The Philippines

2019 ◽  
pp. 405-432
Author(s):  
Romel Regalado Bagares
Keyword(s):  
International Law ◽  
Direct Effect ◽  
The Philippines ◽  
The State ◽  
State Of Exception ◽  
Paradoxical Phenomenon ◽  
Legal Obligations ◽  
Entry Points ◽  
Executive Agreements ◽  
Rule Making

This chapter assesses international law in the Philippines. The primary entry points of international law in Philippine jurisdiction are the Incorporation Clause and the Treaty Clause of the 1987 Charter. The chapter considers the paradoxical phenomenon of the supposedly dualist device of treaties opening a quasi-monist door to international legal obligations in the form of executive agreements that do not require the concurrence of the Senate but become binding on the Philippines by Executive imprimatur. Moreover, as quasi-monist devices, executive agreements function both as a sword, giving direct effect to international law—especially in the protection of rights—and as a shield, raising barriers to public or international accountability according to political considerations. The four other entry points for international law in Philippine practice include the direct effect by the Supreme Court’s rule-making powers, constitutionalization, statutory application, and international law in the State of Exception.

Between the utopian imaginaries of literature and international law: The question of the insurgent child in international legal discourse and Kris Montañez’s Youth

2021 ◽  
pp. 1-20
Author(s):  
José Duke S. Bagulaya
Keyword(s):  
Civil War ◽  
International Law ◽  
Legal Discourse ◽  
The State ◽  
The Other ◽  
State Of Exception ◽  
Utopian Vision ◽  
The World ◽  
Realistic Representation ◽  
The One

Abstract This article argues that international law and the literature of civil war, specifically the narratives from the Philippine communist insurgency, present two visions of the child. On the one hand, international law constructs a child that is individual and vulnerable, a victim of violence trapped between the contending parties. Hence, the child is a person who needs to be insulated from the brutality of the civil war. On the other hand, the article reads Filipino writer Kris Montañez’s stories as revolutionary tales that present a rational child, a literary resolution of the dilemmas of a minor’s participation in the world’s longest-running communist insurgency. Indeed, the short narratives collected in Kabanbanuagan (Youth) reveal a tension between a minor’s right to resist in the context of the people’s war and the juridical right to be insulated from the violence. As their youthful bodies are thrown into the world of the state of exception, violence forces children to make the choice of active participation in the hostilities by symbolically and literally assuming the roles played by their elders in the narrative. The article concludes that while this narrative resolution appears to offer a realistic representation and closure, what it proffers is actually a utopian vision that is in tension with international law’s own utopian vision of children. Thus, international law and the stories of youth in Kabanbanuagan provide a powerful critique of each other’s utopian visions.

Sovereign Exception, Destructive Exception

2020 ◽  
pp. 87-95
Author(s):  
Willy Thayer
Keyword(s):  
Philosophy Of History ◽  
The State ◽  
State Of Exception ◽  
State Of Emergency ◽  
Sovereign State ◽  
Rule Making

This chapter discusses Walter Benjamin's “Theses on the Philosophy of History,” which refers to a regime of sovereign representation where the state of emergency is the rule. It explains the paradigm of sovereignty that is constituted teleologically from exception, as the foundation and conservation of representational regimes. For Benjamin, the state of emergency is equivalent to “progress as a historical norm.” The chapter also looks at the commissary-sovereign state of exception that is functional to a policing critique and a politics whose prerogative is to put the regimes of representation into crisis. It analyzes a prerogative that subsumes the destructive character of the exception within a dialectical concentration of the rule, making the spectrality of destruction a function of the system of representation.

Other types of secondary legislation immediately place legal obligations directly into the legal system of all Member States. These are binding in their entirety and said to be directly applicable. Still other types place legal obligations directly upon certain named States, individuals and organisations. (4) The treaties, regulations and directives enacted by the Union do not directly state that they give individuals rights that they can enforce in their national courts. These legal rules are addressed in the first place to the Union and the Member State. Yet under the founding treaties Member States are expected to enforce the rights, liabilities and powers that are a consequence of membership in national courts. The ECJ has developed the concept of direct effect which describes EC primary or secondary law that give individuals rights that are enforceable in their national courts. Set criteria have to be present. Direct effect is easier to prove in relation to regulations than it is in relation to articles and directives. The criteria demand that: • the rule does not require any action from the State (and directives do); and • that the right to be enforced is clear and precise and can be activated without recourse to the State (which is not the automatic case in relation to articles in a treaty concluded at State level or a directive issued to the State demanding certain outcomes within a timescale). However, articles and directives considered on a case by case basis by the European and national courts have been held to give individuals rights. The case of Van Gend en Loos discussed later in this chapter deals with direct applicability and direct effect of articles. (5) A major difficulty is caused by the lack of uniformity of terms in relation to ‘directly applicable’ and ‘direct effect’. ‘Directly applicable’ is the phrase used in Article 249 (formerly 189) of the EC Treaty to refer to the process by which Community law of certain types is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. ‘Direct effect’, which is not a phrase occurring in any of the treaties, is the phrase consistently used in the ECJ in two senses to refer to: • the process by which individuals acquire rights they can enforce in national courts (against other individuals—horizontal direct effect, and against the State itself—vertical direct effect); and • the process by which EC law is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. This is confusing, especially as some Community law that is created by Article 249 (formerly 177) of the EC Treaty is not said in the Treaty to be directly applicable in the sense of immediately and automatically becoming part of the legal system of Member States. Yet the ECJ has held that such law can, if certain criteria are present, have direct effect. In fact, they have gone one step further and constructed the concept of indirect effect. It is indirect precisely because the law is not directly applicable but somehow an individual can enforce it in a national court.

