PUBLIC INTERNATIONAL LAW: INTERNATIONAL AND NATIONAL LAW
INTERNATIONAL LAW v.
NATIONAL (MUNICIPAL) LAW
INTERNATIONAL LAW
DOMESTIC LAW
SCOPE
The conduct of States and international organizations, their relations with each other and, in certain circumstances, their relations with persons, natural or juridical
[ALI Third Restatement]
SCOPE
Applies to a single country or nation, within a determined territory and its inhabitants
HOW MADE: CONSENT BY
COMMON RULE OF ACTION
Through consent, adopted by States as a common rule of action
RELATIONS REGULATED
Regulates relations of States and
other international persons
SOURCES:
CONV, CUST, GP
Derived principally from treaties, international custom and general principles of law
[Art. 38(1), ICJ Statute]
SETTLEMENT OF DISPUTES:
STATE-TO-STATE TRANSACTIONS
By means of State-to-State transactions
RESPONSIBILITY FOR WRONGFUL ACTS:
COLLECTIVE
Collective responsibility because it attaches directly to the State and not to its nationals
HOW MADE
Issued by a political superior for observance
RELATIONS REGULATED
Regulates relations of individuals among themselves or with their own States
SOURCES:
ENACTMENTS
Consists mainly of enactments from the lawmaking authority of each State
SETTLEMENT OF DISPUTES:
LOCAL PROCESS
By means of local administrative and judicial processes
RESPONSIBILITY FOR WRONGFUL ACTS:
INDIVIDUAL
Generally entails individual responsibility in case of breach
RELATIONSHIP
THEORIES
MONIST VIEW
International and municipal legal systems are fundamentally part of one legal order.
This view considers international law to be superior, with municipal law being a mere subset of international law.
MONIST-NATURALIST VIEW
Public international law is superior to municipal law, and both systems are but a part of a higher system of natural law.
DUALIST VIEW
International law and municipal law are separate systems. Only those issues affecting international relations are within the scope of international law.
Before an international norm can have an effect within a municipal legal system, that norm must be transformed, or adopted into the municipal system through a positive act by a state organ.
COORDINATIONIST VIEW
International law and municipal law operate in different spheres. Hence, the laws themselves do not conflict.
However, there may be a conflict in obligations imposed by either system.
In such a case, the result is not the invalidation of national law, but responsibility under international law on the part of that State.
Customary international law and general principles of international law, however, need not be transformed or adopted.
ROLE OF INTERNATIONAL LAW WITHIN THE NATIONAL LEGAL ORDER
Norms or principles of international law may be incorporated or transformed into national law and applied or enforced within the territorial jurisdiction of a state as part of “the law of the land” [MAGALLONA].
International norms are thus applicable within municipal systems even without some positive act of the state.
DOCTRINE OF INCORPORATION:
PH ADOPTS "GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW" UNDER SEC. 2 OF ART. II OF CONSTI
The Philippines adopts the “generally accepted principles of international law” (customary international law) as part of the law of the land [Sec. 2, Art. II, Const.].
They are deemed as national law whether or not they are enacted as statutory or legislative rules [MAGALLONA].
DOCTRINE OF TRANSFORMATION:
TREATIES/INTERNATIONAL AGREEMENTS ARE VALID & EFFECTIVE UPON CONCURRENCE BY 2/3 OF SENATE
Treaties or international agreements shall become valid and effective upon concurrence by at least two-thirds of all the Members of the Senate [Sec. 21, Art. VII, Const].
These rules of international law are not part of municipal law unless they are transformed via legislation [MAGALLONA].
ROLE OF NATIONAL LAW IN INTERNATIONAL LEGAL REGULATION
GENERAL RULE: STATES CANNOT INVOKE OWN NATIONAL LAW TO EXCUSE ITSELF FROM BREACHES OF DUTY UNDER INTERNATIONAL LAW
A State cannot invoke its own national law to resist an international claim or excuse itself from breach of duty under international law.
[Art. 6, VCLT; Polish Nationals in Danzig Case (PCIJ, 1932); Art. 32, Articles on State Responsibility (hereinafter “ASR”)].
EXCEPTION:
A State may invoke the fact that
CONSENT WAS AGAINST INTERNAL LAW
its consent to be bound by a treaty has been expressed in violation of a provision of its internal law
A. INTERNAL LAW CONCERNS COMPETENCE TO CONCLUDE TREATIES, INVALIDATING CONSENT
regarding competence to conclude treaties as invalidating its consent
MANIFEST VIOLATION
if that violation was manifest and
A. CONCERNING A RULE OF INTERNAL LAW OF FUNDAMENTAL IMPORTANCE
concerned a rule of its internal law of fundamental importance [Art. 46, VCLT].
1st: International Law
2nd: Municipal Law
1st: Natural Law
2nd: International Law
3: Municipal Law
Conventional International Law must be transformed/adopted by a positive act by a state organ.
Customary International Law need not be transformed/adopted.
No conflict between IL and NL; operate in different spheres.
In case of conflict, national law is not invalidated but gives rise to responsibility of State under international law.
(Gives rise to responsibility how?)
But yes military officials, usually significant/high-ranking ones (big fish), are also held liable, as before the ICC