PIL Transcript
PIL Transcript
PIL Transcript
403 2015-2016
|Selfless Notes|
Alegre.Barcenas.Cabahug.Calumba.Canda.DelaPena.Honoridez.Regalado.Tunacao.Yongco
Lets say bilateral treaty, these states signing now the statute
of the ICJ suits itself to the jurisdiction of the ICJ and of course
such submission to the jurisdiction of the ICJ should not be
treated as a diminution of sovereignty precisely because of
what you learned in your Consti 1: the doctrine of self
auto-limitation.
Not only in the formation are there problems but also in the
enforcement of international law, we dont have a world
court, you have the ICJ but its jurisdiction is largely based on
consent. If ever parties have submitted themselves to its
jurisdiction any judgment can hardly be enforced because we
dont have an international police. We have the security
council yes but there are problems in the institution itself
both political and legal. Veto rule for example is a
problematic institution in the security council.
Even if theres a problem in the formation of International law
and the problem of enforcing international law, we ask the
question is it not the fact that despite these observed
problems states do obey PIL. And so we ask the question:
Distinguish?
Retorsion is a lawful act so if you do that no international
legal consequences. Whats an example of a retorsion?
-cutting off of economic aid.
II
Evolution of International Law
To know how it evolved, we look at how it is defined by the
authorities of the matter and viewed from the auspices of
utilitarianism as we learned last time where international
community had viewed states as the only participants in
international law and therefore at that time of course then
considered the only subjects of PIL. So you add the traditional
definition of Brierly himself when he said that PIL is a body of
rules and principles of actions which are binding upon
civilised states in their relations with one another.
For example, what did the 1935 and 1973 constitutions say
about the role of the government? If you have studied even
our past constitutions? And distinguish it from the way we
perceive the role of the government under the 1987
constitution.
Now dont confuse this with the idea that why refer to a
domestic document in regard to finding a better definition of
PIL when as we have learned last time. PIL is basically a legal
system based on consensus rather than command. So why
look at some sort of document found in the domestic regime
of the US. Well, after the US made such a definition, how did
the rest of the international community react to such
definition?
Bentham
Another important document is Treaty of Westphalia in 1648.
This is important because probably the examiner of PIL is a
consti 1 teacher. And then he will ask what is Westphalian
concept of sovereignty.
What is this contribution of treaty to PIL?
Probably we simply dealt with the concept of consti 1 here
we need to understand the contribution of the treaty of
westphalia.
HISTORY OF PIL
Study the history of the PIL because we should expect for the
bar exams.
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for those states not engaged in war. They are also governed
by another regime which is the regime of the law of
neutrality.
Sources of PIL
IV
Custom
Custom as evidence to general practice accepted as law. One
is objective element or general practice. Second is subjective
element is the opinion juris.
What was the basis of the ICJ in say that it is CIL? If ICJ
considered the norm as CIL and you will be ask whats
the basis in saying that it is CIL?
Automatic na class, you prove the elements.
advocates
CIL. There are principles that had been carried over, practice
before and now found their way in the provisions of the
UNCLOS.
Lets talk about the asylum case.
Whats the
relevance of this case?
For the CIL to apply it must be in accordance with the
concept and uniform usage practice by the state in question
such as the Colombia and Peru in this case. In this case Dela
torre revolted against his government and was granted
asylum in the embassy in Lima. Peru refused to give safe
passage to dela torre to go out of the country. Thats why
Colombia brought this matter to the ICJ because Colombia
contended that it was qualified or competent to grant
political asylum to Delatorre.
What does it tell you by the way when you said CIL
among Latin American Countries?
It is a different kind of CIL.
What do you call it?
It is a regional CIL, so there is such a thing as CIL and
well see the importance of knowing whether the CIL involve
is regional or universal.
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What this case therefore tells us is that you need to first take
note of the fact that if you are dealing with regional CIL it
requires higher threshold. But there is no specific threshold in
International Law but the fact remains that greater uniformity
is required when it comes to regional CIL.
And weve learned that there are ways on how to prove these
two elements and by the objective or material element of
CIL can be deemed from the official acts of the state, in
the form of legislation, in the form of official pronouncements
by the president and other officials, and these of course are
the pronouncement we can see in papers and official records,
administrative issuances, decisions in courts. And when the
state concerned ratifies or enters into a treaty or convention
so thats the way to tell or determine whether a particular
state has practice a particular norm.
VI
Weve learned that accepting CIL by a court confronted with
a question whether there is a law applicable to a particular
controversy would require that CIL should be establish. The
court cannot just accept CIL without proving that the
elements are complied with.