2012 ◽  
pp. 157-157
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
National Court ◽  
State Level ◽  
The State ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Legal Obligations ◽  
The Right

Conclusions

2020 ◽  
Author(s):  
Butler William E
Keyword(s):  
International Law ◽  
Direct Effect ◽  
Russian Federation ◽  
Good Faith ◽  
Legal Norms ◽  
Legal Obligations ◽  
Domestic Legislation ◽  
The Russian Federation ◽  
Russian Law ◽  
Domestic Law

This concluding chapter reviews the major developments of the Russian treaty. It argues that the legal system of the Russian Federation contains two different kinds of law-international law and domestic law. Here, two distinctions are drawn with respect to international-legal norms: those having direct effect and not requiring domestic legislation in order to implement them, and those not having direct effect precisely because they do require implementing legislation. Although international law requires States acting in good faith to implement international legal obligations, in practice often that implementation never happens or occurs with great delay. Although not without controversy, the better position seems to be that generally-recognized principles and norms of international law enjoy priority over norms of Russian law which provide otherwise.

scholarly journals The Blizzard of the World: COVID-19 and the Last Say of the State of Exception

2021 ◽  
Vol 96 ◽  
pp. 17-32
Author(s):  
Przemysław Tacik
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Inner Core ◽  
Civil Liberties ◽  
Legal Framework ◽  
International Community ◽  
The State ◽  
State Of Exception ◽  
The Rule Of Law ◽  
The World

The paper aims to grasp the COVID-19 pandemic as a socio-political catastrophe in the Benjaminian sense. As argued in the article, the scope and nature of the COVID-19 crisis eludes us due to our closeness to its inner core. What is obfuscated in this moment is the politico-legal framework on which the international community is based, where sovereignty and turbocapitalism join their forces to produce biopolitical devices. The paper looks into uses of the state of exception in particular countries, concluding that the rule of law in the pandemic was generally put on the back burner even by the countries that officially praise it. Sovereignty clearly returned to the stage, undermining parliamentarism and civil liberties in the sake of necessity. International law remained incapable of addressing this return, let alone of enforcing responsibility of China for infringing WHO rules. As a conclusion the paper argues that COVID-19 opened new-old paths of governing the living that will play a planetary role in the future fights for dominance and imposing a new face of capitalism.

BERLAKU DAN KEABSAHAN PERJANJIAN INTERNASIONAL DALAM PANDANGAN HUKUM INTERNASIONAL

2019 ◽  
Vol 1 (1) ◽  
pp. 95-103
Author(s):  
Komang Sukaniasa
Keyword(s):  
International Law ◽  
International Agreements ◽  
The State ◽  
International Agreement ◽  
International Treaties ◽  
International Treaty ◽  
Binding Force ◽  
International Rights ◽  
Legal Consequences ◽  
Made In

International agreements are agreements between international subjects that give rise to binding obligations in international rights, which can be bilateral or multilateral. Based on these opinions, an understanding can be taken that international treaties are agreements or agreements entered into by two or more countries as subjects of international law that aim to cause certain legal consequences. International agreements, whether ratified or through approval or acceptance or accession, or other methods that are permitted, have the same binding force as ratified international treaties established in the Ratification Law of International Treaties. Once again, it is equally valid and binding on the state. Therefore, the authors consider that the position of international treaties are not made in the form of the Ratification Act of the International Agreement but are binding and apply to Indonesia. Then Damos Dumoli Agusman argues that ratification originates from the conception of international treaty law which is interpreted as an act of confirmation from a country of the legal acts of its envoys or representatives who have signed an agreement as a sign of agreement to be bound by the agreement.

The Scope and Content of Section 75(1)(a) of the Zimbabwean Constitution: An International Law Approach

2020 ◽  
Vol 53 (2) ◽  
Author(s):  
Chiedza Simbo
Keyword(s):  
International Law ◽  
Education System ◽  
Basic Education ◽  
The State ◽  
Education Act ◽  
The Government ◽  
The Right ◽  
Basic Education System

Despite the recent enactment of the Zimbabwean Constitution which provides for the right to basic education, complaints, reminiscent of a failed basic education system, have marred the education system in Zimbabwe. Notwithstanding glaring violations of the right to basic education by the government, no person has taken the government to court for failure to comply with its section 75(1)(a) constitutional obligations, and neither has the government conceded any failures or wrongdoings. Two ultimate questions arise: Does the state know what compliance with section 75(1)(a) entails? And do the citizens know the scope and content of their rights as provided for by section 75(1)(a) of the Constitution of Zimbabwe? Whilst it is progressive that the Education Act of Zimbabwe as amended in 2020 has addressed some aspects relating to section 75(1)(a) of the Constitution, it has still not provided an international law compliant scope and content of the right to basic education neither have any clarifications been provided by the courts. Using an international law approach, this article suggests what the scope and content of section 75(1)(a) might be.

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