History of International Law

History of International Law

• International law developed due to the interactions between sovereign entities in areas like warfare and commerce.
• Early civilizations needed internal rules-based systems to manage scarce resources.
• These rules-based systems were often derived from political structures or religious beliefs.
• As civilizations expanded, they couldn't impose their own internal rules on others with different values.

Early Manifestations of International Law

• Greek city-states formed the Amphictyonic League - a common federal system.
• This was facilitated by a shared language (Greek) and unifying philosophy.
• The Roman Republic/Empire had the concept of jus gentium - a natural law for all people.
• Jus civile was specific to each state/people.
• The Roman Catholic Church established a legal religious order in Europe after the fall of Rome.
• These early examples were extensions of municipal laws, not true “international law.”

Elements of Statehood

• A state needs a permanent population, a defined territory, a government, and the capacity to enter into relations with other states.
• Sovereignty (independence from external control) is crucial.

Theories on State Recognition

• Declaratory Theory: Recognition of a state depends on it possessing the elements of statehood, regardless of recognition by other states.
• Constitutive Theory: Recognition by other states constitutes a state.

The Case of Taiwan

• The One-China Policy is followed by many countries, including the Philippines and the US.
• The People's Republic of China is recognized as the official representative of China in the UN.
• This shifted following Richard Nixon and Henry Kissinger's US pivot to China.
• The US passed the Taiwan Relations Act to maintain unofficial relations with Taiwan but abrogated a Mutual Defense Treaty with Taiwan.

Taiwan Relations Act

• It allows for economic and legal relationships with Taiwan, even if it is not officially recognized as a state.
• It allows for the US to sell arms to Taiwan but is vague on its defense commitments.

Sources of International Law

• Primary sources:
  • Treaties: Bilateral and multilateral treaties create, clarify, or codify obligations between states.
  • Customary Law: Formed by consistent state behavior and the belief that it is obligatory (opinio juris).
  • Generally accepted principles: Derived from natural law found in multiple legal systems.

Protective Principle

• A State can exercise jurisdiction over acts committed abroad that harm its national security, territorial integrity, or other vital interests.

Exemptions From Jurisdiction

• Diplomatic Immunity: Customary international law protects diplomats and their families to ensure their dignity and freedom of movement.
• Immunity of International Organizations: The UN, its organs, and other international bodies have immunity and their officials enjoy protection under the UN Charter.
• Foreign Merchant Vessels:
  • The Philippines follows the English Rule (law of the coastal state applies unless the peace of the port is disrupted).
  • The French Rule (flag State of the ship has jurisdiction) is not followed in the Philippines.
• Foreign Armies: Armies allowed to pass through or be stationed in a territory are exempt from jurisdiction.
• Warships and Other Public Vessels: Non-commercial vessels are exempt, but crewmembers on shore duty may not be immune if they are off-duty or on furlough.