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Introduction to Public International Law

Joaquin G. Bernas, S.J.


2009 Edition
Rex Book Store
Manila, Philippines
Chapter 1 NATURE OF INTERNATIONAL LAW
A. What is International Law?
Traditional definition: It is a body of rules and principles of action which are
binding upon civilized states in their relations to one another.
Restatement (Third) of Foreign Relations Law of the US definition: It is the
law which deals:
(1) with the conduct of states and of international organizations and
(2) with their relations inter se1, as well as
(3) with some of their relations with persons, whether natural or juridical.
B. Scope of International Law (Code: SOH-FEP-C)
(1) Regulation of space expeditions
(2) Division of the ocean floor
(3) Protection of human rights
(4) Management of the international financial system
(5) Regulation of the environment
(6) Preservation of peace
(7) Interests of contemporary international and even domestic life
C. Is international law a law?
The reality is that States are bound by many rules not promulgated by
themselves. As Henkin observes, It is probably the case that almost all nations
observe almost all principles of international law and almost all of their
obligations most of the time. Brierly adds: The ultimate explanation of the
binding force of all law is that man, whether he is a single individual or whether
he is associated with other men in a state, is constrained, insofar2 as he is a
reasonable being, to believe that order and not chaos is the governing principle
of the world in which he lives. In the ultimate analysis, although the final enforcer
is power, fundamentally, there is a general respect for law because of the
possible consequences of defiance either to oneself or to the larger society.
D. Some theories about international law
1
2

Between or among themselves


To the extent

(1) Command theory Law consists of commands originating from a


sovereign and backed up by threats of sanction if disobeyed. In this view,
international law is not law because it does not come from a command of
a sovereign.
(2) Consensual theory Under this theory, international law derives its
binding force from the consent of the states. Treaties are an expression of
consent. Likewise, custom, as voluntary adherence to common practices,
is seen as expression of consent. In reality however, there are many
binding rules which do not derive from consent.
(3) Natural law theory Law is derived from the nature of man by reason.
International law is said to be an application of natural reason to the
nature of the state-person.
(4) Pragmatic3 There is general respect for law and also there is concern
about the consequences of defiance either to oneself or to the larger
society. International law is law because it seen as such by states and
other subjects of international law.
E. Public and private international law
Public International Law
Sometimes referred to only as
international law
Governs the relationships between and
among states and also their relations
with international organizations and
individual persons

Private International Law


More commonly called conflict of laws
Really is a domestic law which deals
with cases where foreign law intrudes
in the domestic sphere where there are
questions of applicability of foreign law
or the role of foreign courts

F. Brief historical development of international law


(1) From Ancient Law to the League of Nations
Ancient international law governed exchange of diplomatic
emissaries4, peace treaties, etc. in the world of ancient Romans
and even earlier. There is evidence of treaties concluded between
Jews and Romans, Syrians and Spartans. The progressive rules of
jus gentium, seen as a law common to all men, became the law of
the vast Roman Empire.

Dealing with things sensibly and realistically in a way that is based on practical
rather than theoretical considerations
4
A person sent on a special mission, usually as a diplomatic representative

Modern international law began with the birth of nation-states in the


Medieval Age. The governing principles were derived from Roman
Law or Canon Law which in turn drew heavily from natural law.
Hugo Grotius (Dutch) father of modern international law. What he
called the law of nations was later given the name of international
law by Jeremy Bentham (British philosopher).
Some of the significant milestones in the development of
international law:
(a) The Peace of Westphalia ended the Thirty Years War
(1618-1648) and established a treaty-based framework
for peace cooperation. It was at this time that pacta sunt
servanda5 arose.
(b) Congress of Vienna (1815) ended the Napoleonic
Wars and created a sophisticated system of multilateral
political and economic cooperation
(c) Covenant of the League of Nations (1920) included
the Treaty of Versailles which ended World War I
In the aftermath of World War I, the victors decided to create an
institution designed to prevent the recurrence of world conflagration.
Thus, the League of Nations was born. Its membership consisted of
43 states which included the five British dominions of India, Canada,
South Africa, Australia, and New Zealand. The US did not join. The
League created the Permanent Court of International Justice.
(2) From the end of World War II to the end of the Cold War
The League of Nations failed to prevent World War II. Thus, the
formulation of a new avenue for peace became the preoccupation
of the victors. Hence was founded the United Nations in 1945. This
marked the shift of power away from Europe and the beginning of a
truly universal institution. The universalization was advanced by
decolonization which resulted in the expansion of the membership
of the UN.
It was during this period that 3 major groupings of states arose.

A treaty is based on the consent of the parties to it, is binding, and must be
executed in good faith. The concept known by the Latin formula pacta sunt
servanda (agreements must be kept) is arguably the oldest principle of
international law.

(a) Western states As to international legislation, they


insisted on two points. First, legal provisions must be
clear. Second, any substantive rule must be
accompanied by an implementation mechanism that can
spot and correct violations.
(b) Socialist states led by the Soviet Union. They formed
the socalist camp. They sought to avert Western
intrusion into domestic affairs even as they sought
relatively good relations with the West for the sake of
economic and commercial interchange. They also sought
to convert developing nations to their ideology.
(c) Developing countries formed the overwhelming
majority. Consisted mainly of former colonies suffering
from underdevelopment together with newly
industrializing countries such as the Philippines, Malaysia,
Thailand, Singapore and South Korea who had earned
their independence through armed or political struggle
while remaining under the influence of Western or
socialist ideas.
(3) The end of the Cold War
The dissolution of the Soviet Union resulted in the end of the Cold
War with the re-emergence of international relations based on
multiple sources of power and not mainly on idealogy.
At present there is only one super power, the US, politically and
ideologically leading the western states. The US acts both as world
policeman and also as global mediator.