PIL NOTES (BERNAS)

ZAZZA SIMBULAN || 2D (SY 2014-2015)

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INTERNATIONAL LAW
TRADITIONAL:
It is a body of rules and principles of action which are binding upon
civilized states in their relations to one another.
NOW THAT THEY ARE JOINED BY INTERNATIONAL ORGANIZATIONS AND EVEN BY
INDIVIDUALS:
The law that deals with the conduct of the states and of international
organizations and with their relations inter se, as well as with some of their
relations with persons, whether natural or juridical. (Restatement (Third) of
Foreign Relations Law of the United States)
SCOPE OF INTERNATIONAL LAW
affected by various factors:
o
rapid changes in technology
o
the multiplication of the number of states with differing backgrounds and
achieving loose forms of cooperation
o fear of war
o
rising demands for social reform
-

topics
o
o
o
o
o
o

covered by IL today:
regulation of space expeditions
division of ocean floor
protection of human rights
management of international financial system
regulation of environment
preservation of peace

IS INTERNATIONAL LAW A LAW?

-there can be no law binding sovereign states
-no international legislative, executive bodies
-no one central authority that can make judgments binding on states (ICJ- only when
states give their consent)
-the allegiance to ones sovereign state can be very strong to the point of defying reason
-When the chips are down, national policy or interest is often preferred over international
law.
-enforcement of international law is A REAL PROBLEM
-no procedure in the identification of violations
-INTERNATIONAL LAW IS NOT A LAW BECAUSE IT IS COMMONLY DISREGARDED.
BUT THE REALITY IS
-there is SOCIAL INTERDEPENDENCE and PREDOMINANCE OF GENERAL INTEREST
-States are bound by rules not promulgated by themselves
-HENKIN: It is probable the case that almost all nations observe almost all principles of
IL and almost all of their obligations almost all of the time.
-BRIERLY: The ultimate explanation of the binding force of all law is that man, whether
he is a single individual or whether he is associated with other men in a state, is
constrained, in so far as he is a reasonable being, to believe that order and not chaos is
the governing principle of the world in which he lives.
-In the ultimate analysis: Although the final enforces is power, fundamentally, there is a
general respect for law because of the consequences of defiance either to oneself or the
larger society.
THEORIES
1) COMMAND THEORY. John Austin. Law consists of commands originating from a
sovereign body and backed up by the threats of sanctions if disobeyed.
2) CONSENSUAL THEORY. IL derives its binding force from the consent of the
states. (Treaties and Customs)

PIL NOTES (BERNAS)

ZAZZA SIMBULAN || 2D (SY 2014-2015)
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3) NATURAL LAW THEORY. It posits that law is derived by reason from the nature
of man. IL as an application of natural reason to the nature of the state-person.
Although there is little support to this now, much of customary law and generally
accepted principles are expression of natural law.
4) DISSENTERS. No objective basis for IL. Combination of politics, morality, self
interest hidden under the legal language.
ULTIMATE ANALYSIS: PRAGMATIC. Reasonable and logical way and not based
on ideas and theories. There is general respect for the law and concern about the
consequences of defiance.
*IL is law because it is seen as such by the subjects of IL.
PUBLIC INTERNATIONAL LAW (international law). Governs the relationships between
and among states and also their relations with international organizations and individual
persons
PRIVATE INTERNATIONAL LAW (conflict of laws). Domestic law which deals with
cases where foreign law intrudes in the domestic sphere where there are questions of the
applicability of foreign law or the role of foreign courts.
BRIEF HISTORICAL DEVELOPMENT OF IL.
I.

II.

ANCIENT LAW
Ancient Romans. Treaties between Jews and Romans, Syrians and Spartans.
Jus Gentium. Law common to all men.
Modern IL began with the birth od nation states in the Medieval Age.