PUBLIC INTERNATIONAL LAW (SOURCES OF INTERNATIONAL LAW)

SEE HERE: Vienna Convention on the Law of Treaties (1969) (un.org)

 

Pacta Sunt Servanda agreements must be kept;  EXC: Rebuc Sic Stantibus the treaty is unenforceable because of fundamental change in circumstances. EXC to the EXC: a. The treaty establishes a boundary; b. The state seeking the termination or withdrawal is the party-in-breach (Art. 62[2]

 

5 CONDITIONS/ELEMENTS FOR THE APPLICATION OF REEBUC SIC STANTIBUS:

1.     The change must be of circumstances existing at the time the treaty was made

2.    The change of circumstances must be “FUNDAMENTAL”

3.    The change must not have been foreseen by the parties

4.    The existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty in the first place

5.    The effect of the change must be radically to transform the extent of the obligation still to be performed under the treaty.

 

 

Principle of Complementarity

The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality, are unwilling or unable to genuinely carry out proceedings.

In the case of Duterte, there was no initial step from the Philippine Prosecutors to investigate the case of mass killings hence the ICC took cognizance of the case.

 

Limitations under the Vienna convention on the Law of Treaties

1.       Non-application to other subjects of international law, between them and states, and between themselves (Art. 3) (Note however that International Organizations can enter into treaties with States, other International Organizations)

2.      Non-retroactivity in application (Art. 4)

 

Sources of International Law

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

  1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
  2. international custom, as evidence of a general practice accepted as law;
  3. the general principles of law recognized by civilized nations;
  4. 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 provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. (Art. 38 of the International Court of Justice)

 

1.       Formal Sources

a.     International conventions (treaties) -contains terms which the contracting parties are obliged to respect, conform and obey under the principle of pacta sunt servanda (Agreement must be kept)

EXCEMPTION TO THE PRINCIPLE: Principle of Clausula Rebuc Sic Stantibus - the unenforceability of a treaty due to fundamentally changed circumstances. 

 

What is a treaty?

(a)    “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation; (Art. 2, par 1, subsection a, Venna Convention on the Law of Treaties)

 

Elements of a treaty (ICOWGOW)

1.       International Agreement

2.      COncluded between States

International Organizations can enter into a treaty with a State or other international organization

 

CAN A NON-STATE WHO IS NOT PARTY TO THE VIENA CONVENTION ENTER INTO A TREATY WITH PARTY STATES?

Yes, because the Vienna Convention is already a customary international Law.

3.      Written Form

4.      GOverned by International Law

Does the Vienna Convention apply when a State wants to establish embassy in another State or with military contracts? No, Domestic Contracts apply, not international law.

5.    Whether embodied in a single instrument or in two or more related Instruments.

Abaya v. Ebdane (G.R. No. 167919) exchange notes consist of two documents, is covered by international law.

 

 

Other terms of a treaty

1.       Convention

2.      Agreement

3.      Charter

4.      Memorandum of Agreement

 

Memorandum of Understanding is NOT a legal instrument

 

TREATY

NON-TREATY

Agree

Agreement

Enter into force

Mutually agreed

Obligations

Parties

Rights

Shall

Undertaking

Decide, Accept, Approve

Arrangement, Understanding

Come into operation

Jointly decided

Commitments

Participants

Benefits

Will

Understanding

                       

There is no difference between treaties and international agreements Bayan vs. Zamora (G.R. No. 138570, October 20, 2000)

 

Executive agreements are international agreements that pertains to mere adjustments of detail that carry out well entrenched national policies and traditions in line with the function of the executive. (Commissioner of Customs v. Eastern Sea Trading, G.R> No. L-14279)

 

Treaties in contrast, are international agreements involving political issues or changes of national policy and those involving international agreements of a permanent character.

 

Guidelines in the Negotiation of Agreements and its Ratification (E.O. No. 459, November 25, 1997)

 

A.    International Agreement -refer to a contract or understanding regardless of nomenclature, entered into between the Philippines and another government in written form and governed by international law, whether embodied in a single instrument or in two or more related instrument.

B.    Treaties -international agreements entered into by the Philippines which require legislative concurrence after executive ratification. The term may include conventions, declarations, covenants and acts.

