Sei sulla pagina 1di 2

1.

Define/ Explain briefly: (5%) each  Custom is distinguished from usage in that the latter, while also a long
a. International law (by Schwarzenberger) established way of doing things by states, is not coupled with the conviction
 Is the body of legal rules which apply between sovereign states and that it is obligatory and right.
such other entities as have been granted international personality. b. State from a nation
b. International diplomacy  The state is a legal concept, the nation is only a racial or ethnic concept.
 Relates to the objects of national or international policy and the c. Municipal law from international law ( accdg to the dualists)
conduct of foreign affairs or international relations.
c. “Lawmaking treaties”
Municipal Law International Law
 Even if originally agreed upon only by a few states, the treaty may
become binding upon the whole world if it is intended to lay down Is issued by a political Is not imposed upon but simply adopted but
rules for observance by all and it is subsequently signed or acceded superior for observance by states as a common rules of action among
to by other states which thereby submit to its provisions. those under its authority themselves
d. Sanctions
 The compulsive force of reciprocal advantage and fear of Consists mainly of Is derived not from any particular legislation but
retaliation. enactments from the from such sources as international customs,
e. Custom lawmaking authority of each international conventions and the general
 A practice which has grown up between states and has come to be state principles of law
accepted as binding by the mere fact of persistent usage over a long
period of time. Regulates the relations of Applies to the relations inter se of states and
f. Doctrine of incorporation individuals among other international persons
 International law are adopted as part of the state’s municipal law, themselves or with their own
by affirming their recognition of the principles of international law states
in their constitution.
g. Doctrine of transformation Violations of municipal law Questions of international law are resolved
 Generally accepted rules of international law are not per se binding are redressed through local through state-to-state transactions ranging from
upon the state but must first be embodied in legislation enacted by administrative and judicial peaceful method like negotiations and arbitration
the law-making body and so transformed into municipal law. processes to the hostile arbitrament of force like reprisals
h. General principles of law and even war
 Are mostly derived from the law of nature and are observed by the
majority of states because they are believed to be good and just. Breaches of municipal law Responsibility for infractions of international law
i. Monist viewpoint on international law generally entail only is usually collective in the sense that it attaches
 There is no substantial distinction between international law and individual responsibility directly to the state and not to its nationals
municipal law because they believe in the oneness or unity of all
law. d. Enforcement from observance
j. Dualist viewpoint on international law  Observance is essentially subjective and mainly dependent on the volition
 Who believe in the dichotomy of the law, there are certain of the entity which is supposed to be governed by the law. Enforcement on
established difference between international law and municipal the other hand, is the process by which such observance may be compelled,
law. usually by force or at least the threat of force.

2. Distinguish: (5%) each 3. Is international law true law? Explain briefly


a. Custom from usage  If we follow the Austinian concept that a rule of action can be considered
law only if it is prescribed by a political superior with power to punish
violators, then international law cannot be regarded as true law. However,
considering the more acceptable view that there are many norms of conduct 3.To encourage and ensure greater international cooperation in the
that society may voluntarily adopt and obey although no specific penalty is solution of certain common problems of a political, economic,
imposed for non-observance, international law may be said to possess the cultural or humanitarian character
qualities of true law. 4. Aims to provide for the orderly management of the relations of
states on the basis of the substantive rules they have agreed to
4. Enumerate (3% each) observe as members of the international community
a. Primary and secondary sources of international law d. Divisions of international law
 According to International Court of Justice the source of international law 1. Law of peace
may be generally classified as primary and secondary. 2. Law of war
Primary 3. Law of neutrality
a. International convetions, whether general or particular, establishing rules e. Concepts that have acquired the status of general principles of law
expressly recognized by the contesting state;  Prescription, estoppel, Pacta sunt servanada, consent, and res
b. International custom, as evidence of general practice accepted as law; judicata
c. Generally accepted principles of international law
Secondary 5. Discuss/explain briefly
d. Subject to the provisions of article 59, judicial decisions anf the techings a. The 3 schools of thought on basis of international law (5%)
of the most highly qualified publicists of the various nations, as subsidiary means for 1. Naturalist school of thought - there is a “natural and universal principle of
the determination of rules of law. right and wrong independent of any mutual intercourse or compact,” which
b. Sanctions of international law is supposed to be discovered and recognized by every individual through the
1. Belief shared by many states in the inherent reasonableness of use of his reason and his conscience.
international law and their common conviction that its observance 2. Positivists - the binding force of international law is derived from the
will redound to the welfare of the whole society of nations. agreement of sovereign states to be bound by it.
2. But regardless of the intrinsic merit of the rules of international 3. Eclectics or Grotians - both the law of nature and the consent of states as
law, they may still be observed by states because of the normal the basis of international law.
habits of obedience ingrained in the nature of man as social being.
3. Respect for the world opinion held by most states, or their desire 6. In our jurisdiction, what is the basic rule which prevails in case of irreconcilable
to project an agreeable public image in order to maintain the conflict between municipal law and international law? (5%)
goodwill and favourable regard of the rest of the family of nations.  The basic rule would be to attempt to reconcile the apparent contradiction
4. The constant and reasonable fear, present even in the most and thereby give effect, if possible, to both systems of law. For this purpose,
powerful states, that violation of international law might visit upon it should be presumed that municipal law is always enacted by each state
the culprit the retaliation of other states. with due regard for and never in defiance of the generally accepted
5. There is the machinery of the UN which, within the sphere of its principles of international law.
limited powers, has on many occasions proved to be an effective
deterrent to international disputes caused be disregard of the law 7. In our jurisdiction, in case of conflict between the Constitution and a treaty
of nations. entered into by the Philippine Government, which shall prevail? (5%)
c. Functions of international law  The Constitution authorizes the nullification of a treaty not only when it
1. To establish peace and order in the community of nations and to conflicts with the Constitution but also when it runs counter to an act of
prevent the employment of force, including war, in all international Congress. (Gonzales v. Hechanova)
relations .
2. It strives as well to promote world friendship by levelling the 8. Explain why stare decisis is not applicable in international law. (3%)
barriers, as of color or creed, that have so far obstructed the  According to Article 59 of the Statute of the International Court of Justice,
fostering of a closer understanding in the family of nations. “The decision of the Court has no binding force except between the parties
and in respect to that particular case.”