Public International Law Conspectus

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  • 8/9/2019 Public International Law Conspectus

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    Unofficial Quick Reference Conspectus on Public International Law

    Earl Louie M. Masacayan, Section 3AA (2010-2011); UST Faculty of Civil Law

    P a g e | 1

    Note: This Document does not ensure correct answers. Use at your own risk.

    I. Nature of International law

    1. Is International law a law?

    In the ultimate analysis, although the final enforcer

    is power, fundamentally, there is a general respectfor law because of the possible consequences of

    defiance either to oneself or the larger society.

    2. Bases of international law

    The basis for the authority of international law is

    the same as the basis for early laws of every

    character, namely, the general consent of those to

    be bound thereby, strengthened by custom and

    continued acquiescence. There is no common

    superior among nations to promulgate principles of

    international law, and on the other hand, no single

    nation can introduce a new principle into this

    system. Cornelius van Bynkershoek asserted that

    the bases of international law were customs and

    treaties commonly consented to by various states,

    while John Jacob Moser emphasized the importance

    of state practice in international law. The positivism

    school narrowed the range of international practice

    that might qualify as law,

    favoring rationality over morality and ethics. The

    1815 Congress of Vienna marked the formal

    recognition of the political and international legalsystem based on the conditions of Europe.

    3. Jus Cogens

    Jus Cogens is a fundamental principle

    of international law which is accepted by the

    international community of states as a norm from

    which no derogation is ever permitted. "Latin

    meaning "compelling law." This "higher law" may

    not be violated by any country. For example,

    genocide or slave trade may be considered to goagainst jus cogens. There is no clear agreement

    regarding precisely which norms are jus cogens nor

    how a norm reaches that status, but it is generally

    accepted that jus cogens includes the prohibition

    ofgenocide, maritime piracy, slaving in general (to

    include slavery as well as the slave trade), torture,

    and wars of aggression and territorial

    aggrandizement. Unlike ordinary customary law,

    which has traditionally required consent and allows

    the alteration of its obligations between states

    through treaties, peremptory norms cannot be

    violated by any state "through international treatiesor local or special customs or even general

    customary rules not endowed with the same

    normative force". Under the Vienna Convention on

    the Law of Treaties, any treaty that conflicts with a

    peremptory norm is void.[4] The treaty allows for the

    emergence of new peremptory norms, but does not

    specify any peremptory norms. It does mention the

    prohibition on the threat of use of force and on the

    use of coercion to conclude an agreement:

    "A treaty is void if, at the time of its

    conclusion, it conflicts with a peremptory

    norm of general international law. For the

    purposes of the present Convention, a

    peremptory norm of general international

    law is 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 by a subsequent norm of general

    international law having the same character

    4. Erga Omnes (in relation to everyone)

    In international law it has been used as a legal term

    describing obligations owed by states towards the

    community of states as a whole. An erga

    omnes obligation exists because of the universal

    and undeniable interest in the perpetuation of

    critical rights (and the prevention of their breach).

    Consequently, any state has the right to complain of

    a breach. Examples of erga omnes norms

    include piracy, genocide, slavery, and racial

    discrimination.

    5. Opinio Juris (Opinion of law)

    In international law, opinio juris is the subjective

    element which is used to judge whether the

    practice of a state is due to a belief that it is legally

    obliged to do a particular act. [1] It can sometimes be

    difficult to establish opinio juris, but where there is

    consistent practice over a length of time, the need

    for opinio juris is lessened. Where there is more

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    2/25

    Unofficial Quick Reference Conspectus on Public International Law

    Earl Louie M. Masacayan, Section 3AA (2010-2011); UST Faculty of Civil Law

    P a g e | 2

    Note: This Document does not ensure correct answers. Use at your own risk.

    sporadic state practice, the presence of opinio

    juris becomes more important. In addition, the

    existence of custom in general need not be

    worldwide, but can also be restrained to the region.

    Customary international law has been deemed a

    source of international law under Article 38(1)(b) ofthe Statute of the International Court of Justice.

    Although the ICJ has frequently referred to opinio

    juris as being an equal footing with state

    practice, the role of the psychological element in

    the creation of customary law is uncertain...

    6. Sources of international law

    Formal e.g. Legislations

    Material e.g. Treaties

    7. Soft law vs. Hard law

    Soft law means commitments made by negotiating

    parties that are not legally binding. Hard law means

    binding laws. To constitute law, a rule, instrument

    or decision must be authoritative and prescriptive.

    In international law, hard law includes self-

    executing treaties or international agreements, as

    well as customary laws. These instruments result in

    legally enforceable commitments for countries(states) and other international subjects.

    8. Private international law vs. Public

    international law

    Public international law, which governs the

    relationship between provinces and international

    entities, either as an individual or as a group. It

    includes the following specific legal field such as

    the treaty law, law of sea, international criminal

    law and the international humanitarian law.

    Private international law, or conflict of laws, which

    addresses the questions of (1) in which legal

    jurisdiction may a case be heard; and (2) the law

    concerning which jurisdiction(s) apply to the issues

    in the case.

    9. Monist vs. Dualist

    Monists assume that the internal and international

    legal systems form a unity. Both national legal rules

    and international rules that a state has accepted,

    for example by way of a treaty, determine whetheractions are legal or illegal. [1] In most monist states,

    a distinction between international law in the form

    of treaties, and other international law, e.g. jus

    cogens is made. International law does not need to

    be translated into national law. The act of ratifying

    the international law immediately incorporates the

    law into national law. International law can be

    directly applied by a national judge, and can be

    directly invoked by citizens, just as if it were

    national law. A judge can declare a national rule

    invalid if it contradicts international rules because,

    in some states, the latter have priority. In other

    states, like in Germany, treaties have the same

    effect as legislation, and by the principle of lex

    posterior, only take precedence over national

    legislation enacted prior to their ratification. In its

    most pure form, monism dictates that national law

    that contradicts international law is null and void,

    even if it predates international law, and even if it is

    the constitution. From a human rights point of view,

    for example, this has some advantages. Suppose a

    country has accepted a human rights treaty -

    the International Covenant on Civil and PoliticalRights for instance - but some of its national laws

    limit the freedom of the press. A citizen of that

    country, who is being prosecuted by his state for

    violating this national law, can invoke the human

    rights treaty in a national courtroom and can ask

    the judge to apply this treaty and to decide that the

    national law is invalid. He or she does not have to

    wait for national law that translates international

    law. His or her government can, after all, be

    negligent or even unwilling to translate. The treaty

    was perhaps only accepted for political reasons, inorder to please donor-countries for example.

    Dualists emphasize the difference between national

    and international law, and require the translation of

    the latter into the former. Without this translation,

    international law does not exist as law.

    International law has to be national law as well, or it

    is no law at all. If a state accepts a treaty but does

  • 8/9/2019 Public International Law Conspectus

    3/25

    Unofficial Quick Reference Conspectus on Public International Law

    Earl Louie M. Masacayan, Section 3AA (2010-2011); UST Faculty of Civil Law

    P a g e | 3

    Note: This Document does not ensure correct answers. Use at your own risk.

    not adapt its national law in order to conform to the

    treaty or does not create a national law explicitly

    incorporating the treaty, then it violates

    international law. But one cannot