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What are the sources of International Law? ----- formal and material sources
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. 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. - Article 38(1), Statute of The International Court Of Justice
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; -Article 2 1(a), Vienna Convention on the Law of Treaties
What is custom?
Custom or customary international law means a general and consistent practice of states followed by them from a sense of legal obligation (Restatement). It basically consists of 2 elements, namely, state practice- which consists of what states say and do, with an appreciation of the duration, consistency and generality of said conducts; and opinio juris- the belief that a certain form of behaviour is legally obligatory, and not just something done out of courtesy, fairness, morality, comity, or humanitarian considerations.
States
According to Article 1 of the Montevideo Convention, a state is one with the following qualifications: (1) permanent population; (2) defined territory; (3) government; (4) capacity to enter into relations. Based on this definition, Philippine writers then define a state in this wise: it is a community of persons more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing an organized government to which a great body of inhabitents render habitual obedience. Two theories, however, govern the recognition of states, namely: (1) constitutive- wherein recognition of the international community commences the existence of the state; and (2) declaratory - wherein compliance with the requisites of statehood make a state as such. xxx
International Organizations
International organizations are entities whose existence is owed to a treaty between two or more sovereign states. They have a functional personality which is limited to what is necessary to carry out their functions as found in the instruments of the organization. It is also pertinent to their function that they have international personality and that they are accorded certain rights, privileges, and immunities. The ASEAN and the UN are examples of international organizations.
Insurgents
To a limited extent, insurgent groups are likewise accorded international personality in order to extend better protection to victims of non-international armed conflicts. Said insurgents are granted standing provided that they meet the provided criteria under international agreements such as Protocol II. Under Protocol II, armed dissidents under a responsible command and who exercise control over a part of territory, satisfy the material field of application of the protocol and therefore recognized as having belligerent status against the de jure government and having treaty-making capacity. They are therefore bound to provisions under Protocol II upholding human rights of persons not taking part of the hostilities and the intervention of humanitarian bodies such as the ICRC. Other states are likewise required to maintain neutrality as to them and.
Individuals
Individuals are usually the beneficiaries of international law. However, there are certain instances wherein they are personally bound to uphold certain obligations under international law, albeit in a limited capacity. Laws proscribing crimes against humanity, genocide, aggression, and terrorism, for example, directly subject erring individuals to sanctions. Some treaties have also provided for the right of individuals to petition international bodies in instances wherein a contracting state has allegedly violated some of their human rights.
Corporations
Corporations are likewise granted legal standing in international law in instances wherein they are parties to internationalized contracts.
Incomplete Subjects
Protectorates are dependent states which have control over their internal affairs but whose external affairs are controlled by another state. A federal state, on the other hand, is a union of formerly autonomous entities, with the central organ predominantly having the personality in international law. Lastly, mandated and trust territories are those placed by the League of Nations under one or other of the victorious allies of WWI.
Territory
An element of a state; means an area over which a state has effective control. Although the boundaries may be uncertain, there should be a definitive core over which sovereignty is exercised. It includes, land, maritime areas, airspace and outer space.
Prescription
This refers to the open, continuous, exclusive, notorious possession and occupation of a certain part of territory for a considerable length of time. Like discovery and occupation, this mode requires effective control, however, the required length of such control exceeds that of the former mode and the object of prescription is not terra nullius.
Cession
Cession is acquisition of territory through a treaty.
Conquest
Conquest is no longer recognized as a valid form of acquisition of territory (proscribed by the 1970 Declaration of Principles of International law Concerning Friendly Relations and Cooperation among States. It refers to the taking of possession of a territory through armed force. It was necessary that the war had ended wither by treaty or by indication that all resistance had been abandoned. Also, the conqueror must have had the intention of acquiring the territory and not just occupying it temporarily.
Contiguity
Islands situated outside territorial waters belong to a state due to the fact that its territory forms the terra firma (nearest continent or island of considerable size). natural correlation with the main island.
Intertemporal Law
Rules on territorial acquisition effective at the time of acquisition should be applied.
