UNIT III oe LEGAL BASIS OF INTERNATIONAL ° RELATIONS Lesson 7 General Principles of International Law LESSON OBJECTIVES After this lesson, you should be able to: 4, - understand the basic principles of international law; 2, _ determine international customs and obligations; and “3. understand the full concept of treaties. finition of Terms International law - laws that regulate relations of states and international persons National law - laws that regulate individuals among themselves or within the state Treaty - an international agreement conducted between states, in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, whatever its particular designation (Art. 2 (1) (a), Vienna Convention on Law of Treaties) : International Law and National Law International law regulates relations of states and international persons. It is derived from treaties, international customs, and general principles of law. If Conflict arises, the same is resolved through state to state transactions. 59On the other hand, national law regulates relations of individuals amon themselves or within the state. It consists of statutory enactments, eccraa orders, and judicial pronouncements. If there is conflict, the same is redresseg through local, administrative, and judicial processes. How does international law become a part of the law of the state? There are two doctrines of adoption: doctrine of incorporation and doctrine of transformation. The doctrine of incorporation is mainly based under Section 2, Art. Il of the 1987 Constitution which states that: “x xx the Philippines adopts the generally accepted principles of International Law as part of the law of the land.” Thus, the generally accepted principles of international law are considered as part of a state’s national laws by reason of its membership in the family of nations, The doctrine of transformation requires the enactment by the legislative body of such international law principles as are sought to be part of municipal law (Coquia & Defensor-Santiago, 2005). This doctrine must be related to the power of the President to enter into treaties wherein rule and principles embodied in said treaties would be transformed into Philippine law and would become valid and effective upon the concurrence of two-thirds (2/3) of all the members of the Senate (Sec. 21, Art. Vil, 1987 Constitution). —,| | | CERIO International Conventions and International Customs International conventions are international agreements concluded between States, in written form, and governed by International Law, embodied either in a single instrument or in two or more related instruments and whatever its particular designation (Art. 2 (1) (2), Vienna Convention on Law of Treaties). Examples of bilateral treaties entered into by the Philippines are the Mutual Defense Treaty with USA, signed on 30 August 1959; Visiting Forces Agreement with USA, signed on 10 February 1998; and RP-US Extradition Treaty with USA, signed on 13 November 1995. : At times, the Philippines also enter into multilateral treaties or conventions with two or more states. An example of which is the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Other examples are the International Convention on Civil and Political Rights, Rome Statute of the International Criminal Court, and Convention on the Prevention and Punishment of the Crime of Genocide. International customs, also known as customary law, consists of rules of law derived from the consistent conduct of states, acting out of the belief that the law required them to act that way (Aust, 2010). However, for a custom to be deemed as an international custom, these two elements must exist: state practice and opinio juris sive necessitates (“opinion of law or necessity”). State practice states that there must be evidence of substantial uniformity of practice by a substantial number of states (Aust, 2010). In a leading case rendered by the international Court of Justice, the case of North Sea Continental Shelf Cases (Germany v. Denmark, ICj, 1969), what is required is that: “x xxw within the period in question, short though it might be, State practice, including that of States whose interests are specifically affected, should have been both extensive and virtually uniform.” Proof of state practice are as follows: administrative acts, legislation, court decisions, historical records, and international stage activities. Opinio juris sive necessitates states the belief that the given practice is rendered obligatory by the existence of a rule requiring it. Consequently, the states concerned must feel that they are conforming to what amounts to a legal obligation (North Sea Continental Shelf Cases) (Germany v. Denmark, IC}, 1969). Kinds of international customs are: regional custom and special or local——..$§£$£$§{#2§€. qm ————™@—« Regional custom is a practice among states within a particular area of the world which can be sufficiently well-established and accepted as law that is binding among the states of that region but not elsewhere (Epps & Graham, 2011). A special custom, on the other hand, is a long-continued practice between two states, accepted by them as regulating their relations that form the basis of mutual rights and obligations (Right of Passage Case (Portugal v. India), IC}, 1960), Jus Cogens and Obligations Erga Omnes Jus cogens (Compelling Law) occupy another category of international customs as these refer to norms that command peremptory authority, superseding conflicting treaties and customs which can neither be derogated nor modified, except by a norm or similar character (Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010). jus