International Law: Definition, Principles, Sources

International Law Definition

• Public international law consists of legal rules applicable to sovereign states and entities with international recognition.
• It involves a continuous process of authoritative decisions, integrating policy considerations.

Principles of International Law

• Par in parem non habet imperium signifies equality among states, meaning no state has dominion over another.
• International law treats all states equally, regardless of size, population, or economic status.
• Pacta sunt servanda : agreements must be honored in good faith.
• States must comply with pacts, and breaches can lead to hostile relations or UN sanctions.

Sources of International Law

• Sources derive from the Statute of the International Court of Justice (ICJ).
• These include:
  • International conventions, which are agreements recognized by contesting states
  • International custom, evidenced by general practice accepted as law
  • General principles of law recognized by civilized nations
  • Judicial decisions and teachings of qualified publicists, as subsidiary means

International Law and Domestic Law

• International law can become part of municipal law through:

Doctrine of Incorporation

• Deems international law as municipal or domestic law via constitutional declaration.
• Applies to customary rules accepted by all states, carrying opinion juris necessitates.
• Per the 1987 Philippine Constitution, the Philippines renounces war, adopts international law principles, and adheres to peace and cooperation.

Doctrine of Transformation

• International law rules are not binding unless incorporated into domestic legislation.
• The rules must be transformed into municipal law to be binding on the state.
• Treaties or international agreements require concurrence by at least two-thirds of the Senate to be valid.
• Pacta sunt servanda implies that treaties and executive agreements are equally binding commitments.
• States must fulfill treaty obligations and cannot use their laws as excuses for non-compliance.
• International law allows the Philippines to try Kuroda, a Japanese general, for WWII atrocities, as the Hague and Geneva Conventions are incorporated into Philippine law, even without the Philippines being a signatory.

National Territory

• The national territory of the Philippines includes:
  • The Philippine archipelago, its islands, and embraced waters.
  • Territories the Philippines has jurisdiction over, consisting of terrestrial, fluvial, and aerial domains.
  • Territorial sea, seabed, subsoil, insular shelves, and submarine areas.
  • Waters surrounding, between, and connecting the islands.
• Philippine territory delineation is based on the Treaty of Paris and UNCLOS, adopting the archipelagic doctrine.
• "Internal waters" has different meanings in the Philippine Constitution versus UNCLOS.

Treaty Validity

• Treaties require presidential ratification and Senate concurrence.
• Executive agreements do not need Senate concurrence.
• The Supreme Court can declare treaties unconstitutional.
• In case of conflict with municipal law:
  • Efforts must be made to reconcile differences.
  • If irreconcilable:
    • International law prevails in the International Court of Justice.
    • Municipal law prevails in municipal courts; treaties contravening the Constitution and police power are superseded by the latter.

Factors Encouraging Adherence

• States observe international law due to:
  • Belief in its reasonableness
  • Fear of being unconventional
  • Fear of reprisal

Functions of International Law

• Maintaining international peace and order
• Protecting state rights and fundamental human rights through sanctions
• Promoting economic, social, cultural, and technological development

Basis of International Law

• International law is a true law based on differing schools of thought:
  • Law of Nature: It is rooted in a natural, universal principle of right and wrong, independent of mutual agreements.
  • Positivist Theory: It derives its binding force from the agreement of sovereign states, emphasizing coordination rather than subordination.
    • Eclectic Theory: It relies on both the law of nature and state consent, based on right reason and state practice.

Primary Sources of International Law

• Treaties: must be concluded by a significant number of states, reflecting a consensus
  • Bilateral treaties are binding between parties, especially if disputes arise.
• Custom: is a practice established between states and accepted as binding through prolonged usage Custom requires:
  • Duration or long state practice
  • Consistency of state practice
  • Generality of state practice by a significant number of states
  • Opinio juris sive necessitates requires acts to occur out of a sense of obligation
• General Principles of Law: These originate from natural law and are widely observed for their inherent goodness.

