PUBLIC INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW

• Branch of public law which regulates the relations of stats and of other entities which have been granted an international law.
  Rules based on the natural moral law and on common consent, which govern the relations of sovereign states and other international persons.
  

INTERNATIONAL LEGAL SYSTEMS CONSIST OF:

• Natural moral law principles
  Set of generally agreed-upon norms of conduct
  and certain authoritative processes for enacting and changing these aforementioned norms.

BASIS OF INTERNATIONAL LAW

1. NATURAL LAW SCHOOL- This theory postulates the natural moral law as the basis of PILA. The natural moral law may be said to b the voice of conscience, a rule of human conduct implanted by God in the very nature of man. Thru this law, a man is supposed to do whatever is right and to avoid whatever is evil. Thus, laws not in conformity with the moral nature cannot b binding on sovereign states.
2. POSITIVIST SCHOOL- Insists that the only basis of PILA is the common consent of states. This common consent, can be found in acquiescence to customs.
3. ECLECTIC SCHOOL- Maintains that PILA is premised both on natural moral law and on common consent.

PAQUETE HABANA

• In this case, Two fishing vessels, which during the Spanish and American war, while regularly engaged in fishing in Cuban coast, were seized by U.S. Navy. In Florida, to which they have been brought, they were considered by a U.S. district as prize of war. They appealed to the Supreme Court of US. They were exempted from such capture because of an international custom.
• International law is part of our law, and must be ascertained and administered by courts of justice of appropriate jurisdiction. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which thy treat.
  

WEST RAND CENTRAL GOLD MINING CO. LTD VS. THE KING

• Government officials of Republic of South Africa allegedly seized two parcels of gold owned by West Rand. Subsequently, the Republic was conquered by Great Britain. The company filed a suit against Great Britain to recover said parcels, on th ground that as conqueror it had the duty to assume obligations of the conquered South African Republic.
  
• In this case, particular doctrine alleged had not been adequately proved. Thus, it was held that Great Britain is not bound by the obligations of the Republic of South Africa. Although it is true that whatever has received the common consent of civilized nations must have received assent of Great Britain. But any doctrine so invoked must be one really accepted as binding among nations.
  
• The mere opinions of jurists, however eminent or learned, that it ought to be so recognized are not in themselves sufficient. They must have received the express sanction of international agreement or gradually have grown to be part of international law by their frequent practical recognition in dealing between various nations.

Q: Is International Comity a source of international law?

A: NO. It is distinctly the contrast to the law of nations. But there can be no doubt that many a rule which formerly was a rule of international comity only is nowadays a rule of international law.

Q: What is the difference between SUBJECT and OBJECT of International Law?

A: SUBJECT is an entity directly possessed of rights and obligations in the international legal order. While as an OBJECT is merely indirectly vested with rights and obligations in the international sphere.
Q: Are Private Individuals regarded as OBJECT of International law?

A: No. They are SUBJECT. But while an individual is a subject of international law, his capacity as such is different from that of his state. Thus, he cannot make treaties and cannot possess belligerent rights. But it is clear that he can commit war crimes and piracy, and crimes against humanity and foreign sovereigns; he can own property which international law protects for acts arising ex contractu or ex delicto. He may not be able to pursue his claims and take action to protect his property without intervention of his own State, but it is still his claim and still his interest which the machinery of enforcement is designed to facilitate.

THE NUREMBERG JUDGMENT

• One of the defenses raised by the war criminals in Germany was that they themselves are mere individuals were not directly liable for their acts; that they were merely carrying out the orders of Hitler and that individuals have no international duties.
• International law punishes not only states but also individuals. This rule has long been recognized. Crimes against international law are committed by MEN, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

COUNT BERNADOTTE CASE

• Count Bernadotte was assassinated, while working as part of a United Nations Commission in Israel. The General Assembly requested the International Court of Justice to render an advisory opinion as to whether or not the UN can bring an international claim against the government responsible for the killing.
  It was held that the UN can bring such a claim. Competence to bring an international claim is the capacity to resort to the customary methods recognized by international law for the establishment, the presentation, and the settlement of claims. Among these methods may be mentioned:
  1. protest
  2. request for an inquiry
  3. negotiation
  4. and request for submission to an arbitral tribunal or to the World Court insofar as this may be authorized by its Statute.
• The UN was clearly intended by the Charter to exercise and enjoy functions, and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It must be acknowledged that its members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the necessary competence. According, the court has come to the conclusion that the UN is an international person and may bring an international claim even against a non-member, considering that the UN represents the vast majority of the members of the international community.

