PIL MIDTERM DEFENSOR-SANTIAGO
YAMAMOTO-SANTOS
CHAPTER 1: THE INTERNATIONAL SYSTEM
INTERNATIONAL LAW AS A PROCESS
International Law unique system of law that continuously evolves from the
process of identifying normative conduct, which primarily governs relations
among states, and secondarily governs other actors in the international
system.
- Follows the principle of collective responsibility holds the
state responsible, not only for ordinary violations of international
law, but also for gross violations of rules that enshrine essential
community values.
- A process rather than a set of pre-existing immutable rules.
- Application of international law means the identification of what
international law is on a given point, under the peculiar
circumstances of a given time.
National Legal System - has a codified or easily identified body of rules, all
promulgated under the theory that the state has a monopoly of force to coerce
its citizen to obey the law.
- Characterized by a tripartite system: legislation, execution, and
adjudication.
- Follows the principle of individual responsibility
International Legal System does not recognize a sovereign authority with
power to impose its will on the world.
- There is still relative anarchy
Self-determination- by virtue of which, they freely determine their political
status.
- Legal right to free choice
- All people have the right to existence.
McDougal and New Haven School
- Underlies the definition of international law as a continuing process
- Policy oriented perspective on international law
- Behavioral approach international law is regarded no longer as
a defined set of rules of obligation, but as a comprehensive process
of decision making
- McDougals definition of international law a comprehensive
process of authoritative decision in which rules are continuously
made and remade
- 19th century: international law was exclusive to the western
European powers, who laid down conditions before they would
issue their consent to the extension of international law to other
countries.
- Law is not a system of rules, but a normative social system
continuously built around trends of authoritative decisions taken by
authorized decision-makers.
Uncertainty in International Law
- Although the actors in international law may agree on the
provisions of particular norms of conduct, they do not always agree
on how those norms should be identified.
- Disagreements are produced by the subjective nature of
international law theory
American Hegemonic Theory threatens the 21st century idea of world
peace
- Political, economic, or military predominance or control of one state
over another state.
- US President Bushs power as commander in chief and chief
executive under the Constitution are superior over the Geneva
Conventions and customary international law.
I.F.S. VILLANUEVA
ATTY.
INTERNATIONAL LAW AS CULTURE
States principal actors in the international legal culture
Individuals officials of the state
- Play only a very limited role in the international legal culture
Sovereign and independent state principal players in the international
legal culture
Individuals secondary players in the international legal culture
Collective Responsibility both that the whole State community is liable for
any breach of international law committed by any state representative and that
the whole state community may suffer from the consequences of the wrongful
act. (Cassese)
- Exceptions: war crimes, crimes against peace, and crime against
humanity (individual responsibility is involved)
Restriction on State Freedom
3 Factors:
1. Network of international treaties
2. Legal restrictions on the right to use force
3. Development of jus cogens peremptory norms which cannot be
derogated by international agreements among states.
Jus Gogens a body of law from which no derogation is permissible.
- States
Jus Dispositivum/dispositive law law adopted by consent
- The body of permissive general international law, outside of jus
cogens, which accommodates opting-out, adjustment or
derogation, within the private agreements, domestic statutes or
bilateral treaties
Principle of Effectiveness international law accepts that only those claims
and situations which are effective can produce legal effect.
Ergo Omnes duties owed to all contracting states, and accompanied by a
corresponding right belonging to every other contracting state, whether or not
it has suffered any prejudice from the infraction of the duty
International Law Today
- Coexistence of old and new patterns
- Old Patterns of International Law
1. Force as the primary source of legitimation
2. Extreme decentralization of legal functions
3. Unfettered freedom of states
4. Unrestricted right to resort to armed violence
- New Patterns of International Law
1. Creation of international organizations
2. Restraints on the use of force
3 Categories of International Norms
1. Universal applies to all states
2. General applies to 2 groups of states
3. Particular applies to one segment of the international community
Controversial Issues in International Law
1. Campaign for self determination rights for various minority groups
and indigenous people.