Secondary Sources

• These are not authoritative, but persuasive and offer insights into the interpretation of international law.
• These sources consist of:
  • Decisions of international tribunals
  • Writings and teachings of experts

Conduct of Foreign Relations

• In states adhering to separation of powers, the President holds executive power, including managing foreign affairs.
• International law recognizes the head of state, not as an individual but as a representative of their state.
• Ambassadors represent the head of state and their policies, while new government recognition depends on stability and ability to meet international obligations.

Foreign Affairs Ministry

• Foreign powers are negotiated with by the ministry of foreign affairs, led by the Minister of Foreign Affairs.

Right of Legation

• The right of legation includes a sovereign states right to be represented by a diplomatic agent to another state.
• Consular relations are generally not of a diplomatic nature.
• The 1961 Vienna Convention on Diplomatic Relations simplifies diplomatic relations between states, and of permanent missions, takes place by mutual consent.

Diplomatic Agents Classification

• Vienna Convention classifies diplomatic representatives into four categories:
  • Ambassadors, papal nuncios
  • Ministers, papal internuncios
  • Ministers' residents,
  • Charge's d'affaires

Consular Relations

• The establishment of the consular institution arose from the necessity to promote and protect the commercial interests of the nationals of a State. But with the establishment of permanent legations, and the circumstance that foreign merchants were brought under the civil and criminal jurisdiction of the State where they resided, the importance of consuls declined during the seventeenth and eighteenth centuries.

Consulate Types

• Consulates are broken down into career consuls and honorary consuls.
• Career consuls are professionals sent by their home government.
• Honorary consuls are appointed from local businessmen, without same privileges as professionals.

Consular Posts

• Consular posts fall under four classes:
  • Consuls general
  • Consuls
  • Vice-consuls
  • Consular agents
• Consuls are recognized after authorization from the sending State (lettre de patent) and exequatur grant from the receiving State.
• Receiving states can refuse or conditionally grant exequaturs, which may be withdrawn anytime.
• Consuls-General are usually appointed as heads a large area district.

Consular Functions

• Vienna Convention Article 5 details consular functions:
  • Protecting interests of individuals and corporations of the sending state.
  • Advancing commercial, economic, cultural, and scientific relations.
  • Reporting conditions and developments to the sending state.
  • Issuing passports and visas.
  • Assisting nationals of the sending state.
  • Acting as notary and civil registrar.
  • Safeguarding interests in succession and cases of minors.
  • Representing nationals before tribunals.
  • Transmitting judicial documents.
  • Supervising vessels and aircraft.
  • Assisting the same said vessels and their crews.

Restrictions

• Consular officers may exercise his functions outside his consular district.
• Additionally, consuls can register marriages, deaths, adoptions and certify translations.

Appointment of Diplomatic Envoys

• Qualifications for diplomatic corps members are set through municipal law, but competence is also essential.
• The Philippine President appoints ambassadors and ministers with the Commission on Appointments' consent.
• The Foreign Service Act of 1991 mandates examinations for foreign service officers.
• Presidents may appoint non-career individuals as Chiefs of Mission at their discretion.

Diplomatic Appointment Process

• Diplomatic appointment starts with an informal inquiry for acceptance by the receiving state before official appointment, so that embarrassment can be avoided.
• A state can refuse envoys without justification.
• Diplomatic staff should typically be nationals of the sending state, where consent is needed from the receiving state and members of the same state can not be withdrawn.

Diplomatic Requirements

• The following must be provided to accepted envoy
  • Diplomatic passport
  • Letters of credence
  • instructions from the head of state
• The letter of credence accredits the envoy.
• Ministry of Foreign Affairs is notified of mission members.
• The mission head starts in the receiving state upon presenting credentials or giving notice.

Diplomatic Personnel Tour of Duty

• Presidents can recall diplomatic representatives, unless discretion is abused.
• The power to conduct foreign policy rests with the executive branch.
• Foreign Affairs Secretaries can transfer or reassign foreign service officers.
• Domestic travel can be issued only when there is recall or grave abuse of discretion is being investigated.

Political Ambassador Tenure

• Political ambassadors' tenure is tied to the appointing authority, in accordance to the Supreme Court decision.
• Termination does not require legally recognized cause, and as a ambassador, they are placed in respective legation of embassy.