cogens enjoy a higher rank in the international hierarchy than treaty law and even ordinary customary rules (Prosecutor v. Furundzia, International Criminal Tribunal for the former Yugoslavia, 1998). Examples of this are norms on torture, racial discrimination, genocide, and piracy. Obligations erga omnes ("towa rds all”) refers to an obligation under general international law that a state owes in any given case to the international community, in view of its common values and its concern for compliance, 5° that a breach of that obligation enables all States to take action; or an obligation under a multilateral treaty that a state party to the treaty owes in any given case to all the other state parties to the same treaty, in view of their common values and concern for compliance, so that a breach of that obligation enables to all these states to take action (Vinuya v. Executive Secretary, G.R. No. 162230, April 28, 2010). Examples of this are prohibitions of acts of aggression, on genocide, andor the protection of basic human rights.Treaties A treaty is an international agreement conducted between states, in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, whatever its particular designation (Art. 2 (1) (a), Vienna Convention on Law of Treaties). Steps in treaty making involves (1) negotiation; (2) signing of the treaty by the representatives; (3) exchange of ratification instruments; (4) ratification of the treaty by the constitutional organs of the respective states; and (5) registration with and publication by the Secretariat of the United Nations (UN). A state is obliged to refrain from acts which would defeat the object and Purpose of a treaty when it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance of approval, until it shall have made its intention clear not to become a party to the treaty; or it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed (Art. 18, Vienna Convention on Law of Treaties). In connection thereto, the power of the President to ratify a treaty is well-entrenched in the 1987 Constitution. However, no treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all the members of the Senate (Sec. 21, Art. Vil, 1987 Constitution). Unit Ill LEGAL BASIS OF INTERNATIONAL RELATIONS 63,Basic Principles Concerning Treaties + Pacta tertiis nec nocent nec prosunt - “A treaty binds the parties ang * only the parties” “* Pacta sunt servanda - “Agreements must be kept” - Every treaty in force is binding upon the parties to it and must be performed by them in good faith (Art. 26, Vienna Convention on Law of Treaties). * — Rebuc sic stantibus - “Things standing thus” - A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may be invoked as a ground for terminating or withdrawing from the treaty if the existence for those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty and the effect of the change is radically to transform the extent of the obligations still to be performed under the treaty (Par. 1, Art. 62, Vienna Convention on Law of Treaties). CREATE AND COLLABORATE. As a group, perform the following: 1, On the Internet, research the case of The Province of North Cotabato et.al. v. the Government of the Republic of the Philippines Peace Panel on Ancestral Domain, G.R. No. 183591, October 14, 2008. _ 2. Make a summary of the case. 3. Discuss in class the validity of the Memorandum of Agreement on the Ancestral Domain (MOA-AD) between the Republic of the Philippines and the MILF. 4. Also, on the Internet, research on the cases of Simbolon v, Romulo, G.R. No. 175888, February 11, 2009 and Saguisag v. Executive Secretary, G.R. No. 212426, January 12, 2016. . 5. Compare and summarize both cases. 6. Discuss in class the validity of the Visiting Forces Agreement (VFA) and the Enhanced Defense Cooperation Agreement (EDCA) based on the two Cases, Executive Agreement and Concordat An executive agreement is an agreement concluded by the President baseq on authority granted by Congress or based on the inherent authority grantegto him/her by the Constitution. This is distinguished from a treaty as the latter pertains to a covenant concluded by the President with the advice and consent of the Senate. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate (Sec. 21, Article VII, 1987 Constitution). Both treaties and executive agreements have binding effect upon states as long as the negotiating functionaries have remained within their powers (USAFFE Veterans Association Inc. v. Treasurer of the Philippines, G.R. No. L-10500, June 30, 1959). A concordat is a treaty or agreement between the Pope and a state or government that deals with religious matters as well as the recognition and privileges of the Holy See in other states (Sarmiento, 2014). COLLABORATE. As a group, perform the following: Research for an executive agreement entered into by a Philippine president. 2. Analyze the contents of this executive agreement. 3, Research on news excerpts leading to the signing of this executive agreement. Put the news excerpt in the space provided. Explain in class your observations on the possible reasons why the said executive agreement was signed. SUMMARY lawis a law that governs states and theiri international persons. n international covenants but also on international customs. pine law. International It is based not only o By adoption, principles of international law become part of Philip} ational covenants that can be entered into by Philippine the Senate. Its formation entails a ‘auses positive and negative effects Treaties are intern, presidents and subject to ratification by number of steps, and its implementation c on the country.