C.   Executive Orders -similar to treaties except that they do not require legislative concurrence.

 

 

Section 21, Article VII, 1987 Constitution: No treaty or international Agreement shall be valid and effective unless concurred by at least two-thirds of all the Members of the Senate.

 

Saguisag v. Ochoa, G.R. No. 212426

Bayan Muna v. Zamora

Lim v. Executive Secretary, G.R. No. 151445, April 11, 2002

 

 

STAGES OF TREAATY FORMATION

1.     representation

(c) “full powers” means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;

 

WHO ISSUES FULL POWERS? B-the president through the Secretary of Foreign Affairs.

 

Persons that can represent a state without full powers

1. Head of State and Secretary of foreign affairs, for the purposes of performing all the acts relating to the conlusion of a treaty (Art. 7 [2][a])

2. Head of the diplomatic mission, for the purpose of adopting the text treaty between the accrediting state and the statee to which they are accredited (Art. 7[2][b]

3. Accredited representative to an international conference or international organization and its organs, for the purpose of adopting the text of the treaty in that conference, organization, or organ (Art. 7[2][c]

4. Person with apparent full powers

5. Subsequently confirmed (Art. 8)

 

2.    Negotiation (Adoption and authentication)

3.      Signature (with or without representation) -the state expressing itself to be bound by the treaty: 1. Signature; 2. Exchange of instruments; 3. Accession; 4. Ratification/Acceptance/Approval; 5. Any other means agreed to by the parties. (Art. 11)

 

Signature is one way of expressing consent to be bound while Authentication is the act of certifying the text of the treaty and all the translation of that treaty.

 

Accession is means that a State can still be a member of a treaty notwithstanding that the treaty has elapsed.

 

Reservation is done before signing the instrument; It is the process where a state exempts itself from the application of some of the provisions of the treaty.

 

WHY IS RESERVATION ALLOWED? In order to encourage a state to enter into a treaty even if they do not agree in its entirety.

 

When does a reservation ineffective? (Art. 19)

1. When Prohibited by the treaty

2. If the reservation is not in the exclusive list provided in the treaty

3. If the reservation is contrary to the object and purpose of a treaty

 

Art. 20, Vienna Convention

Acceptance of and objection to reservations

1. A reservation expressly authorized by a treaty does not require acceptance by other states

2. Acceptance by all parties is required when there is limited number of the negotiating States and the object and purpose is that it must be applied in its entirety.

3. When a treaty is a constituent instrument of an international organization, a reservation requires the acceptance of the competent organ of that organization

 

4.    Ratification (Art. 19-23)

Also called acceptance or approval.

The process of ratification differs from country to country. In the Philippines, we apply Section 21, Art. VII.

5.    Entry into force

Example: ASEAN took effect thirteen days after the deposit of the instrument The ASEAN Charter 16032020

 

6. Withdrawal/Termination/Suspension

The general rule is that when a treaty does not contain a provision of withdrawal, termination or suspension, it is not allowed. It is not encouraged because it will weaken the effects of the treaty.

 

            EXEMPTION

                        1. When it is the intention of the parties (Art. 56)

                        2. When it is implied by nature of the treaty (Art. 56)

                        3. Supervening impossibility of performance (Art. 61)

4. Principle of Clausula Rebuc Sic Stantibus (Art. 62 [1][a] and [b] (example; there is a complete, part destruction of a marine resources that is covered by a treaty)

                        Exception to Rebus Sic Stantibus
                                    a. The treaty establishes a boundary

b. The state seeking the termination or withdrawal is the party-in-breach (Art. 62[2]

 

b.    International customs

c.    The general principles of law

 

2.    ___________________________________________________________________________

b. Customary International Law

General and consistent practice of states followed by them from a sense of legal obligation. (Not written)

 

Key requirements for customary international law

1.    Uniform and consistent state practice

Paquete Havana Case (175 U.S. 677 [1900])

: There was no treaty on the matter. What the court did was examine state practice since the 1400’s through the 18000’s and found that by ancient usage by civilized nations, and also through various declarations by coastal state like Spain and UK that fishing vessels pursuing vocation of catching fish, are exempt, with their cargoes and crews, from capture of prize of war.

