Title, Introduction to Public International Law. Author, Joaquin G. Bernas. Publisher, Rex Book Store, ISBN, , Length, An Introduction to Public International Law. Front Cover. Joaquin G. Bernas. Published & distributed by Rex Book Store, – International law – pages. Bernas, Q.G. () Introduction to Public International Law. Rex Printing Company Incorporation, Manila.
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Skip to main content. Log In Sign Up. The traditional definition of international law is that it is a body of rules and principles of action which are binding upon civilized states in their relations to one another. States are the sole actors in this definition and, in the past, public international law dealt almost exclusively with regulating the relations between states in diplomatic matters and in the conduct of war.
Today, sovereign states remain as the principal subjects of international law; but they are now joined by international organizations and even by individuals.
The expansion of the scope of international law is nothing short of revolutionary: New subject matters are being added, new subjects of international law are being recognized, non-Western states are flooding into the community of nations, political and social principles are changing, international organizations are assuming new roles.
This is being affected by various factors: Beyond the primary concern for the preservation of peace, it now covers all the interests of contemporary international and even domestic life. Is international law a law? Phblic question is sometimes asked whether international law is indeed law.
The basic challenge to international law as law is the claim that there can be no law binding sovereign states. Moreover, there exists no international legislative body. There is, of course, the General Assembly of the United Nations; but its resolutions are generally internarional binding on anybody.
An introduction to public international law
There is no international executive. The Security Council was intended to be that entity but it is often effectively hamstrung by the veto power. Neither is there a central authority that can make judgments binding on states. The International Court of Justice can bind states only when states consent to be bound. Moreover, national officials tend to find justification for whatever they do. When the chips are down, national policy or interest is often beernas over international law.
Intrrnational of international law is a real problem for several reasons. Frequently, there is no assured procedure of identifying violation. Even the powers of the UN have reference largely to lawbreaking that takes the form of an act of aggression or threat to peace. But there are many violations of international law which are not of this nature. Most of the time, all the UN can do is censure. For these reasons, it is said that what is called international law is not law because it is commonly disregarded.
These objections are based on an exaggerated notion of sovereignty as embodying an individualist regime. This, however, is not the reality. The reality is social interdependence and the predominance of the general interest. The reality is that States are bound by many rules not promulgated by themselves. Some theories about international law.
Introduction to Public International Law by Joaquin G. Bernas, S. J.
If international law is a bernaz, what is its theoretical basis or what makes it a law? In the view of John Austin, a renowned legal philosopher, 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. Neither treaties nor custom come from a command of a sovereign.
This theory, however, has generally been discredited. The interntional is that nations see international law not as commands but as principles for free and orderly interaction. Under this theory, international law derives its binding force from the consent of states. Treaties are an expression of consent.
Likewise, custom, as voluntary adherence to common practices, is seen as phblic of consent. The natural law theory posits that law is derived by reason from the nature of man International law is said to be an application of natural reason to the nature of the state-person.
Although the theory finds little support now, much of customary law and what are regarded as generally accepted principles of law are in fact an expression of what traditionally was called natural law. Some dissenters, however, see no objective basis for international law.
They see international law as a combination of politics, morality and self-interest hidden under the smokescreen of legal language. Fundamentally, there is a 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 is seen as such by states and other subjects of international law. Public and private international law. A distinction should be made between public international law, sometimes referred to only as international law and which is the subject matter of this book, and private international law, more commonly called conflict puvlic laws.
Public international law governs the relationships between and among states and also their relations with international organizations and individual persons. Private international law is really domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts.
Brief historical development of international law. From Ancient law to the League of Nations What may be called ancient international law governed exchange of diplomatic emissaries, peace treaties, etc. There is evidence of treaties concluded between Jews and Romans, Syrians and Spartans. Modem 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, is considered father of modem international law.
He authored De Jure Belli ac Pads. These were generally natural law people. With the emergence of the notion of sovereignty of states came the view of law as commands originating from a sovereign and backed up by threats of sanction if disobeyed. The following are some of the significant milestones in the development of international law: It was at this time that berbas sunt servanda arose.
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 bom. The United States did not join. Thus, internatoonal formulation of introducion new avenue for peace became the preoccupation of the victors.
Hence was founded the United Nations in 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 United Nations.
New states, carrying a legacy of bitterness against colonial powers, became members of the UN. The Western states, although they were not all completely of one mind, formed one group. Some remained satisfied with the status quo while others were more open to Third World demands and supported social and legal changes.
As to international legislation, however, they insisted on two points. First, legal provisions miust’be clear and precise. Second, any substantive rule must be accompanied by an implementation mechanism that can spot introdhction correct violations.
Another grouping consisted of the socialist states led by the Soviet Union. They also sought to convert developing nations to their ideology. The third group, the developing countries, formed the overwhelming majority.
The group 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.
Introduction to Public International Law – Joaquin G. Bernas – Google Books
This was the Cold War period introducion succeeded in maintaining peace through the balancing of the two super powers, the United States and its allies on the one hand and the Soviet Union. 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 ideology.
Many of the Baltic states were restored to statehood. Yugoslavia collapsed and fragmented. At present there is only one super internationsl, the United States, politically and ideologically leading the western states.
Introduction to Public International Law
The United States acts both as world policeman but in an obviously selective manner as dictated by its own interests and also as global mediator.
For their part, the developing countries seem to have veered away from ideological orientation and towards market orientation instead and towards fighting poverty and backwardness. As for the United Nations, it seems to have declined as an international agency for the maintenance of peace.
The task of ascertaining what the laws are in the domestic sphere is a relatively simple matter. Domestic laws are found in statute books and in collections of court decisions. It is an altogether different matter with international law. In the absence of a centralized legislative, executive and judicial structure, there is no single body able to legislate and there is no system of courts with compulsive power to decide what the law is nor is there a centralized repository of international law.
Thus, there is the problem of finding out where the law is. This problem is exacerbated by the anarchic nature of world affairs and the competing sovereignties. Sources are often classified into formal sources and material sources. Authors, however, differ in defining these concepts.
Formal sources can refer to the various processes by which rules come into existence. Thus, for instance, legislation is a formal source of law. So are treaty making and judicial decision making as well as the practice of states. Material sources, on the other hand, are not concerned with how rules come into existence but rather with publoc substance and content of the obligation. They identify what the obligations are.