Elements are:
objective or material element of state practice
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2. General Practice
Another way of looking at whether the practice norm is
done with the belief that is it a legally binding norm is when
there is usually a general practice of that, so meaning
while it proves an objective element it can also establish
subjective element if it had not been generally practiced. You
can probably say that what good reason why many states
observe the norm is because probably this is a binding norm
otherwise it would have not been generally or uniformly
practice by the states.
This CSR means that you have EEZ in general and you also
have the CSR in particular. In effect if you talk about EEZ,
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ICJ said that its a wrong argument to say that brief period of
time will bar the formation of CIL. In fact what is important is
the practice whether it is extensive or virtually uniform
practice by the relevant states. But ICJ did not say that it
should be the equidistance principle that should be applied
but only on the issue on whether its correct to argue that
short period of time will bar the formation of a CIL. Is there
such a thing as instant CIL? (pwede bar question)
Another term for that is accelerated CIL . Take note of that at
least you can talk about the North Sea Continental Shelf
Cases.
(Havana
Conventions,
Montevideo
Conventions)
the
provisions in this conventions were not categorical as to
whether its the state granting asylum which has been
granted the competence to characterized the offense.
According to the ICJ, especially that we are dealing here with
regional CIL, it is important for us to note that there is a
higher threshold in establishing a regional CIL. And
because there is a higher threshold, the demand for
uniformity must be greater compared to a general
Custom. Thats a legal significance therefore, why we need
to identify the Custom whether it is regional or universal.
Because the case here allegedly dealt with a regional custom
among Latin American States. And according to that regional
custom, the one granting the asylum should have the
competence to characterize the offense. ICJ observed that
the proof given to establish that, was not sufficient and the
ICJ wanted a greater uniformity than general and bare
averments of some conventions.
So note that the case was decided not yet under the UNCLOS
3. There is now a rule on how to compute all maritime,
territorial sea, EEZ, high seas, continental shelf. The issue is
this, for Norway, so when they computed and delimited, most
of the maritime zones were unilateral delimitation because
there was no convention. Sya ang mag decide where ang iya
extent sa iya maritime zone.
Lotus Case
In this case, a collision took place in the high seas. When it
took place in the high seas no particular jurisdiction will
apply. Because its a common area so no particular
jurisdiction prevails or local law becomes applicable in that
area. So that collision resulting to the death of Turkish sailor,
and the collision was between France and Turkish sailor. The
captain and the officers on board, when they reached Turkey,
they were prosecuted for the death of the Turkish Nationals.
Turkey argued that it has jurisdiction because it treated the
Turkish ship as an extension of its territory and therefore the
Principles involved.
1. General Assembly Resolutions may show the
formation of opinio juris. Even if they are not
legally binding, they have normative value.
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Divided Decision
Since this is just an advisory opinion it is not to dispose an
actual case, the president of the ICJ did not vote first because
they were not to decide they were to make an opinion. It was
enough for ICJ to be divided this way, equally 7-7. This was
therefore, the aspect of the use of nuclear weapon where the
ICJ was divided equally. While the threat or use of nuclear
weapons would generally be contrary to the rules of
humanitarian law, the court cannot conclude definitively,
whether it would be lawful or unlawful in an extreme
circumstance of self defense in which the very
survival of the state is at stake. We cannot make a rule
or pronouncement that it is prohibited or that it is allowed in
case of a state exercising the right of self defense in an
extreme situation where the very survival of the state is at
stake. So until now, the International Community cannot yet
resolve as to whether to prohibit the use of nuclear weapon
in such extreme cases. The UN has called upon the states to
disarm themselves of nuclear weapons but thats a different
story. There is a call for disarmament of nuclear weapons, but
in situation where there is the use of nuclear weapon in order
to defend the state or its territorial integrity, in a situation
where it is used, ICJ has not come up with a definitive ruling
whether the state will be held responsible for using nuclear
weapons. There are so many things to consider. 1. You cannot
just say that mere use is to be prohibited because it is
Clarifications:
French rule and English rule in the PHILIPPINES will not apply
to crimes committed in the high seas.
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VII
Sir: When we are talking about the 3 rd primary source of
Public International Law, recall the General Principles of Law
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Sir: The Court said, since the cause of action was really a
cause of action that pertains to the company or corporation.
It should be the nationality of the corporation itself that
should be controlling. And since Barcelona Traction was
registered in Canada, it should have been Canada which
would espouse the claim or exercise diplomatic protection.
