CHAPTER 1: GENERAL PRINCIPLES

NATURE AND SCOPE

Traditional concept: A body of rules and principles of action which are binding upon civilized states in their
relations with one another
o

It is now admitted that there are other entities besides states that are also governed in varying degree by
the law of nations (example: United Nation and the individual himself)

International Law (Schwarzenberger);

Body of legal rules which apply between sovereign states and such other entities as have been granted
international personality
The phrase international law is obviously a misnomer in so far as it suggests that it relates to the intercourse of
nations rather than of states
DIVISIONS OF INTERNATIONAL LAW
1.

Laws of peace
Govern the normal relations of states
When war breaks out between or among some of them, the relations of these states cease to be regulated
under laws of peace
Those states not involved in the war

2.

Laws of war
Duration of the hostilities
When the war ends and peace is restored, the relations of all the members of the family of nation will
come under this

3.

Laws of neutrality
Relations with the belligerents and those involved in war

DISTINCTION WITH MUNICIPAL LAW

Most present day legal analysis regards PIL as pertaining to the municipal or private law of each state rather than
as a part of international law.
One oft cited case: international law covers both public and private international law, the consensus is that only
those precepts applicable to relations of international persons fall within the field of international law
The Monists
They believe in the oneness or unity of all law

Acuna. Ardiente. Gomez. Karunungan. Matobato. Monje. Noval. Palacol. Santiago. Santuyo

The main reason for the essential identity of the two spheres of law is that some of the fundamental
notions of International Law cannot be comprehended without the assumption of a superior legal order
from which the various systems of municipal law are derived by way of delegation
The dualist
There are certain well established differences between international law and municipal law
MUNICIPAL LAW
is issued by a political superior

INTERNATIONAL LAW
simply adopted by states as a common rule of action
among themselves

law consists of enactments from the lawmaking

authority of each state

is derived not from any particular legislation but from

international customs, international conventions and the
general principles of law

Law regulates the relations of individuals among

themselves
Violations of Municipal Law are redressed through
local administrative and judicial processes
Breaches of Municipal Law entail only individual
responsibility

applies to the relations of states and other international

persons
Questions of international law are resolved through
state to state transactions
Responsibility for Infractions of International law is
usually collective in the sense that it attaches directly to
the state and not to its national

It is possible for a principle of municipal law to become part of international law, as when the principle is
embodied in a treaty or conviction
RELATION TO MUNICIPAL LAW
It is a universally accepted rule that, with or without an express declaration to this effect, states admitted to the
family of nations are bound by the rules prescribed by it for the regulation of international intercourse. This is an
inevitable consequence of membership in the international community.
The law of the nations, although not specially adopted by the Constitution or any municipal act, is essentially part
of the law of the land. Its obligation commences and runs with the existence of the nation
Doctrine of incorporation
Affirming their recognition of the principles of international law in their constitution (Philippines)
Article 2, Section 2:
The Philippines renounces war as an instrument of national policy, adopts the generally accepted
principles of international law as part of the laws of the land, and adheres to the policy of peace,
equality, justice. Freedom, cooperation and amity with all nations
Doctrine of transformation

Page

1 | Chupapi Notes

The generally accepted rules of international law are not binding upon the state but must be first be
embodied in legislation enacted by the lawmaking body and so transformed into municipal law. Only
when so transformed will they become binding upon the state as part of its municipal law
It is important to consider the criteria to be applied in resolving conflicts between international law and municipal
law as developed by the practice of states.

There is a natural and universal principle of right and wrong, independent of any mutual intercourse or
compact, which is supposed to be discovered and recognized by every individual through the use of his
reason and his conscience.
The state itself becomes bound by the law of nature. International law as thus viewed is therefore not a
law between but above states

The basic rule would be to attempt to reconcile the apparent contradiction and thereby given effect, if possible, to
both systems of law. It should be presumed that municipal law is always enacted by each state with due regard for
and never in defiance of the generally accepted principles of international law.

2.

There would be no question that national laws must yield to the law of nations if there was a conflict
It is a settled principle of international law that a sovereign cannot be permitted to set up his own municipal law as
a bar to a claim by a foreign sovereign for a wrong done to the latters subject.

