UNIT III: LESSON 7
General Principles
of International
Law
Introduction
International Law and National
Law
International law regulates relations of states and international
persons. It is derived from treaties, international customs, and
general principles of law. If conflict arises, the same is resolved
through state to state transactions.
On the other hand, national law regulates relations of
individuals among themselves orders, and or within the state. It
consists of statutory I judicial pronouncements, if there is
conflict.
How does international law
become a part of the law of the
state ?
There are TWO doctrines of adoption:
• Doctrine of Incorporation - The doctrine of incorporation generally accepted
principles of international are considered as part of a state's national laws by
reason of its membership in the family nations
• Doctrine of transformation - requires the enactment by the legislative
body of such international law principles as are sought to be part of
municipal
International Conventions and International
Customs
International conventions are international agreements concluded
between States, in written form, and governed by International Law,
embodied
either in a single instrument or in two or more related instruments and
whatever it's particular designation (Article 2 (1)(a), Vienna Convention on
Law of Treaties.
International customs, also known as customary law, consists of rules of
law derived from the consistent conduct of states, acting out of the belief
that the law required them to act that way (Aust, 2010). However, for a
custom to be deemed as an international custom, these two elements
must exist: state practice and opinio juris sive necessitates ("opinion of
law or necessity").
State practice states that there must be evidence of substantial
uniformity of practice by a substantial number of states (Aust, 2010).
Proof of state practice are as follows: administrative acts, legislation,
court decisions, historical records, and international stage activities.
Opinio juris sive necessitates states the belief that the given
practice is rendered obligatory by the existence of a rule requiring
it. Consequently, the states concerned must feel that they are
conforming to what amounts to a legal obligation.
Kinds of international customs are:
• Regional custom - is a practice among states within a
particular area of the world which can be sufficiently
well-established and accepted as law that is binding
among the state of that region and not elsewhere.
•Special custom - is a long-continued practice between
two states, accepted by them as regulating their
relations that form the basis of mutual rights and
obligations
Jus Cogens and Obligations
Erga Omnes
Jus cogens (Compelling Law) occupy another category of
international customs as these refer to norms that command
peremptory authony superseding conflicting treaties and customs
which can neither be modified, except by a norm or similar
character.
Obligations ergo omnes (towards all") refers to an obligation under
general international law that a state owes in any given case to the
international community, in view of its common values and its
concern for compliance
Treaties
A treaty is an international agreement conducted between states,
in written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments, whatever its particular designation
Basic • Pacta tertiis nec nocent nec prosunt- "A
treaty binds the parties and only the
Principles parties
• Pacta sunt servanda -"Agreements must be
Concerning kept—Every treaty in force is binding upon
Treaties the parties to it and must be performed by
them in good faith
• Rebuc sic stantibus - "Things standing
thus" — A fundamental changes of
circumstances which has occurred to those
existing at time of the conclusion of the
treaty.
Executive Agreement
and Concordat
An executive agreement is an agreement concluded by the President
based on authority granted by Congress or based on the inherent
authority granted to him/her by the Constitution.
A concordat is a treaty or agreement between the Pope and a state or
government that deals with religious matters as well as the
recognition and privileges of the Holy See in other states.
Q&A Session
Thank you for listening!