 

State Practice must satisfy the following

a.    Duration (long period of time)

b.    Consistency (following it uninterruptedly)

c.    Generality of the Practice of States (majority of states performing the practice)

 

2.    Belief among states that such practice is legally compelled or opinio juris Sive necessitatis -why do states behave as they do? Is it because they do it obligatory or just a matter of courtesy to other states? If they, do it out of obligation it satisfies the second element.

Persistent Objector Rule -the Court appears to support the idea that an existing customary law rule would not apply to a State if (1) it objected to the application of the rule to itself (2) at the initial stages and (3) in a consistent manner. (Anglo-Norwegian Fisheries Case)

 

Jus Cogens a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only a subsequent norm of general international law having the same character 9Art. 53) such as prohibitions on the use of force, genocide, racial discrimination, etc.

Jus cogens

Customary International Law

Treaty

a SUPER customary international law because it RANKS higher than ordinary customary international law.

Persistent objection rule

Treaty cannot bind a state unless ratified by the state.

No deviation is allowed.

Customary international law can be repealed by law of the state.

 

Is founded on notion of universal morality

customary international law is founded on the consensual state practice.

 

 

Criticisms of the Customary International Law

1.    Imprecise source of international law fir it may vary over time

2.    It is difficult to analyze the practice of 193 states worldwide, much more with respect to opinion juris

3.    Difficulty in ascertaining practice, there is only a reliance on abstract declarations of states rather than demonstration of actual state practice

4.    It is subject to the bases of powerful developed countries

 

Obligation Erga Omnes

1.    They are basically the rights and obligations owed to all states

2.    Violations of obligations erga omnes are considered offence not only against the state directly affected by the breach, but also against all members of the international community

3.    According to the ILC, commission of international crime constitutes a violation of erga omnes obligation

Jus cogens refers to particular types of norms and obligations erga omnes refers to the character of obligations. Jus cogens norms give rise to erga omnnes obligations. That is the relationship between the two concepts

 

International Crimes Include serious breach of violation of:

1.    Maintenance of international peace and security

2.    Safeguarding the human being

3.    Safeguarding the preservation of the human environment

 

Ex aequo et bono (Paragraph 2, Art, 38 of the State of the International Court of Justice. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

 

he North Sea Continental Shelf Cases -The use of the equidistance method had not crystallized into customary law and the method was not obligatory for the delimitation of the areas in the North Sea related to the present proceedings. The court did not apply art 6 of the Geneva Convention and applied Ex aequo et bono principle upon agreement of the parties.

 

C. General Principle of International Law (Art. II, Section II of the 1987 Constitution)

1. Principle that exist in the NATIONAL LAWS of States worldwide: e.g. No one can judge a case in which they have an interest; breach of agreement involves obligation to make reparation

2. Principles derived from the SPECIFIC NATURE OF THE INTERNATIONAL COMMUNITY e.g., Pacta sunt Servanda; principle of non-intervention

3. Principles INTRINSIC TO THE IDEA OF LAW

4. Principles that arise from the notion of JUSTICE AND FAIRNESS e.g., prohibition of discrimination on account of race

 

Additional Sources of International Law

1.    Law-Making by International Organization refers to the law generated by an organ of an international organization that is regarded as binding on members.

2.    Non-Legally Binding Norms or Soft Law not legally binding and therefore not a law. It only has the effect of ordering the relations of states or signals the possible emergence of an international law.

                                         i.    Vague or general treaty provisions

a.    Too abstract toe implemented automatically (abstract/non-implementing rules) e.g., Art. 105

b.    Call for general cooperation e.g., Art. 5 of the convention on biological diversity

c.    Agreement to agree on certain matter e.g., Art. 2 of the Vienna Convention

                                        ii.    Declaration or political pacts (gentleman’s agreement) that set fort the aspiration by the state

                                      iii.    Recommendary resolutions of international organizations

                                      iv.    Codes of behavior for states or non-state actors

 

Hard Law legally binding through the consent of party states; Soft Law Is not binding and not enforceable in any court of law. (2008 BAR Exam)

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