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Module 1: Concept and Origin of Public International Law - Coggle Diagram

- - - - Why Do Nations Obey INL (Koh) - Forwards the concept of obedience. Powerful states are generally founded on liberal democratic principles and respect for rule of law. Undermining INL would undermine the principles of the state. In contrast, weaker states, following INL vindicates the state's existence.
    - - Counter-Arguments
        
        Command Theory - Not applicable to INL, as no sovereign to speak of.
        
        Consensual Theory - There are many binding rules which do not derive its authoritativeness from consent.
        
        Natural Law Theory - Much of customary law and what are regarded as generally accepted principles of law are an expression of what traditionally was called natural law.
      - Weaknesses of INL -
        
        There is no legislature to keep the law abreast of new needs in the international society;
        
        No executive power to enforce the law; and although certain administrative bodies have been created, these are far from being adequate; and
        
        Although there is a machinery for the arbitration of disputes and a standing court of justice, its range of action is limited because resort to them is no compulsory.
        
        Why INL is Law -
        
        It is treated as law;
        
        It meets basic conditions for a law; agreements between states (customary and conventional)
        
        Its rules are generally observed;
        
        A sovereign not required for a law to be a law;
        
        Enforcement not an absolute requirement for a law;
        
        There is actually enforcement of international law; Enforcement can come in many forms, e.g., a state which can be seen as a body of international entitlements, is deprived of said entitlements if it breaks international law.
        
        Disobedience does not negate its existence. Instead, only means that a party does not agree to it.
  - - - C1. Monism/Dualism
        
        C2. Philippine Approach to International Law
        
        Incorporation (CONST. Art. II, Sec. 2) - Adops the monist view. Under the Consti, the PH adopts the generally accepted principles of international law as part of the law of the land.
        
        Transformation (CONST. VII, Sec. 21) - Dualist view. Under the constitution, a treaty or international agreement must be concurred with by the senate
        
        Monism -
        
        Crawford - the idea that national and international law form one single legal order and that INL can be applied directly within the national legal order.
        
        Shaw - Unitary view of law, but INL: superior to or more basic than municipal law.
        
        Dualism -
        
        Crawford - INL and NL distinct and independent from each other. INL as the law between states whereas NL applies within a state with neither legal order having the power to create or alter the rules of the other.
        
        Shaw - Different legal systems such that one cannot purport to have an effect and overrule the other.
    - - B2. Middle Ages/Renaissance -
        
        Middle Ages - Characterized by the organized Church, its authority and the comprehensive structure of power that it commanded.
        
        Renaissance - Marked a return to Hellenic studies/Natural law. The early theorists of international law were deeply involved in natural law and incorporated ideas of NL. An example is the merging of Christian and Natural law ideas by St. Thomas Aquinas.
        
        Thomas's theory of political order became highly influential. He sees man as a social being that lives in a community and interacts with its other members. That leads, among other things, to the division of labour.
        Thomas made a distinction between a good man and a good citizen, which was important to the development of libertarian theory. That is, the sphere of individual autonomy was one which the state could not interfere with.[111]
        Thomas thinks that monarchy is the best form of government, because a monarch does not have to form compromises with other persons. Moreover, according to Thomas, oligarchy degenerates more easily into tyranny than monarchy. To prevent a king from becoming a tyrant, his political powers must be curbed. Unless an agreement of all persons involved can be reached, a tyrant must be tolerated, as otherwise the political situation could deteriorate into anarchy, which would be even worse than tyranny. In his political threaty De Regno, Aquinas subordinated the political power of king to the primate of the divine and human law of God the creator. For example, he affirmed:
        According to Thomas, monarchs are God's representatives in their territories, but the church, represented by the popes, is above the kings in matters of doctrine and ethics As a consequence, worldly rulers are obliged to adapt their laws to the Catholic Church's doctrines and determinations.
        
        B3. Modern International Law - Modern INL arose in western Europe in the 16th-17th century between states with a common background in the Christian religion and Greece/Rome
        
        Francisco Vitoria - Spanish philosopher, believed that intenrational law was based on the universal law of nature.
        