Sir: Yes, estoppel. But in what particular? That one that goes
to court he must come to court with clean hands. We call that
the CLEAN HANDS DOCTRINE.
Soft law are indeed principles of law that are not meant to be
legally binding in the sense that invoking it would
automatically render or rather would charge another state
responsible. However, not also totally irrelevant, because
there is a normative value of a soft law.
Bar Exam Question: What are soft laws and hard laws?
How do you distinguish?
It will also guide our supreme court, many times, the SC had
applied provisions of the UDHR, ICCPR. That is also another
utility of soft laws although they are really legally binding.
They will guide judicial reasoning. How the court reasons in a
particular controversy.
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In fact under article 53 of the VCLT, that is where you will find
the jus cogens norm. It enumerated the grounds that will
invalidate a treaty. One of which is, the violation of
peremptory norm or non derogable norm.
What will appear in your copy, is that your state appears first
in your copy. In that sense we are equal, that is alternat. But
of course that is just for convenience. It does not provide for
a specific rule of conduct actually. We can or cant follow it.
Jus cogens can actually be changed, can be set aside but that
would require another norm of similar character, meaning it
should also be in that kind of norm, similar to a jus cogens
norm.
So, not all, but most laws of peace cannot be applied during
times of war. But if the norm exist in both times then that is a
norm that is never derogable.
One final point, we have been talking about jus cogens, you
have encountered the principle of erga omnes norm.
VIII
Philippine Practice
Almost all principles can become part of the law of the land.
GAPlL through incorporation, non- GAPIL through the
treaties.
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LAW ON TREATIES
First, we need to distinguish terms that have been used
by some interchangeably but should actually be
distinguish.
What is a treaty?
Art. 2, 1 (a) of VCLT:
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in
generic
term
or
international
IX
May the rules found in the VCLT be applied in the ff:
1.)A dispute involving a treaty between State A and
IMF World Bank (International Org.)
WTO, there are parties to the WTO if let say all SEA
members of the WTO will enter into a particular treaty
dealing with a product peculiar only to the South East
Asian Nation, unsa kaha na? banana [.] That
particular treaty may be governed by the relevant
provisions of the WTO itself. So you notice that there
are voting requirements for example for the adoption
of the treaty. That may be governed not by the VCLT
but by the relevant provisions of the organization. A
treaty may be governed by another regime in other
words. Not necessarily by the VCLT.
However, is it binding?
b.) As to obligation
legally
binding
Ratification
What is the purpose of ratification? What do you mean
by a treaty is ratified?
A.) As to meaning/definition
a signatory to a treaty is one who has or which
has of course signed that treaty other term in
Continental-European language is signalled .
a PARTY is one who is already bound by
the treaty while a signatory is simply one
which has signed the treaty but not yet
bound by the substantive provisions of the
treaty.
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Formation of treaties
1.)Proposal to draft a treaty
can be done
Governmental
Organizations.
SUPPLEMENTARY
MEANS
OF
53
Ans: okay sir. They signed to the treaty but with regards to a
party sir, I think it refers to being bound to the terms and
conditions of the treaty sir because as what I have
remembered not so long ago sir, you could be a signatory but
not a party since there are instances where it should be
ratified first by a for example like what we discussed a year
ago sir that there is a back door and front door.
Sir: naa gud ratification? So what you are saying is: If a treaty
for example had been signed by Ambassador X, an
ambassador of the Philippines for example last July 2015. The
Philippines, being a signatory to that convention in July 2015
but the Philippines is not yet a party until and unless such
signature made by the representative, ambassador X had
been ratified by the president and concurred by the senate.
Is that you point.
X
You know why is it important
signatory from a party?
to
distinguish
several
ways:
XI
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59
to see the text of the treaty. Does it say that it will hve to
enter into force at a particular day or one year after the 60th
party will ratify? We will never know because it is provided in
the text. That is why it is important to limit sometimes the
authority of certain representatives.
XII
Importance of the adoption of the text of the treaty
International Ratification
Would come into force when there is already exchange
of the instrument of ratification.
In a multi lateral treaties very difficult to exchange
instruments of ratification so what a treaty will usually
provide is that ratification takes place when the
instruments of ratification are deposited with a
designated depositary normally the Secretary of the
United Nations.
States and when will the treaty enter into force insofar
as third states becoming parties via accession. That
would again depend on what is provided in the treaty
kay otherwise as soon as it has expressed its consent
to be bound.
Reservation
A unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports
to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that
State.