Right to Self-determination
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Airspace
Each state has exclusive jurisdiction over the air space above its territory. Consent for transit must be obtained from the subjacent nation. Present regime on air navigati
Outer Space
Jurisdiction
Jurisdiction is the power of the state to regulate or otherwise impact upon people, property, and circmstances and reflects basic princriples of state sovereignty, equality of states and non-interference in domestic affairs. it may be achieved by means of legislative, executive or judicial action. Jurisdiction may be based on the following recognized grounds: 1. 2. 3. 4. 5. territoriality principle nationality principle protective principle universality principle passive personality principle
Territoriality Principle
A state has absolute (although not necessarily exclusive) power to prescribe, adjudicate amd enforce rules for conduct that occurs within its territory. An aspect of this principle is the effects doctrine wherein a state also has jurisdiction over acts occurring outside its territory but having effects within it. (subjective and objective) Revised penal code article which says that.... jurisdiction over foreign vessels in Philippine territory (Phils adhere to English Rule- territory where committed)
Nationality Principle
The nationality principle, on the other hand, states that every nation has the jurisdiction over its nationals even when those nationals are outside the state (see civil code provision, rules of court). Jurisdiction is based on the nationality of the offender. However, for a state to claim a person as its national, the state must have reasonable connection or an "effective link" with that person. the consent of the individual, adherence to jus sanguinis or jus soli, and compliance with naturalization laws, are not enough for one to be recognized by other states as a national to which he claims to belong. As in the Nottebohm case, t is the bond of nationality between the state and the individual which alone confers upon the State the right of diplomatic protection. Nationality is the legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.
Protective Principle
A state may exercise its jurisdiction over conduct outside its territory that threatens its security, as long as that conduct is generally recognized as criminal by the states in the international community. This principle basically related to the conduct that the international community finds violative and is based on whether national interest is injured.
Universality Principle
The universality principle recognizes that certain activities, universally dangerous to states and their subjects, require authority in all community members to punish such acts wherever they may occur, even absent a link between the state and the parties or the acts in question. Jurisdiction is conferred in any forum that obtains physical custody of the perpetrator of certain offenses particularly heinous and harmful to humanity.
Conflicts of jurisdiction
US courts have developed the following modes to resolve conflicts of jurisdiction: 1. The Balancing Test In Timberlane Lumber Co. v. Bank of America, the issue was whether to assume jurisdiction in a case involving acts emanating from Honduras. The court employed a tripartite analysis as follows:
a. Was there an actual or intended effect on American commerce? b. Is the effect sufficiently large to present a cognizable injury to the plaintiffs? c. Are the interests of, and link to, the US including effects on American foreign commerce sufficiently strong vis--vis those of other nations, to justify an assertion of extraordinary authority? If the answer to all three questions is YES, then the court will assume jurisdiction 1. International Comity Even when a state has basis for exercising jurisdiction, it will refrain from doing so it its exercise will be unreasonable. Unreasonableness is determined by evaluating various factors, such as: a. the link of the activity to the territory of the regulating state; b. the connection between the regulating state and the person principally responsible for the activity to be regulated (ex: nationality, residence, economic activity); c. the character of the activity to be regulated; d. the existence of justified expectations that might be protected or hurt by the regulation; and e. the likelihood of conflict with regulation by another state. 1. Forum non conveniens If in the circumstances of the case, it be discovered that there is a real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus or locus solutionis, then the doctrine of forum non conveniens is properly applied. The application of the doctrine is discretionary with the court. The court needs to weigh the private interest and the public interest factors. a. The private interest factors are: i. access to sources of proof ii. availability of compulsory process for unwilling witnesses iii. other personal problems which make trial easy, expeditious, and inexpensive. b. The public interest factors are: i. congestion ii. desire to settle local controversies at home iii. having the case tried in a forum at home with the applicable law.
EXTRADITION
Extradition is the surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted of a crime. It is a process that is governed by treaty. The legal right to demand extradition and the duty to surrender a fugitive exist only when created by treaty. The treaty may cover specific crimes only or all offenses considered criminal by both states. The following principles govern extradition: 1. No state is obliged to extradite unless there is a treaty; 2. Differences in legal system can be an obstacle to interpretation of what the crime is; and 3. Religious and political offenses are not extraditable. The procedure for extradition is normally through diplomatic channels.