        Hugo Grotius - Father of international law. Emphasized that international law should be independent of theology/divine law.
        
        Positivism/Naturalism - Samuel Pufendorf argued that NL was a moralistic system, denied the validity of the rules about custom.
        3a. Positivism - derived from the empirical method adopted by the Renaissance. Concerned with viewing events as they occurred and the discussion of actual problems. Not theory derived from absolute principles.
        
        19th Century - practical,expansionist and positivist.
        
        20th century - European empires led to European ideologies proliferating. Marked by the 1919 peace treaty and the creation of the league of nations.
        
        Postwar - Post world wars, there was a strong desire to avoid war. Thus, the UN was formed.
      - Ties with Natural Law - Jus Naturale or natural law, is a broad concept applicable to the entire world. This originally subsumed Jus Gentium, which was the law of peoples. The latter was later separated from the former and modulated into a law of nations.
        
        Law of Nations - A system of norms; whether derived from universally acceptable natural morality or, attested by the consent of nations.
    - - B5. Modern Treaty Law - Modern treaties are interpreted according tot he 1969 Vienna Convention on the Law of Treaties. This convention is accepted by even nations who were not parties to it. Its most important rule is the rule that a treaty should be interpreted according to the plain meaning of its language, in the context of its purpose, and in good faith. This removes nit-picking and allows for preambles to guide interpretation.
  - - - PIL v. PRIL -
        
        Public International Law (ICJ 38) - To be applied by the court whose function is to decide in accordance with international law such disputes that are submitted to it.
        
        Sources - These sources are exclusive. No other means of creating international law.
        1a. Treaties/International Conventions - Whether general or particular, establishing rules expressly recognized by the contesting states;
        1b. Customary International Law/International Customs - Custom as evidence of a general practice accepted as law
        1c. General Principles of Law - the general principles of law recognized by civilized nations
        1d. Judicial Decisions and Legal Teachings - ICJ 38 Art. 59 provides that judicial decisions and that teachings of the most highly qualified publicists of various nations are subsidiary means for the determination of rules of law.
        
        Subjects
        2a. States
        2b. International Organizations
        2c. Individuals
        
        Private International Law
        
        Sources -
        1a. Domestic laws for legal issues containing foreign elements
        
        Subjects
        2a. Private Persons (individuals)
        
        Decisions ex aequio et bono - Sources of international law sahll not prejudice the power of the court to decide cases ex aequo et bono (according to equity/conscience) if the parties agree thereto.
        
        Types of Rules
        
        Primary Rules - A body of principles and rules, laying down the rights and obligations of the subjects of that system. These exist because of law/jurisprudence.
        
        Secondary Rules - Rules which can be applied to determine what the primary rules are, how they are created and how they can be changed. In INL secondary rules are less defined because of a lack of universal jurisdiction and legislative. Disputable if such rules exist at all.
        
        Tertiary Rules - These determine the identification of the secondary rules, provides the rationale for why laws should be followed in the first place.
        
        Classification of Sources
        
        Formal - that form which a rule of law derives its force and validity. It is the reason why a rule is binding.
        
        Material - Those from which is derived the matter of the law i.e., its substance and serves to supplement the formal source which gives the law its force and nature. It refers tot he place in which the terms of the rules are set e.g., treaties,r esolutions, proposals, etc.
        
        For example, a custom is a formal source, its substance is in turn indicated by state practice, which is the material source of the custom.
      - Principles of Interpretation -
        
        Lex specialis derogate generali – the special rule overrides the general rule
        
        Lex posterior derogate priori – the later rule overrides the earlier rule.
        
        Jus Cogens - A compelling law, it designates norms form which no derogation is permitted by way of particular agreements.
        
        Application to Treaties
        
        GR - A treaty is lex specialis, thus, prevailing over any inconsistent customary law.
        
        XCPN - If the new customary norm is accepted as jus cogens, any existing treaty in conflict with that norm becomes void. (VCLOT 64_