A more positive identification with or acknowledgement of the law is necessary to make it binding on
the states it purports to govern, so that any state withholding its consent can disclaim any responsibility
of observance.

Fenwick: International law is binding upon the state as a corporate person, and no provision of the national
constitution or act of the national legislature or decree of the executive or judicial agencies can change the force of
its provisions in so far as the legal relations of the state toward other states are concerned

Consent
Expressed: Case of conventional law
Implied: Case of customary law
Presumed: Case of the general principles of the law

CONSTITUTION V. TREATY
Treaty
-

Rejected in the local forum but is upheld by international tribunals as a demandable obligation of the
signatories

3.

Declaration of the Rights and Duties of States:

Every state has the duty to carry out in good faith its obligations arising from treaties or other sources of
international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform
this duty
Constitution
Contain provisions empowering the judiciary to annul treaties and the legislature to supersede them with
statues. Thereby establishing the primacy of the local law over the international agreement
There can be no doubt as to the meaning of our Constitution when it authorizes the Supreme Court to decide,
among others, all cases involving the constitutionality of any treaty, international, or executive agreement

The voluntary law might be said to blend with the natural law and be indeed the expression of it. Should
there be a conflict between the two, the law of nature was to prevail as being the fundamental law
SANCTION OF INTERNATIONAL LAW
Sanction:
The compulsive force of reciprocal advantage and fear of retaliation
May consist of appeal to public opinion, publication of correspondence, censure by Parliamentary vote,
demand for arbitration with the odium attendant on a refusal to arbitrate, rupture of relations
1.

The belief shared by many states in the inherent reasonableness of international law and in their
common conviction that its observance will redound to the welfare of the whole society of nations
o Age-old desire of men and peoples for international order

2.

They may still be observed by states because of the normal habits of obedience ingrained in the nature of
man as a social being. These habits persuade individuals, and ultimately states, to follow, almost
automatically at times, certain norms of conduct imposed for their observance

Naturalist school of thought

Basis of the law is the law of nature
Law of nature
A higher law or a rule of human conduct independent of positive enactment and even of special
divine revelation, and binding always and everywhere in view of its intrinsic reasonableness

Acuna. Ardiente. Gomez. Karunungan. Matobato. Monje. Noval. Palacol. Santiago. Santuyo

Page

The Eclestics or the Grotians

Both the law of nations and consent of states as the basis of international law
Grotius: The system of international law is based on the dictate of right reason as well as the practice of
states

BASIS OF INTERNATIONAL LAW

1.

The positivists (Richard Zouche)

The binding force of international law is derived from the agreement of sovereign states to be bound by
it.. It is not a law of subordination but of coordination

2 | Chupapi Notes

3.

4.
5.

Respect for world opinion held by most states, or their desire to project and agreeable public image in
order to maintain the goodwill and favourable regard of the rest of the family of nations. This sanction is
the motivation for the propaganda campaigns now being waged by the leading powers in their effort to
win the sympathy and support of the other countries for their respective ideologies
The constant and reasonable fear, present even in the most powerful of states, that violations of
international law might visit upon the culprit the retaliation of other states

1.

Establish peace and order in the community of nations and to prevent the employment of force,
including war, in all international relations

2.

Promote world friendship by levelling the barriers, as of color or creed, that have so far obstructed the
fostering of a closer understanding in the family of notions

The machinery of the United States which, within the sphere of its limited powers, has on many
occasions proved to be an effective deterrent to international disputes caused by disregard of the law of
nations

3.

Endeavours to encourage and ensure greater international cooperation in the solution of a certain
common problems of a political, economic, cultural, or humanitarian character

4.

Aims to provide for the orderly management of the relations of states on the basis of the substantive
rules they have agreed to observe as members of the international community

ENFORCEMENT OF INTERNATIONAL LAW

Austinian Concept: A rule of action can be considered law only if it is prescribed by a political superior with
power to punish violators, the international law cannot be regarded as true law.

