1.2 RED & SULIT - General Concepts - PILA

P U B L I C
I N T E R N A T I O N A L
L A W
ARELLANO SCHOOL OF LAW
SAT 4:00-7:00PM
ATTY. IRENE VALONES
RED, ROI EARL J.

SULIT, ALEXIS L.
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GENERAL CONCEPTS
Obligation Erga Omnes & Jus Cogens
Aequo et bono & Res Judicata
Rebus Sic Stantibus
Pacta Sun Servanda
Opinio Juris Sive Necessitatis
Doctrine of Incorporation v. Doctrine of Transformation
Stare Decisis & Jus Inter Gentes
Customary International Law
Monism v. Dualism
International Law v. Municipal Law
International Rule & Municipal Rule
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OBLIGATION ERGA OMNES
"FLOWING TO ALL"
Obligations Erga Omnes are “obligations of a State towards the

international community as a whole,” which are the “concern of all States”
and for whose protection all States have a “legal interest” [Barcelona
Traction Case, (ICJ, 1970)]
JUS COGENS
PEREMPTORY NORM OF GENERAL INTERNATIONAL LAW
A jus cogens is a norm accepted and recognized by the international

community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of
general international law having the same character [Art. 53 of the Vienna
Convention on the Law of Treaties (hereinafter referred to as “VCLT”)]
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AEQUEO ET BONO
"EQUITABLE AND GOOD"
It denotes that a court may decide a case on the basis of justice and equity,
and not be bound by technical legal rules [PELLET]. The court may apply
this standard to decide a case when the parties to the dispute agree thereto
[Art. 38(2), ICJ Statute].
RES JUDICATA
"A MATTER DECIDED"
This doctrine of finality of judgment is grounded on fundamental

considerations of public policy and sound practice. Final adjudication of a
competent authority is conclusive, binding, and must be implemented in
good faith. It cannot be relitigated by another.
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REBUS SIC STANTIBUS
"THINGS STANDING THUS"
The doctrine of rebus sic stantibus is a principle in customary international

law providing that where there has been a fundamental change of
circumstances since an agreement was concluded, a party to that agreement
may withdraw from or terminate it.
PACTA SUN SERVANDA

"PACTS MUST BE RESPECTED"
Every treaty in force is binding upon the parties to it and must be

performed by them in good faith [Art. 26, VCLT]. This is considered as
customary international law and applies to all obligations contained in a
treaty.
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OPINIO JURIS SIVE NECESSITATIS
"AN OPINION OF LAW"
Before a norm may become customary international law binding on all

States, there must be state practice and opinio juris sive necessitatis. [North
Sea Continental Shelf Cases (ICJ, 1969)]
This refers to the belief on the part of states that a particular practice is
required by law, and not because of courtesy or political expediency [North
Sea Continental Shelf Cases (ICJ, 1969)]. (i.e. the State acts in such a
manner because it believes it is obligated to do so)
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DOCTRINE OF INCORPORATION
AND DOCTRINE OF TRANSFORMATION
Article II of the 1987 constitution provides that “The Philippines … adopts the generally accepted principles of international law as part
of the law of the land …”. Under the 1987 Constitution, international law can become part of the sphere of domestic law either by
transformation or incorporation.
"Doctrine of incorporation,” which “mandates that "Doctrine of transformation”, that “which holds
the Philippines is bound by generally accepted that the generally accepted rules of international
principles of international law which automatically law are not per se binding upon the State but must
form part of Philippine law by operation of the first be embodied in legislation enacted by the
Constitution.” (Justice Carpio, in his dissent in lawmaking body and so transformed will they
Bayan Muna, 2011; citing Agpalo, International become binding upon the State as part of its
Law, 2006). municipal law.” (Isagani Cruz, International Law,
2000)
GENERALLY, incorporation is for customs and transformation for treaties.
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STARE DECISIS
“TO STAND BY THINGS DECIDED”
The familiar doctrine of stare decisis commands that once a question of law
has been examined and decided, it should be deemed settled and closed to
further argument. This simply means that a ruling on a certain state of facts
established in a final decision of the Philippine Supreme Court has to be
followed in subsequent cases by all courts in the land where the facts are
substantially the same, regardless of whether the parties and property are
the same.
JUS GENTIUM
"THE LAW OF NATIONS"
It is the body of treaties, U.N. conventions, and other international

agreements. Jus Gentium is a concept of international law within the
ancient Roman legal system and Western law traditions based on or
influenced by it. It is not a body of statute law or a legal code, but rather
customary law thought to be held in common by all gentes ("peoples" or
"nations") in "reasoned compliance with standards of international conduct
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JUS INTER GENTES
"THE LAW BETWEEN THE PEOPLE"
Jus inter gentes is the body of treaties, U.N. conventions, and other
international agreements. Originally a Roman law concept, it later became
a major part of public international law. The difference between Jus Inter
Gentes and Jus Gentium is that the former includes internationally
recognized human rights. It encompasses the set of rules, norms, and
standards generally accepted in relations between nations. Generally
speaking, it is a basis for establishing normative guidelines and a common
conceptual framework to guide states across a broad range of domains,
including war, diplomacy, trade, and human rights. International law aims
at the practice of stable, consistent, and organized international relations.
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CUSTOMARY INTERNATIONAL LAW
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
ELEMENTS
1.) Established, widespread, and consistent practice on part of the state
2.) Opinion juris sive necessitates (opinion as to law or necessity)
MATERIAL FACTOR
How states behave or the consistency and the generality of the practice
PSYCHOLOGICAL FACTOR
Why they behave the way they do
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DUALIST THEORY V. MONIST THEORY
The terms monism and dualism are used to describe two different theories of the
relationship between international law and national law
DUALISM MONISM
*when international or municipal law are *International and municipal laws belong
in conflict, Municipal law must prevail to only one system of law
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INTERNATIONAL RULE
Before an international tribunal, a state may not plead its own law as an
excuse for failure to comply with international law. Exception: Art. 46 of
Vienna Convention = in cases where the constitutional violation was
manifest and concerned a rule of its internal law of fundamental
importance. Manifest = objectively evident to any State conducting itself in
the matter in accordance with normal practice and in good faith
MUNICIPAL RULE
Domestic courts are bound to apply the local law. Should a conflict arise
between an international agreement and the Constitution, the treaty
would not be valid and operative as domestic law. Art. 8, Sec. 5 of the
Constitution explicitly recognizes the power of the Supreme Court to
declare a treaty unconstitutional; however, even if declared
unconstitutional, the treaty will not lose its character as an international
law
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IS EVERYTHING CLEAR?
QUESTIONS?
THANK YOU!
13/13

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P U B L I C

RED, ROI EARL J.

Obligations Erga Omnes are “obligations of a State towards the

A jus cogens is a norm accepted and recognized by the international

This doctrine of finality of judgment is grounded on fundamental

The doctrine of rebus sic stantibus is a principle in customary international

PACTA SUN SERVANDA

Every treaty in force is binding upon the parties to it and must be

Before a norm may become customary international law binding on all

GENERALLY, incorporation is for customs and transformation for treaties.

It is the body of treaties, U.N. conventions, and other international

Generally accepted principles of international law refer to norms of general

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