TCW Chapter 7

International Law

laws that regulate relations of states and international persons.

National Law

laws that regulate individuals among themselves or within the state.

Treaty

an international agreement conducted between states, in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, whatever its particular designation

Treaty

a formally signed and ratified agreement between two or more nations or sovereigns; a contract between two or more countries that is adhered to by the nations party to it.

Doctrine of Incorporation

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”.

Doctrine of Transformation

requires the enactment by the legislative body of international law principles as are sought to be part of municipal law.

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

Two Elements of Internal Customs

• State Practice

• Opinio Juris Sive Necessitates

International Customs

also known as customary law, consists of rules of law derived from the conventions with two or more states

State Practice

States that there must be evidence of substantial uniformity or practice by a substantial number of states.

Opinio Juris Sive Necessitates

states that the belief that the given practice is rendered obligatory by the existence of a rule requiring it. Consequently, the states concerned must feel that they are confirming to what amounts to a legal obligation.

Jus Cogens (Compelling law)

occupy another category of international customs as these refer to norms that command peremptory authority, superseding conflicting treaties and customs which can neither be derogated nor modifies, except by a norm or similar character

Kinds of International Customs

• Regional custom

• Special or local custom

Regional custom

a practice among states within a particular area of the world which can be sufficiently well-established and accepted as law that is binding among the states if that region but not elsewhere.

Special custom

a long-continued practice between two states, accepted by hem as regulating their relations that form the basis of mutual rights and obligations

Jus cogens

enjoy a higher rank in the international hierarchy than treaty law and even ordinary customary rules

Example of Jus Cogens

• torture

• racial discrimination

• genocide

• piracy

Obligations Erga Omnes ("towards all")

• refers to an obligation under general international law that a state owes in any given case to the international community, in view of its common values and its concern for compliance, so that a breach of that obligation enables all States to take action

• an obligation under a multilateral treaty that a state party to the treaty owes in any given case to all the other state parties to the same treaty, in view of their common values and concern for compliance, so that a breach of that obligation enables to all these states to take action

Examples of Obligations Erga Omnes

prohibitions of acts of aggression, on genocide, and on the protection of basic human rights.

Basic Principles Concerning Treaties

• Pacta tertiis nec nocent nec prosunt

• Pacta sunt servanda

• Rebuc sic stantibus

Rebuc sic stantibus

• "Things standing thus"

• A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may be invoked as a ground for terminating or withdrawing from the treaty if the existence for those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty and the effect of the change is radically to transform the extent of the obligations still to be performed under the treaty

Pacta sunt servanda

• "Agreements must be kept"

• Every treaty in force is binding upon the parties to it and must be performed by them in good faith

Pacta tertiis nec nocent nec prosunt

"A treaty binds the parties and only the parties"

Concordat

a treaty or agreement between the Pope and a state or government that deals with religious matters as well as the recognition and privileges of the Holy See in other states

Executive agreement

an agreement concluded by the President based on authority granted by Congress or based on the inherent authority granted to him/her by the Constitution.