DISTINCTION WITH OTHER CONCEPTS

More acceptable view: There are many norms of conduct that society may voluntarily adopt and obey although no
specific penalty is imposed for non observance, international law may be said to possess the qualities of true law
Various methods by which international law may be enforced in the family of nations:

International morality or ethics

Govern the relations of states from the higher standpoint of conscience, morality, justice, and humanity.
Similar to the law of nature

Observance:
Essentially subjective and mainly dependent on the volition of the entity which is supposed to be
governed by the law

International comity
Rules of courtesy observed by states in their mutual relations

Enforcement:
Process by which such observance may be compelled, usually by force or at least the threat of force

International diplomacy
Relates to the objects of national or international policy and the conduct of foreign affairs or
international relations

States are able to enforce international law among each other through international organizations or regional
groups such as the United Nations and the Organization of American States. Grievances of the disagreeing states
may be presented to and discussed in these bodies, which may thereafter adopt such measures as may be necessary
to compel compliance with international obligations or vindicate the wrong committed.

International administrative law

Regulate the relations and activities of national and international agencies with respect to those material
and intellectual interests which have received an authoritative universal recognition

At PRESENT, this function is exercised by the United Nations through the Security Council and the International
Court of Justice.
The quarrelling states may attempt to settle the their differences between themselves, either through methods such
as diplomatic talks. Where these fail, at itself may be waged as a last resort. The laws governing the conduct of
hostilities are enforced mainly through physical force by the belligerents and the neutral states.
Internally, the rules of international law may be treated by the individual states as part of their municipal law. The
LEGISLATURE may implement such rules by prescribing the norms for their observance and providing specific
penalties for their violation, the EXECUTIVE participates by enforcing such laws, the JUDICIARY can play an
important role by applying rules of international law.

CHAPTER 2: SOURCES OF INTERNATIONAL LAW

Primary:
1. Treaties or conventions
2. Customs
3. The general principles of law
Secondary:
1. Decision of courts
2. The writings of publicists
TREATIES

FUNCTIONS OF INTERNATIONAL LAW

Acuna. Ardiente. Gomez. Karunungan. Matobato. Monje. Noval. Palacol. Santiago. Santuyo

Page

3 | Chupapi Notes

Not every treaty can be considered a direct source of international law as it is not always concluded by the great
body of states. Such a treaty, being limited in operation, is a source only of what is called particular international
law.
Even bilateral treaties may become primary sources of international law, if they are of the same nature, contain
practically uniform provisions and are concluded by a substantial number of states.
The general rule is that the treaty, to be considered a direct source of international law, must be concluded by a
sizeable number of states and thus reflect the will or atleast the consensus of the family of nations. The treaty need
not be entered into at the outset by a majority of the states forming the international community. Even if originally
agreed upon only by a few states, the treaty may become binding upon the whole world if it is intended to lay
down rules for observance by all and it is subsequently signed by other states which thereby submit its provisions.
CUSTOM
A practice which has grown up between states and has come to be accepted as binding by the mere fact
of persistent usage over a long period of time
One defect of customary international law is the difficulty of determining when a practice can be considered to
have hardened into custom and thus acquired obligatory character.
Another problem is its inability at times, owing to its slow process of evolution, to adjust to the swiftly moving
developments of the international society which it is supposed to regulate
GENERAL PRINCIPLES OF LAW
Mostly derived from the law of nature and are observed by the majority of states because they are
believed to be good and just
It has become universal in application because of the unilateral decision of considerable number of states to adopt
and observe them in recognition of their intrinsic merit.
It is in the manner that such concepts such as prescription, estoppel, pacta sunt servanda, consent, and res
adjudicate have acquired the status of general principles of law binding as such on the entire international
community.
SECONDARY SOURCES
Article 38: Does not distinguish between those rendered by international tribunals and arbitration bodies and those
promulgated only by the national courts. Both kinds of decisions are acceptable as long as they are a correct
application and interpretation of the law of nations.
The doctrine of stare decisis is not applicable in international law.
The second subsidiary source of international law, the writings of publicists, must also be a fair and unbiased
representation of international law, and by an acknowledged authority in the field. Mere credentials are obviously
not enough as the jurist may have been motivated by national pride or interest.

Acuna. Ardiente. Gomez. Karunungan. Matobato. Monje. Noval. Palacol. Santiago. Santuyo

Page

4 | Chupapi Notes