2. Demand for changes in the traditional human rights practices of
non-Western people
3. Articulated concerns over democracy, governance, and corruption.
INTERNATIONAL LAW AS LAW
Factors of International Law Disputes
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PIL MIDTERM DEFENSOR-SANTIAGO ATTY. YAMAMOTO-SANTOS

1. Genuine uncertainty about the facts Dualism international law is not binding on a state without its consent
2. Genuine uncertainty about the law
3. Demand for change in the law PRINCIPLES OF THE INTERNATIONAL SYSTEM
4. Unfriendly but legal acts
5. Violation of a body of rules not forming part of international law International System network of relationships existing primarily between
states recognizing certain common principles and way of doing things
Usefulness of International Law - 190 independent states
1. Consistency among domestic legal orders, or in international
commercial transactions Fundamental Rights and Duties of the States
2. Mutual benefit, promotion of human rights, and limitation of 1. Sovereign Equality part of jus cogens
weapons o Sovereignty jurisdiction over national territory
3. Pursuit of common international goals, economics, and o Legal Equality all states are treated the same way
cooperation o Components:
Independence the capacity of the state to
Consensus Doctrine states accept or consent to the general system of provide for its own well being and
international law development free from the domination of
other states, providing it does not impair or
Deficiencies in Enforcement of International Law violate their common rights
1. Low chance of effective enforcement Principle of Legal Equality of States
2. Absence of system of institutionalized enforcement equality of legal rights and duties
2. Non-intervention in the internal or external affairs of other
HISTORICAL BACKGROUND states part of jus cogens
o Refrain from entering into agreements with other States
400 years ago with a view to intervening or interfering in internal or
- Began in the west external affairs of other states
- Treaties have been discovered in Mesopotamia, Egypt, and other o What is prohibited is not only the use of force but also
Middle eastern powers. other forms of intervention, such as economic pressure
- No international community of states yet or coercion, political destabilization, or facilitating
6th Century BC domestic unrest.
- Greek philosophy exalted critical and rational thinking, constantly 3. Prohibition of Force part of jus cogens
questioning and analyzing man and nature o the threat of use of armed force, as well as economic
- The Romans embraced the Greek concept of natural law force, is proscribed
4. Peaceful Settlement of Disputes part of jus cogens
Doctrine of Sovereignty within the state, the sovereign issued laws which o If a state rejects one specific mode of settlement
were binding, provided they followed the laws of God and nature proposed by the other litigant, the unwilling state cannot
- The sovereign was the supreme legislator be obliged to agree.
- Formulated by Jean Bodin 5. Respect for Human Rights part of jus cogens
o Human rights include proscription of racial
St. Thomas Aquinas advocate of natural law discrimination, apartheid, slavery, genocide, provision
- Natural law was part of Gods law for self-determination of peoples
6. Self-determination part of jus cogens
Founders of Modern International Law o A qualified right
1. Francisco Vittoria since international law was based on natural
law which is universal, international law covers not only Europeans, Jus Cogesn rules and principles accepted and recognized by the
but also non-Europeans international community as a whole, as standards from which no derogation is
2. Francisco Suarez international law is obligatory because it is permitted.
based on natural law - Any treaty contrary to jus cogens is null and void.
3. Hugo Grotius father of international law
o Natural law is founded exclusively on reason, and not Common Features of the Fundamental Rights and Duties of the States
on divine law. 1. These are the result of conflicting views of states; some are
o Doctrine of freedom of the seas ambiguous
Schools of Thought 2. Bind all actors in the international community
1. The Naturalist School regards natural law as a moralistic 3. Entitle all actors in the international community to invoke them
system 4. Jus Cogens
2. The Positivist School gives importance to the actual practice of 5. Rely heavily on the UN for implementation and enforcement.
states
o Emphasizes modern practice instead of innate
principles
o Used empirical method adopted by the Renaissance by
deriving ideas from experience.

Monism- claims that both international law and national law are based on one
fundamental principle
- Concept of right or social solidarity
- Pacta Sunt Servanda agreement must be carried out
I.F.S. VILLANUEVA 2