DEPENDENT STATES

They are subject to the control and sovereignty of some other “superior” states in the conduct of their external and foreign relations. They may be allowed some control in foreign matters they are considered as international persons; if they have no authority whatsoever on this point, their personality is restricted. They may not even be accorded any status as international entities.

TWO KINDS OF DEPENDENT STATES:

PROTECTORATE
SUZERAINTY


PROTECTORATE STATE

Possesses all competence in international affairs which it has not expressly and specifically waived or renounced. The protectorate, to a certain degree may be said to be possessed of an international personality.

SUZERAINTY STATE

Has only such competence as has been specifically conferred upon it by the suzerain. In other words, suzerainty is MORE DEPENDENT than a protectorate, and for exactly this reason, the relationship between the suzerainty and the suzerain is much closer than that existing between the protectorate and its protector.
Only suzerain has been accorded international status. The suzerainty is generally only vassal or tributary in character.


BELLIGERENT COMMUNITIES

When insurgency reaches serious proportions, the rebels, instead of being merely insurgents, may properly be called “belligerents” and their community a “belligerent community” provided the following conditions all concur:

The end must be POLITICAL in character;
The hostilities must be of the CHARACTER OF WAR, and must be carried on in accordance with the laws of war;
The proportions of the revolt must be such as to render the issue uncertain and to make its continuance for a considerable time possible;
The conduct of the hostilities and general government of the revolting community must be in the hands of a responsible organization.

Has been recognized and accorded a certain status in the international order, insofar does it possess an international personality – but only for a limited period.


INSURGENTS COMMUNITIES

Insurgents or rebels may be said to be organized groups who for PUBLIC POLITICAL purposes are in a STATE OF ARMED HOSTILITY towards an established government. As such, they have no rights under international law, but if the civil strife threatens to interfere with the autonomy of foreign intercourse, and has assumed such proportions as to jeopardize the sovereignty of the state over the insurgent community, certain insurgent rights may be tacitly admitted.
No insurgent rights arise, if the ends are not political and are obviously private in character.
Even if a foreign state admits the existence of insurgent rights, the parent state would still be liable for acts committed by the insurgent community within the jurisdiction of said parent state.
In case of hostile acts committed by the insurgents against foreign state, the latter may choose to punish them, or turn them over to the parent state.
A foreign state ought in general to refrain from interfering in the hostilities between the parent state and the insurgent community. Interning of the insurgents may however be allowed. At the discretion of the foreign state, it may of course grant temporary entry or asylum.
Just because an insurgent community has been given certain insurgent rights, it does not necessarily follow that the community has acquired the status of a belligerent. Neither is there an official recognition of the insurgents as a belligerent community as contra-distinguished from a mere insurgent community.


Q: Are Colonies, dependencies, and possessions considered as states?

A: No. They are part and parcel of the territory to which they may belong, and cannot therefore be a state. However, international legal orders grants them in a very restricted degree some international personality.


COLONY

Is a dependent political community, consisting of a number of citizens of the same country who have migrated therefrom to people of another country, but remain subject to the mother state.

DEPENDENCIES

Is a territory distinct from the country in which the supreme sovereign power resides, but belonging rightfully to it, and subject to the laws and regulations which the sovereign may think proper to prescribe.


Q: How does a dependency distinguish from a colony and possession?

A: Dependency is said to be distinguished from a colony in that the former is not necessarily settled by the citizens of the sovereign or mother state, and from a possession in that it is held by a title other than of mere physical conquest.


MANDATES


Were former territorial possessions of the states defeated in the First World War; they were placed under the control of the League of Nations and the so-called Mandatories. After the Second World War, many of these mandates became trust territories under the supervision of the UN, the Trusteeship Council, and the so-called Administering Authorities.
They were created to afford a chance for them to be developed economically and socially by more advanced nations.


