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Theories
1. Direct Consent: international law is based upon the direct consent of states upon
their individual acceptance of its principles and rules
(Should be state practice)
2. Implied Consent :to account to the acceptance the great bodies of customary law
3.
Natural Law: The law among individuals also extends to countries or to states as well as to
nations not only to private individuals
International law: rules and principles which are recognize and legally binding and governs
the relations of states and other entities with one another ,as to international organizations
between international organizations of the states and the people(do not confine yourself with
the relation between states alone, because International law may involve international
organizations as to relate to states , international organization to people.
International Laws were not codified, it was considered as state practice by principle, and it
became part of international Law
Functions of International Law
Defines the existence of the state
It provides for the framework of diplomatic relations
Govern international agreements
Set forth the rules on trades and commerce
It governs individual human rights
Regulates protects the global environment
purpose: help eliminate unlawful force in the solution of human conflict certain laws treaties,
doctrines that is acceptable in international law, we are able to prevent war.
State cannot be sued if it wont submit to the Jurisdiction of the Court=dapat nay consent
Principles/ Foundations:
1. Comity: founded on the fact that there should be rules on politeness, convenience and
goodwill observed by the states in the mutual intercourse without being legally bound by
them.
2. Reciprocity: states that favors benefits, and penalties that granted by the one state to
the citizens or legal entities of another, should be returned in the same kind
3. Independence: right of the state to exist and exercise sovereignty
4. Equality of States: state right is inherent in the concept of the state as a subject of
international law and is given general recognition by long standing practice.
4.
Mutuality of Interest: Binding force depends upon the mutuality of interest which
could only be maintained by altering from time to time such rules as it might be no
longer to the interest
Subjective law ang international law, it would alter by amending the previous treaties
in lieu of the betterment of all
Necessity: the fact that nations have common interest, constitute the actual
community of states and at the same time demand a rule of law.
Ex: need to unify and uniform about what the right to life is because if there is no
unification, there will be chaos
Eg: State already a signatory of a treaty (No reservation) Allows the state to take a break
from its obligations to comply with the treaty (temporary)
2.
3.
4.
5.
Conflict between a treaty an the constitution= constitution highest law of the land
Once the war or public emergency ceases, you are bound to comply with the treaty again.
C. Denunciation- The state will totally withdraw from its being a signatory to a treaty
If the treaty is silent (no provision) about denunciation or termination- withdrawal from the
treaty is not allowed, unless establish intention of the parties for withdrawal.
Ex: Guam and the United states. Guam is not really a state but a semi-state because they are
attached to the United States, however they are not allowed to vote but they are called
citizens. They are not allowed to interfere the affairs of the government. But they have a
representation in government. But in choosing the president, they are not allowed to choose
and vote.
And another characteristic of a state for it to be called a state is that you have the capacity to
enter into relations between the states both it is a prerequisite and a consequence of
statehood. And one example is which it is one you can be a member of the united nations or
you have the, just like in a contract, you have a legal capacity to enter into a treaty with
another nation. That is what you call as CAPACITY TO ENTER INTO RELATIONS.
If denunciation is allowed, a party must not give less than 12 months notice for withdrawal.
Rules of customs are created by actual state of practice and must be consistent, general and
uniformly adopted by a state.
General Rule:
** If there is a treaty- treaty will govern
** No treaty- Customs will govern
** One treaty state and one non-treaty state- Customs govern = one state is not bound to
comply with the provision of the treaty so customs is applied.
3. General Principle of Law
- These are once those are recognized among civilized nations.
SECONDARY Source of Intl Law:
4. Judicial Decisions and Scholarly Opinions
Characteristics of a state:
State has a permanent TERRITORY. No minimum requirement as to how the state with
regards to the territorial boundaries for as long as it is geographically defined.
One of the matters that determine a state is the POPULATION. And the population that is
meant there for a state to exist is that it is enough to be able to sustain itself.
