran (1993), the Supreme Court ruled that intergenerational responsibility and sustainable development, principles recognized internationally, could be applied domestically to protect the right to a balanced and healthful ecology.

8.2. Human Rights and International Law

The Philippine courts have shown deference to international human rights law in various decisions. For instance, the Writ of Amparo and the Writ of Habeas Data, which protect individuals from human rights abuses, were developed by the Supreme Court based on international human rights principles.

9. Conclusion

In summary, the relationship between international law and Philippine domestic law is primarily governed by the Constitution, which recognizes international law but remains supreme. The doctrine of incorporation applies to customary international law, while the doctrine of transformation governs treaties and international agreements. Philippine courts seek to harmonize international law with domestic law, but in cases of conflict, the Constitution prevails.

International law plays a significant role in the development of Philippine law, especially in human rights, environmental law, and international trade, but always within the context of constitutional supremacy.

International Court of Justice Statute | Sources of International Law | PUBLIC INTERNATIONAL LAW

Sources of International Law: International Court of Justice (ICJ) Statute

The International Court of Justice (ICJ), established by the Charter of the United Nations, is the principal judicial organ of the United Nations. The ICJ Statute is a key document that defines the Court's functions, including the sources of international law it applies when deciding disputes brought before it. Article 38 of the ICJ Statute is considered one of the most authoritative statements on the sources of international law. Below is a meticulous breakdown of the relevant provisions and doctrines:

Article 38 of the ICJ Statute: Primary Sources of International Law

Article 38(1) of the ICJ Statute enumerates the primary sources of international law that the ICJ is to apply in its adjudication of disputes. These sources are widely accepted as the formal sources of international law:

1. International Conventions (Treaties)
   Article 38(1)(a): International conventions, whether general or particular, establish rules expressly recognized by the states involved in the dispute.

   • Treaties are binding agreements between states or international organizations, and they constitute one of the most significant sources of international law. Treaties may be bilateral, multilateral, or even universal, such as the UN Charter or the Vienna Convention on the Law of Treaties.
   • States are only bound by treaties to which they have consented, through ratification, accession, or other formal mechanisms, which are governed by the principle of pacta sunt servanda (agreements must be kept).

2. International Custom
   Article 38(1)(b): International custom, as evidence of a general practice accepted as law.

   • Customary international law arises from a consistent practice of states accompanied by opinio juris, the belief that such practice is legally obligatory. Both elements, state practice and opinio juris, must be present for a norm to be recognized as customary law.
   • Customary law binds all states, except those that have persistently objected during the formation of the custom. Examples include the prohibition of the use of force and the rules of international humanitarian law.

3. General Principles of Law
   Article 38(1)(c): The general principles of law recognized by civilized nations.

   • General principles are those legal norms that are common to major legal systems around the world, transcending national boundaries. These principles fill gaps in treaties or customary law and include concepts such as good faith, equity, justice, and due process.
   • They are often invoked in cases where there is no applicable treaty or custom. They help ensure the coherence and comprehensiveness of the legal system.

Subsidiary Sources of International Law

In addition to the primary sources, Article 38(1)(d) mentions subsidiary means for the determination of rules of law:

4. Judicial Decisions and the Teachings of the Most Highly Qualified Publicists
   Article 38(1)(d): 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.

   • Judicial decisions from international courts and tribunals, such as the ICJ, International Criminal Court (ICC), or regional courts, are not binding precedents in international law. However, they provide important guidance on how international law is interpreted and applied. The ICJ may also refer to decisions of national courts, but these are not considered binding.
   • Writings of legal scholars and publicists are also considered persuasive but not binding. These may include treatises, legal opinions, and academic commentary by leading authorities in international law. The ICJ often cites these writings to clarify or interpret complex legal principles.

Other Sources of International Law (Not Listed in Article 38)

While not explicitly listed in Article 38, there are other recognized sources of international law that play a role in international relations:

1. Resolutions of International Organizations

   • The UN General Assembly and Security Council resolutions may, in certain contexts, contribute to the development of customary international law or provide evidence of state practice. However, General Assembly resolutions are generally considered non-binding (except in certain situations like binding decisions of the Security Council under Chapter VII of the UN Charter).

2. Unilateral Declarations by States

   • In certain cases, unilateral declarations made by states may create legal obligations under international law, provided that these declarations are made publicly and with the intent to be bound (as established by the ICJ in the Nuclear Tests Case).

3. Soft Law Instruments

   • Soft law refers to non-binding norms, guidelines, or principles that may influence state behavior and contribute to the progressive development of international law. These can include declarations, codes of conduct, and policy recommendations adopted by international organizations or conferences.

Hierarchy of Sources under Article 38

• The ICJ Statute does not explicitly provide for a hierarchy between treaties, customary international law, and general principles of law. In practice, the Court considers these sources together and applies them as appropriate to the case. However, treaties generally take precedence when the parties to the dispute have agreed to specific obligations.
• Customary law may serve as a default where no treaty is applicable. General principles fill in the gaps but are rarely invoked as the sole basis for a decision.
• Subsidiary means, such as judicial decisions and teachings, are used primarily for interpretation and clarification, rather than as independent sources of law.

Jus Cogens Norms and Erga Omnes Obligations

Certain norms of international law are considered peremptory or jus cogens, meaning they are mandatory and non-derogable, such as the prohibitions on genocide, slavery, and torture. These norms override conflicting treaties and customs, and no derogation is permitted. Similarly, erga omnes obligations are duties that states owe to the international community as a whole, such as the prohibition of aggression or respect for fundamental human rights.

Conclusion

The sources of international law as outlined in Article 38 of the ICJ Statute form the backbone of how the ICJ and international law in general operate. Treaties, custom, and general principles, supported by judicial decisions and scholarly writings, guide the ICJ in resolving disputes and promoting international justice. The evolution of international law is shaped by both these formal sources and emerging practices like soft law and resolutions of international organizations, reflecting the dynamic nature of international relations.