TRUST TERRITORY


Is a qualified or quasi-international personality in the sense that it has some rights and obligations in the international order;
However, he Administering Authority exercises the power of sovereignty over them, although of course they cannot be ceded to others without the approval of the UN inasmuch as they do not form part of the territory of the Administering Authority.
The inhabitants of the trust territory do not become nationals or citizens of the Administering Authorities;
They are not generally affected by treaties concluded by the Administering Authorities. It shall be the duty of the Administering Authority to ensure that the trust territory shall play its part in the maintenance of international peace and security.
The Administering Authority may make use of volunteer forces, facilities, and assistance from the trust territory in carrying out the obligations towards the Security Council undertaken in this regard by the Administering Authority, as well as for local defense, and the maintenance of law and order within the trust territory.


PRIVATE CORPORATION

Usually fall under the domain of private international law, particularly where their rights are involved;
However, they are discussed also in public international law when in time of war, their property and other rights are impaired, or when, whether in time of peace or of war, maritime law has been infringed.


PUBLIC CORPORATION

Have delegated political powers and assume quasi-international status.
While usually restricted by the functions enumerated in their respective charters, these companies often performed acts not warranted by said charter. Their home government sanctioned their actuations, and so in time, they more or less were invested with certain powers of sovereignty; like the power to govern, and the power to enter into and conclude wars.

SCHROEDER VS. BISSEL COLLECTOR

• Under Sec. 447 of the American Tariff Act of 1922, it is unlawful for any ship to upload any part of its cargo of goods at a place other than a port of entry. An English vessel unloaded part of its cargo at a place 19 miles away from the coast of the US, whereupon it was seized by the American coast guard. It was alleged that the seizure violated the tenets of international law because it had been made beyond the territorial or maritime zone of the US.
• It was held that the seizure us valid despite the alleged violation. What is important is that a statute of the US has been violated.
• International law is law in so far as we adopt it, and like all common or statute law, it bends to the will of Congress, even if the act may contravene recognized principles of international comity.
  
  

ACT OF STATE DOCTRINE

• Is the doctrine that a state should not inquire into the legal validity of the public acts of another state done within the territory of the latter.
• “Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.

Q: Is the “Act of State Doctrine” a principle of International Law?

A: No. Failure to apply the doctrine does not constitute a breach of international obligation, but neither does international law forbid the application of the rule.


Q: What is the usual remedy of the citizen aggrieved by an act of state of a foreign country?

A: It is not for the citizen to go to the courts of his own country, but for him to exhaust the local remedies in the foreign country and failing in this, to repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy on or before an international tribunal.


THE SABBATINO CASE

BANCO NACIONAL DE CUBA VS. SABBATINO

• An American broker entered into a contract with a Cuban Corporation for the sale of Cuban Sugar.
  Because of antagonism between US Government and Cuban Government, The latter “expropriated” the properties and rights of the corporation.
• To make sure that the sugar would be shipped to the US, the broker entered into a contract with Cuban Government instrumentality, promising to make payment to the latter.
• The governmental instrumentality then assigned its rights to another Cuban governmental entity, Banco Nacional de Cuba.
• The bank subsequently instructed its New York agent to deliver the necessary documents to the broker, who in turn was supposed to turn over the payment to the New York agent.
• The agent turned over the documents to the broker, but the broker refused to give the money.
• The Bank then brought this action to recover the payment for the broker, as well as to prevent Sabbatino from making use of said purchase price.
• The first court ruled against the Cuban bank, stating that inasmuch as there was a violation of international law, the act of state doctrine could not be applied.
• CA affirmed the decision.
• On appeal to the US SC, the court held that the “act of state” doctrine can be applied for while this is not a recognized principle of international law, neither dos international law prohibits its application.

SABBATINO AMENDMENT

• Requires American Courts to decide a case on the merits if there is an alleged violation of the principles of international law in connection with expropriation or confiscation by a foreign state of private properties.
• An important exception is made in any case with the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the US , and a suggestion to this effect is filed on his behalf in that case with the court.
• Constitutional and can be given retroactive effect.