Diplomatic Missions Functions

• The 'diplomatic mission' is a state's representation in another, with the latter's consent.
• "Premises of a mission" includes the required buildings and land.
• Key functions are:
  • Representing the sending state.
  • Protecting interests of the sending state and its nationals.
  • Negotiating with the receiving state.
  • Reporting developments to the sending state.

Diplomatic Representative

• The diplomatic representative also takes protest when needed and also inquire governments, as well as protect citizens.
• The diplomat builds goodwill for their state but should remain uninvolved in local politics.

Diplomatic Mission Termination

• Diplomatic mission termination can be caused by:
  • Recall
  • Breaking of relations
  • Outbreak of war
  • Persona non grata status
  • Retirement

Persona Non Grata (PNG)

• Envoys causing themselves persona non grata, are recalled by their government, if not, they are dismissed.
• The state is known to give diplomats that are no longer welcome PNG status. Diplomats can be known as PNG for
  • disparaging remarks
  • law violation
  • political interference
• Compliance with government requests is expected, and if it is declined the government in question, dismisses them
• The privilege of envoys is their exemption from subpoena as witnesses. No envoy can be compelled, or even requested, to appear as witness to a civil, criminal, or administrative action.

Diplomatic Privileges, Immunities

• A 'diplomatic agent' heads or is on the staff of the mission, is based on customary and conventional international law.
• Ambassadors, Greeks held them in high regard, and Romans held them with high value.
• Offenses against envoys are against their state's sovereign power.
• The reason is enabling their function without authorities impeding/Diplomatic immunity is based on function and necessity.

Diplomatic Immunity

• Diplomatic immunity is a political question.
• Courts should defer to the government's determination.
• Courts must accept immunity claims recognized by the executive branch.

Personal Inviolability

• Under Article 29 of the Vienna Convention, diplomatic agents are inviolable and immune from arrest. This protection is the most fundamental rule.
• The UN condemns violence against diplomatic missions, as it is a mutual interest.
• The receiving state must prevent attacks on diplomatic agents.
• UN Convention (1973) requires states to criminalize attacks on protected persons and to extradite or prosecute offenders.

Rights

• The receiving State is duty bound to treat diplomatic envoys with due respect.
• Philippines enacted Republic Act No. 75 - This penalizes any person who assaults, strikes, wounds, imprisons or in any other manner does violence to the person of an ambassador or public minister, with a penalty much higher than an ordinary assault.
• Receiving states cannot prosecute diplomatic envoys acting within the internal order of the State.

Rule Exception

• Breaking order can result in being restraint, that sends home the officer, or a domestic case for not having cause.
• 1972, the United States enacted the Protection of Diplomats Act and the Act for the Prevention and Punishment of Crimes Against Internationally Protected Persons. These laws implemented the 1971 OAS Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons That are of International Significance; and the 1973 United Nations Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including diplomatic Agents.

Case in Tehran

• The United States sought justice through the ICJ from Iran following the American Embassy takeover.
• Iran violated international law by not protecting the embassy staff, and the same ruling directed no US diplomatic was to be compelled into justice.
• The court was rejected in these decisions, but to resolve the Inter- national Court of Justice, the highest organ for interpreting international law that exists in the world, the problem of how to enforce that mandate against a defiant State still arose. Even then, the only recourse is expulsion.

Diplomatic Premises

• Under Article 22 of the Vienna Convention, mission premises are inviolable and immune from search or execution.
• Article 23 provides for tax exceptions.
• The State Immunity Act 1978 provides immunity for commercial bank accounts, so the state can properly operate.

Article 24

• It is to be noted that by article 24 of the Vienna Convention, the archives and documents of the mission are inviolable at any time and wherever they may be.

Fatemi vs United States

• United States Court of Appeals, District of Columbia, 1963, this refers to iranian national crime as the city police had no authority to force them out.
• Therefore, by a result from the court, the arrest of the appellants was neither arbitrary nor illegal but orderly and proper under the circumstances, and there being no error concerning the trial.

