Legal Basis of International Relations PDF

Legal Basis of International Relations TCW Unit 2 Content: General Principles of International Law States, Nationality and Statelessness Law of the Sea International Human Rights Law Principles on International Environmental Law A. General Principles of International Law...

Legal Basis of International Relations TCW Unit 2 Content: General Principles of International Law States, Nationality and Statelessness Law of the Sea International Human Rights Law Principles on International Environmental Law A. General Principles of International 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. National Law (municipal law)- regulates relations of individuals among themselves or within the state. It consists of statutory enactments, executive orders, and judicial pronouncements. If there is conflict, the same is redressed through local, administrative and judicial processes.  How does international law become part of the law of the state? Doctrine of incorporation – Art. II, Section 2 (1987 Constitution). The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (automatic or self- executing) Doctrine of transformation – requires enactment by the country’s legislative body in order to give international laws domestic effect. Art. VII, Section 21. 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.  In Pharmaceutical and Health Care Association (GR No. 173034, October 9, 2007, citing Joaquin G. Bernas, S.J., An Introduction to Public International Law, 2002), the Supreme Court, writing through Justice Austria-Martinez, declared: “Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which provides that ‘[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.’ Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts.”  First is that Article II.2’s “incorporation clause” absolutely Refuting makes no distinction between treaties and custom. the Acts of concurrence done by the doctrine of Senate are made in the form of transformat “resolutions.” Resolutions are not laws that effects transformations. ion in the The wording of the Senate Philippines resolutions themselves makes no mention of “transforming” treaties as to be part of Philippine law. Sourced from: https://www.bworldonline.com/philippine- treaties-and-the-doctrine-of-incorporation/ Some examples of incorporated international treaties ICCPR (International Covenant on Civil and Political Rights) in October 23, 1986; the ICESCR (International Covenant on Economic, Social and Cultural Rights) on June 7, 1974; the CEDAW (Convention on the elimination of all forms of discrimination against women) on August 5, 1981; the CRC (Convention of the rights of the Child) on August 21, 1990 the CERD ( Convention on the Elimination of Racial Discrimination) on September 15, 1967 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, July 5, 1995. CAT (Convention against torture and other cruel, inhuman or degrading treatment or punishment) on June 18, 1986.  Sources of International Law a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; d) judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for determination of rules of law.  Agreements concluded between states, in written form, and governed by international law, embodied either in a single instrument or in two or more related Internation instruments and whatever its particular designation (Art. 2 (1)(a), al Vienna Convention on Law of Treaties) convention The Philippine president has the s (treaties) power to ratify a treaty. However, is will only be valid and effective unless concurred in by at least 2/3 of the Senate (Art VII, Sec. 21).  Basic Principles Concerning Treaties Pacta tertiis nec Pacta sunt servanda – Rebuc sic stantibus – “Things nocent nec prosunt – “Agreements must be standing thus” A fundamental “A Treaty binds the kept” and must be change of circumstances which parties and only the performed by the has occurred regarding those parties.” parties in good faith existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground enna Convention on the Law of Treaties: tps://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf for terminating or withdrawing from the treaty International Customs aka customary law, consists of rules of law derived from the consistent conduct of the states, acting out of the belief that the law required them to act that way. State practice – there must be evidence of substantial uniformity of practice by a substantial number of states (proofs of state practice: administrative acts, legislations, court decisions, historical records, international stage activities) Opinio juris sive necessitatis (opinion of law or necessity) – the belief that the given practice is rendered obligatory by the existence of a rule requiring it. States must act in compliance with the norm not merely out of convenience, habit, coincidence, or political expediency, but rather out of a sense of legal obligation.  Jus Cogens and Obligations Erga Omnes Jus cogens (Compelling Law) – norms that command preemptory authority, superseding conflicting treaties and customs that can neither be derogated nor modified, except by a norm or similar character.  Jus Cogens and Obligations Erga Omnes Obligations erga omnes (Towards All) – 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, so that a breach of that obligation enables all States to take action Examples: (a) The prohibition of genocide; (b) The prohibition of aggression; (c) The prohibition of crimes against humanity; (d) The basic rules of international humanitarian law; (e) The prohibition of racial discrimination and apartheid; (f) The prohibition of slavery; (g) The prohibition of torture; (h) The right of self-determination. Affirm or Refute: The Philippines has become a member of the World Trade Organization (WTO) and resultantly agreed that it "shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements.” This is assailed as unconstitutional because this undertaking unduly limits, restricts and impairs Philippine sovereignty and means among others that Congress could not pass legislation that will be good for our national interest and general welfare if such legislation will not conform with the WTO Agreements.