Third, is that you should have a GOVERNMENT. Any unrest within the state is not always
determinative of the non existence or the existence of a government but some of the forms of
the government is a central characteristic of an existing state and existing states under
international law can lose their statehood or that can lose of being a state by an agreement
that they will attached to another state.
Entrance into the United Nations however does not necessarily implied recognition by the
other UN states. Recognition has to be by or individually binding by the state itself. The states
generally recognize other states through independent actions of the states. One action or one
determinative factor wherein you can say that a state recognizes you as a state is when the
state they are trying to establish embassies in your territory.
With regards to jurisdiction over person, in order to be able to enforce its laws, it requires
more than just jurisdiction it has to over the territory, it requires jurisdiction over the persons,
meaning over its nationals. Normally the state requires custody over the person involve in
order to, lets say for example, to execute its law. But then again, our laws require in so far as
the citizenship is concerned, we do have the extended arm of the state in order to protect its
citizens and its nationals. If the state has custody of the individual, it can exercise its right to
punish subject to human rights restrictions, because a state when it comes to human rights,
for as long as the person, regardless of nationality, is within your territory then a state has the
duty to enforce compliance of all human right treaties, particularly those that the state has
entered into. Meaning, whatever human rights treaties that the state has entered into, it should
be made applicable not only to its citizens but to any individual located within its territory.
What if the does not have custody? International law has developed a piecemeal approach to
enforcing the state law. How and in what manner, for example: Not within your jurisdiction,
remember we do have conflicts of law, if your law maybe applicable then we can take
cognizance or jurisdiction of this case.
There are 3 duties imposed by or on the states with regards to international human rights
norms, these are called the 3 fold duties of the state:
1.
Duty to respect
2.
3.
In duty to respect requires that the state should refrain from any measure
that will interfere or will impair the enjoyment of the right by that is inherent
upon a person if entails on a negative duty.
Negative duty- it means the right exists and that you compel the
government not to do any act that will violate or impair the
enjoyment of that existing right.
Duty to protect
The states are required to protect every individual within its territory and
make sure that their rights are respected and protected not only by state
but by other persons and other entities as well. Thats why, under the duty
to protect, a state is required to take the necessary step to ensure that
individuals under its jurisdiction are protected and that because of that
should come up with legal remedies in the event that there are persons
and entities found to be violating the rights of other persons, because of
these legal remedies, there has to be a collaborative effort between the
departments of the government to ensure protection of the person in the
enjoyment of his rights. It requires for a responsible party to ensure that
third parties do not deprived the rights of the people
Duty to fulfil
It is the duty on the part of the state to ensure that the rights as
enunciated under human rights instruments even in the universal
declaration of human rights are enjoyed by the people.
STATE- group of people capable of procreation occupying a fix portion of a territory. They
have a government
Attributes of a state:
1.
2.
3.
4.
People
Territory
Government
Sovereignty or Independence
Right to exist
Right to be independent
Right to Equality
Right to have a property and jurisdiction
Right of diplomatic intercourse (right to be represent itself in the international
community)
Lose a territory:
1.
2.
3.
4.
5.
6.
Human Right- rights which are inherent in every person without which you cannot live as
human being. These human rights, if and when enjoyed by a person, allows him to fully
develop and use the human quantities, intelligence, talents and to satisfy his spiritual and
others which are essential of being a human. Allow a person to live with dignity, and because
of that, it is an entitlement that every person is entitled to the enjoyment of his rights and that it
can be demandable from the state.
2.
3.
NEGATIVE CLAIM- youre exist. You are entitled to the enjoyment of that right and
because you are entitled to that enjoyment of that right, it is incumbent upon the
state to ensure that they do not do anything to violate that right.
Example: right to an adequate standard of living. (mao nay mga housing projects kay
mao na ang isa sa mga kailangan sa mga taw and kailangan na ihatag sa state.)
But there are times that a right can be a positive and a negative claim at the same time.
One of the basic purposes why the UNITED NATION was created was because of HUMAN
RIGHTS.