Extraterritoriality and Exterritoriality

• The privilege of diplomatic persons is characterized as extra-territoriality. Extraterritoriality literally means that the person in question is viewed as outside of a given territory or jurisdiction, because envoys must be independent of local jurisdiction. The extraterritorial privileges are -
  • the right of official communication,
  • exemption from local jurisdiction,
  • exemption from customs duties and inspection, -exemption from taxation, -acquisition of his nationality by his children, - -and the right to display the flag.

KOUNI v. NAHIBA KHAR

• A counsellor of the embassy of the Islamic Republic of Mauritania, filed an action for divorce against his wife, who was of Tunisian nationality, under article 31 of the Tunisian code on personal status.
• This article provides for discretionary divorce (divorce abusive), a divorce which either spouse may seek without showing fault on the part of the other or obtaining the other spouse's consent.
• If the divorce is granted by the courts. she has the right to claim, as provided by the article, damages for the injury caused her by a divorce without grounds.

Exceptions

• Some exceptions to the immunity from civil and administrative jurisdiction are:

• 1. real actions relating to private property located in the receiving State, unless the diplomatic agent holds it on behalf of the sending State for purposes of the mission,

• (2) actions relating to succession in which the agent 1s involved as executor, administrator, heir, or legatee as private person and not on behalf of the sending State;

• (3) actions relating to professional or commercial activity exercised by the diplomatic agent outside his official functions. Some continental States do not grant diplomatic immunity for unofficial acts. An Italian court ruled that the third secretary of a Chilean Embassy was not entitled to diplomatic immunity in a suit for damages resulting from an automobile accident.

GLEN COVE v. United States

• United States District Court sustained the immunity from local taxation of property occupied by the Permanent Representative of the Soviet Union to the United Nations.
• A diplomatic agent has the right to have a private chapel for the practice of his religion, which must be granted by the municipal law of the receiving State and also enjoy complete secrecy of their correspondence and communication.

De Steyes v Bergman

• In Bergman v. De Steyes, it appeared that the defendant had been served with process in a court action in New York while on his way to Bolivia, to which country he had been accredited as French minister. The District Court of Appeals dismissed the case, ruling that the French diplomat should be granted immunity, on the principle that a diplomat in transit would be entitled to the same immunity as a diplomat in situ The privilege of the diplomat in transit applies only, however, if he is en route to an official mission. In United States v. Rosal" a Guatemalan ambassador to Belgium and the Netherlands had flown to New York on a personal visit and was arrested for possession of narcotics.

Diplomatic Staff Privileges

• Privileges of Diplomatic Staff, The Vienna Convention divides the personnel of a diplomatic mission into four categories and designs the privileges and immunities of each category.

Diplmoatic Asylum

• The Vienna Convention has no provision on diplomatic asylum, however, due to the inviolability of the premises of the diplomatic mission, individuals in the past sought refuge there, raising legal problems on diplomatic and territorial asylum.

Status of International Officials

• Under the United Nations Charter, representatives of Members States are granted such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization, where immunity comes from arrest or detention. The privileges and immunities accorded to representatives of Members are granted not for the personal benefit of the individual themselves, but in order to safeguard the independent exercise of their functions.

Activities of International Officials

• Likewise, officials and experts of the United Nations enjoy substantially the same privileges and immunities as representatives of member States.
• Some instances of espionage activities of members of the United Nations mission staff have posed certain problems in connection with the principle of diplomatic immunity.

International Officials and Activities

• When the case was up for argument, the Soviet Embassy sent an official communication to the court attesting to the diplomatic rank of Gubitchev, and to the fact that he remained an officer of the Ministry of Foreign Affairs of U.S.S.R., with the diplomatic rank of third Secretary. The court ruled that Melekh had no diplomatic status and could not qualify as diplomatic officer, hence, his claim of immunity was rejected. Moreover, the case was not within the original and exclusive jurisdiction of the Supreme Court.

Aquinos v. World Organization of Health

• The executive branch of the Philippine Government has expressly recognized that petitioner.
• Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host Agreement.
• Therefore the court in those cases followed precedent from the government, so the court can't execute under the President.