2. Lecture on Sources - PIL 2012-06-30

8/22/2019 2. Lecture on Sources - PIL 2012-06-30

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Sources

Key question: How are rules of international lawcreated?

Concept: fundamental to any legal system Philippine legal system

- Constitution: act of sovereign Filipino people

- statutes: act of Legislative Department

- executive issuances: act of Executive Department- local legislation: act of LGU

- *judicial decisions: act of Judicial Department


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Constitution: Art. X (Local Government) Section 8. The term of office of

elective local officials, except barangay officials, which shall be determined

by law, shall be three years and no such official shall serve for more than

three consecutive terms. Voluntary renunciation of the office for any length of

time shall not be considered as an interruption in the continuity of his service

for the full term for which he was elected.

Statute: Local Government Code, Sec. 43(b) No local elective official shall

serve for more than three (3) consecutive terms in the same position.

Voluntary renunciation of the office for any length of time shall not beconsidered as an interruption in the continuity of service for the full term for

which the elective official concerned was elected.

Executive Issuance:

Judicial Decision: Aldovino v Comelec (2009): Preventive suspension, by its

nature, does not involve an effective interruption of a term and should

therefore not be a reason to avoid the three-term limitation.


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Q. How created? A. Through the accepted processes (called formal

sources).

Three processes (or formal sources)

- process to create treaty rules

- process which results in customary rules

- process to derive general principles of law


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Article 38, Statute of the International Court of Justice (ICJ)

1. The Court, whose function is to decide in accordance with international

law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing

rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as

law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the

teachings of the most highly qualified publicists of the various

nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a

case ex aequo et bono, if the parties agree thereto.


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Restatement of US Foreign Relations Law

Section 102

(1) A rule of international law is one that has been accepted as such by

the international community of states

(a) in the form of customary law;

(b) by international agreement; or

(c) by derivation from general principles common to the major legal

systems of the world.


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Restatement of US Foreign Relations Law

Section 102

(2) Customary international law results from a general and consistent

practice of states followed by them from a sense of legal obligation.

(3) International agreements create law for the states parties thereto and

may lead to the creation of customary international law when such

agreements are intended for adherence by states generally and are

in fact widely accepted.

(4) General principles common to the major legal systems, even if not

incorporated or reflected in customary law or international

agreement, may be invoked as supplementary rules of international

law where appropriate.


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Formal source is different from material source

Material source: evidence ofexistence and content

- principal means

o treaty: text of international agreement

o custom: state practice

- subsidiary means (Article 38(1), ICJ Statute)

o custom: judicial decisions

o custom: teachings of highly qualified publicists


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Process 1: creating treaty rules

- express agreement

- international conventions, whether general or particular, establishing

rules expressly recognized by the contesting states (ICJ Statute)

- one document: treaty (usually bilateral), convention (multilateral)

- several documents: exchange of notes, record of discussions


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Process 2: resulting in customary rules- implied agreement

- international custom, as evidence of a general practice accepted as

law (ICJ Statute)

- Customary international law results from a general and consistentpractice of states followed by them from a sense of legal obligation

(Restatement)

- element 1: state practice (general and consistent, not

necessarily universal and uniform)- element 2: opin io jur is siv e necesitatis(belief that it is required)


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Process resulting in customary rules- a legal rule creates a legal relationship

- legal relationship between right holder and obligation holder

- treaty rules: obligations inter se

- obligations owed to another- customary rules: obligations erga omnes

- obligations owed to all

- Barcelona Traction Case


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Process 3: deriving general principles of law-the general principles of law recognized by civilized nations

(ICJ Statute)

- common to major legal systems of the world (European law,

Asian law, Judeo-Christian law, Islamic law)

- e.g., obligation to repair a wrong, no abuse of right, estoppel,

presumption of good faith


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ICJ: concept of ex aequo et bono - Latin: according to the right and good

- This provision shall not prejudice the power of the Court to

decide a case ex aequo et bono, if the parties agree thereto.

(ICJ Statute)


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Is there a hierarchy of rules?

- Yes.

- primary: treaty and custom

- supplementary: general principles

- primary sources (treaty and custom)- general rule: equal (Nicaragua v. USA)

-exception: jus cogens


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- to determine which is superior between treaty and custom:

- type- terms

- timing (Nicaragua v. USA)

-jus cogens: peremptory norm of general international lawfrom 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, VCLT)

2. Lecture on Sources - PIL 2012-06-30

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