Public international law, sometimes called the "law of nations" or simply international law, is composed of the laws, rules, and principles of general application that deal with the conduct of nation states and international organizations among themselves as well as the relationships between nation states and international organizations with persons, whether natural or juridical. It should not be confused with private international law, which is primarily concerned with the resolution of conflict of national laws, determining the law of which country is applicable to specific situations.[1]
Origins and evolution process of international law edit
The history of international law examines the evolution and development of public international law in both state practice and conceptual understanding. Modern international law developed out of Renaissance Europe and is strongly entwined with the development of western political organization at that time. The development of European notions of sovereignty and nation states would necessitate the development of methods for interstate relations and standards of behavior, and these would lay the foundations of what would become international law. While the origins of the modern system of international law can be traced back 400 years, the development of the concepts and practices that would underpin that system can be traced back to ancient historical politics and relationships thousands of years old.[2] Important concepts are derived from the practice between Greek city-states and the Roman law concept of ius gentium, which regulated contacts between Roman citizens and non-Roman people. These principles were not universal however. In East Asia, political theory was based not on the equality of states, but rather the cosmological supremacy of the sovereign, that is the emperor of China.[3]
Traditionally, international law involved state actors and inter-state relations.[4] Individuals, organizations, regional bodies, non-governmental institutions, and the like were left outside the reach of international law.[5] The United Nations was a forum open exclusively to state parties. The International Court of Justice was reserved for state grievances.[6] It was inconceivable that an individual would come before such tribunals, or that international law would govern anything but relations among state parties.[7] Today, the converse is true. International law, in its transformed or globalized version, governs all sorts of relations, including those implicating states, regional bodies, non-governmental organizations, trade organizations, commercial actors, and private individuals. It spreads into legal fields such as environmental law, labor law, trade regulations, antitrust, health, and insurance law. Non-state actors play increasingly important roles in such fields, including regional organizations, specialized bodies such as trade organizations, non-governmental organizations, and private individuals.[8]
Private parties can also rely on international law to obtain certain guarantees, particularly in the field of human rights, and they can sue state parties for violations of such international standards. Thus, it is no longer true that international law represents a body of law that solely governs relations among states; on the contrary, it is a complex web of treaties, regulations, customary norms, and codes of conduct that shapes relationships among state as well as non-state actors along horizontal and vertical axes of power.[9]
Concept of international law edit
International law can be defined as a body of principles, customs, and rules recognized as effectively binding obligations by sovereign states in their mutual relations. What distinguishes law from other types of social ordering is not form, but adherence to specific rules of legality: generality, promulgation, non-retroactivity, clarity, noncontradiction, not asking the impossible, constancy, and congruence between rules and official action.[10] The distinguishing feature of international law that which sets it apart from an institution, practice, or political agreement is its acceptance in principle as binding. Public international law comprises a set of binding rules among states. Increasingly we can find instances in which such rules govern individuals, but only states—or organizations of states in some cases—can enter into international legal agreements, or treaties. This binding state-to-state quality distinguishes international law from the broader concept of international institutions, which can include nonbinding practices and which, many would agree, can also include rules and principles devised by nonstate actors.[11]
International law is found not only in treaties but in the body of custom that has developed through time among states. Customary international law is based on state practice, combined with an understanding that such practice has developed into an obligatory norm. When a stable practice develops among a sufficiently broad number of states, and when a large number of them view the practice as legally binding, it becomes recognized as a binding principle of international law. Ius cogens norms are considered the most fundamental principles of customary international law, from which derogation is not ever allowed. While no single authoritative list of such norms exist, some examples include prohibitions against aggressive war and crimes against humanity. A similar set of basic norms are sometimes termed erga onmes (obligations owed to all). Examples include obligations to refrain from slavery and torture. Legal scholars have also given attention to a growing body of what they refer to as “interstitial law,” that is, the implicit rules operating in and around explicit normative frameworks[12]. While an important source of international law in many areas, customary and interstitial international law have been the subject of relatively little attention in international relations, perhaps because they can be difficult to establish empirically and their causal influence is hard to study rigorously.[13]
Philippine approaches to international law edit
Transformation v. incorporation edit
Under the 1987 Constitution, international law can become part of domestic law either by transformation, where an international law is transformed into a domestic law through a constitutional mechanism such as local legislation wherein treaties become part of law of the land.[15] Pursuant to this, no treaty or international agreement shall be valid unless concurred by at least two-thirds of the Senate of the Philippines; or by incorporation, where international law, by mere constitutional declaration, is deemed to have the force of domestic law. The Philippines whereby adopts generally accepted principles of international law as part of the law of the land by virtue of the incorporation clause of the constitution. An international law forms part of the laws of the land even if they do not derive from treaty obligations.[16] Generally accepted principles of international law refer to norms of general or customary international law which are binding on all states, valid through all kinds of human societies, and basic to legal systems generally.
The rule that a state may not be sued without its consent is one of the generally accepted principles of international law that the Philippines adopted as part of the law of the land.[17] This provision merely reiterates a policy earlier embodied in the 1935 and 1973 Philippine Constitutions. The same also intends to manifest the resolve of the Philippines to abide by the rules of the international community. However, even without such an affirmation, the Philippines would still be bound by the generally accepted principles of international law under the "doctrine of incorporation". Under this doctrine, as accepted by the majority of states, such principles are deemed incorporated in the law of every civilized state as a condition and consequence of its membership in the society of nations. Upon its admission to such society, the state is automatically obligated to comply with these principles in its relations with other states.[18]
Notes edit
- ^ "Public International Law: Introduction to Public International Law research". The University of Melbourne Library Guides.
- ^ Fassbender, B. (2012). The Oxford Handbook of the History of International Law. Oxford: Oxford University Press.
- ^ Gaurier (2014). History of International Law: From Antiquity to the Creation of the UN. Rennes: Presses universitaires de Rennes.
- ^ Berman, P.S. (2005). From International Law to Law and Globalization.
- ^ Carter, B.E. (2007). International Law (5th ed.).
- ^ Supra note 5
- ^ Supra note 4
- ^ Supra note 6
- ^ Grossman, Claudio (2007). The Velasquez Rodriguez Case: The Development of the Inter-American Human Rights System.
- ^ Brunee, J. (2010). Legitimacy and Legality International Law: An Interactional Account. Cambridge University Press.
- ^ Beth, Simmons (2000). "International Law and State Behavior: Commitment and Compliance in International Monetary Affairs". The American Political Science Review. 94: 819–835.
- ^ Lowe, V. (2007). International Law. Oxford, New York: Oxford University Press.
- ^ Goldsmith and Posner (2005). The Limits of International Law. Oxford University Press.
- ^ Poe-Llamanzares v. COMELEC; G.R. No. 221697; March 08, 2016
- ^ Art VII, Section 21, 1987 Philippine Constitution
- ^ Article II, Section 2, 1987 Philippine Constitution
- ^ Supra note 16
- ^ US v. Guinto; G.R. No. 76607; February 26, 1990