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OR
We can say that this mandate in the treaty will
not be applied in our particular region ha
because in this particular region naay
indigenous people diha, we recognize their
rights. So in our country naa miy lugar nga
recognized ilang own practices so kani nga
provision applicable ra ni sa mao na nga mga
territories wa ni labot nga particular area kay
lain ni sila ug culture. We cannot also compel
them to follow the mandate of the convention
kay mu contradict sa ilang culture but willing
ang rest mu comply ana. So thats a good tool to
use if you want to still become a party and you
still want that provision to be applicable in a
certain way
Secret Treaties
Secret treaties are treaties that are not registered with
the UN. UN monitors if such treaty is compatible sa
object and purpose of the UN Charter because under
Article 103 if Im not mistaken of the UN Charter all
treaties incompatible with the UN Charter di na siya
enforceable and what will prevail is the mandate of the
UN Charter as you will see later on naa diay treaty
nga preferred over others and thats the UN Charter
XIII
When the treaty already enters into force, then the states
which participated in the formation of the treaty will now be
properly called the parties to it and there will now arise the
obligation to comply with the terms and conditions of the
treaty the substantive content of the treaty. And this
compliance must in fact be in good faith because that is a
mandate of a fundamental principle in international law
called pacta sunt servanda.
So its either that the parties have provided for exit provision
in a treaty, then they may withdraw on the basis of the
provision of the treaty. Otherwise, withdrawal can be done
only where:
If this will be your answer in the bar exam, you will be given
points but this is not accurate. Because this is too simplistic
of an approach to such so very comprehensive question.
Why? Because when it says international law, okay lang kung
treaty obligations. Pero kung moingon ka nga general sya on
which should prevail, ay you will be making a lot of
qualifications and this will of course confuse us.
Interpretation of Treaties
Basic Rules:
1. Text of the treaty (ordinary meaning + context +
object and purpose of the treaty)
2. Intent of the Parties
3. Object and Purpose of the treaty
Means of Interpretation:
a. Preparatory works (travaux prparatoires)
b. Circumstance of conclusion (contemporaneity)
So, the ICJ for example, may be compelled to just adopt one
method of interpretation and prefer over the others. Actually,
the textualist approach had been considered preferred than
the second: the object and purpose of the treaty. Where the
interpretation however will result still to ambiguity or that
interpretation will result to ambiguity. Thats the time the ICJ
may make use of supplementary means of interpretation. We
have the Preparatory works or travaux prparatoires of that
treaty and also the circumstances of the conclusion or the
contemporaneity of its conclusion. That will also help the ICJ
come up with definitive meaning of interpretation. When we
interpret treaties were govern primarily by art 31 thats
customary international law (CIL) and we may make use of
other methods of interpretation only when the ICJ cannot get
1) good faith
2) giving the words of the treaty in context and in the light of
its object and purpose.
Art. 46 (1): A State may not invoke the fact that its
consent to be bound by a treaty has been expressed
in violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its
consent unless that violation was manifest and
concerned a rule of its internal law of fundamental
importance.
XV
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Elements of countermeasure:
1. Proportionality of countermeasure was not met
(80%-90% of water from the Danube river).
2. The countermeasure must be a response to a
particular breach committed by the other party.
Denying the object and purpose of the treaty
but is justified due to a former breach.
Gabcikovo-nagymaros:
Systems of locks flowing to the Danube river.
Hungary and Slovakia (Czechoslovakia). Changes in
administration in both countries; social and
economic. Socialist to capitalist liberal states.
Environmental law developed during that time.
Hungary welcomed liberal thinking, people
questioned the project that there was an allegation
that it would pollute the river. Hungary suspended
the project and later abandoned it in 1989. Which
lead Slovakia to implement Variant C. Variant C
however enabled Slovakia to utilize more than
around 80%-90% of the river. Hungary charged
Namibia Case:
Mandate from the League of Nations which states
that South Africa should administer Namibia and
therefore to promote the welfare and take care of
the people. Namibia was an emerging state; used
to be a colony of Germany. To promote the right of
self-determination of certain peoples in particular
inhabitants of colonized territories. UN issued a
resolution for the decolonization of colonized
territories. Colonizing countries were asked to
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b. Impossibility of performance
c. Fundamental change of circumstances (rebus sic
stantibus)
A:
The circumstance that change must relate to the
fundamental character that essentially was made basis of the
consent that radically transformed the obligations previously
contemplated by the parties. Like in the fisheries jurisdiction
case, the obligation was to submit to the jurisdiction of the
ICJ and despite the change of the fishing techniques in
Iceland, it did not affect the obligation of the parties to
submit to the jurisdiction of the ICJ.
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