Preamble: to save succeeding generation from the scourge of war which is twice of our life
time has brought sorrow to mankind. They reaffirm the faith and the fundamental human
rights..
That is why the united nation and the charter of the united nation be a binding source in order
for us to be able to demand from the state its three fold duties: Duty to respect, protect and
fulfill.
Art 1 of the Charter of the United Nations specifically states that:
1.
To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and for
the suppression of acts of aggression or other breaches of the peace, and to bring
about by peaceful means, and in conformity with the principles of justice and
4.
At which part of the charter that we can say that it is binding upon the state to respect human
right and to source the charter based mechanism, in order to enforce compliance from the
state? Art 55 and 56 of the United Nations Charter.
Art 55: the United Nations shall promote universal respect and observance of human rights
and fundamental freedom for all without the distinction of the race, sex, language or religion.
Art 56: all members of the united nation will pledge themselves to take joint and separate
action in cooperation with the organization in order to achieve the purpose of article 55.
(This is all about the charter based mechanism.)
1946- The UN establishes a Commission on Human Rights.
One of the primary tasks of the commission is to draft an instrument that would clearly define
what the basic and fundamental rights of a man are.
1948- Through a general assembly resolution, an instrument was adopted by the member
nations of the United States and that instrument/ document is what we call now as the
UNIVERSAL DECLARATION OF HUMAN RIGHTS.
Argument: will a universal declaration of human rights be binding among states when it is not
a treaty? Universal Declaration of Human Rights is a SOFT LAW.
Soft law- it can be legally binding source from which specific law and treaties will be passed
and be legally binding. And plus the fact that it can be given rise to become a generally
adopted principle of international law because it becomes state practice.
The essence of UDHR is it became the basis in order to allow the states to establish human
dignity as the source and classification of human rights and it serves to determine the content
of human rights from that passage of the universal declaration of human rights, is franks forth
many specific human rights duties.
7 major human rights instruments arising from the passage of UDHR:
1. ICESCR- international convention on economic, social and cultural rights
Main feature: applies everyone within the jurisdiction of the states. Basic rights of a
person
Supervisory body: 18 independent to serve a term of 4 years
Supervisory mechanism: reporting mechanism- submits reports every 5 years
2. ICCPR- international convention on civil and political rights
Main feature:
Supervisory body:
Supervisory mechanism: reporting, inter-state complaint and individual complaint
mechanism
(Case of paco laranaga)
3.
Main feature: best interest of the child, protection of the childs right to life, to a name, to
a nationality
Supervisory body: 18 independent to serve a term of 4 years
Supervisory mechanism: reporting mechanism
7. MWC- migrant worker convention
Main feature: prevent and eliminate exploitations of migrant workers
Supervisory body: 10 independent to serve a term of 4 years
Supervisory mechanism: reporting, inter-state and individual mechanism
*** Optional protocol- should be a signatory of any of the major instrument before be able to
sign in a protocol.
4 types of mechanism under the treaty-based:
1. Reporting mechanism
2. Individual complaint3. Inter-state complaint- a state/individual whose rights are discriminated upon can file
or sue against another state
4. Inquiry procedure
United Nations Charter was signed on 1945 with 50 signatory countries. And later on was
composed of 51 member states. Came into existence on October 1945 after the charter has
been ratified by china, france, (di nako masabtan ang gisulti ni atty, sorry), united states,
united kingdom, together with the majority signatory states.
United Nations headquarter is found in New York. United States is by far the biggest
contributor with regards to UN budget.
In order to maintain the membership in UN, you just dont sign, there are also dues that you
have to pay or contribute to the Un in order to maintain the operation of UN.
Objectives: you will find it in the preamble of the charter
Preamble:
to save succeeding generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in
the equal rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from treaties
and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom,
Principles of United Nations:
1.
2.
EQUALITY- the moment you become a member of UN, all member states shall
enjoy sovereign equality
Demand: Follow and obey the charter
UN shall not interfere into the domestic affairs of any country
2.
3.
4.
5.
6.