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Applying PACTA SUNT SERVANDA?

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1 Applying PACTA SUNT SERVANDA? on Sun Dec 14, 2014 11:30 pm

CassYuan


Arresto Menor
I'm terribly sorry for spamming this board with my topics, but I really am in a desperate situation here. I have four sets of questions for my oral exam tomorrow in my international class and I'm really short on time in studying for everything. I still have a Nihongo final exam tomorrow morning. :\

Anyway, my question. I need to discuss the doctrine of pacta sunt servanda and how it applies on a treaty which I'm free to choose. Do any of you know a simple treaty that's applicable in the doctrine of pacta sunt servanda? The easiest one you can think of would be highly recommended. I just need to explain it to my prof with confidence and I should show mastery of the subject.


I again apologize for coming here just typing out these questions for school, I feel bad... but I'm really desperate to pass this class. :'(

Any help will be greatly appreciated... thanks in advance :'(



Last edited by CassYuan on Mon Dec 15, 2014 12:29 am; edited 1 time in total

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2 Re: Applying PACTA SUNT SERVANDA? on Sun Dec 14, 2014 11:39 pm

karl rove


Reclusion Perpetua
CassYuan: try the case of Kuroda v. Jalandoni, about the Geneva Convention and Hague Convention on the right of the states to try war criminals by military commission

The Geneva convention is a treaty which must be observed by states signatory thereto. It was argued that the Philippines is not a signatory to said convention, yet, we follow that treaty.

Why?

Because of the doctrine of incorporation (clause) in our constitution that provides among others that the Philippines adhere to the general principles of international law as part of the law of the land. And, since, the trial of war criminals is provided under the geneva convention, the Philippines adherence to it is pacta sunt servanda (meaning TREATIES SHOULD BE OBSERVED AND APPLIED IN GOOD FAITH) we adhere to the general principles of international law as expressed in the Geneva Convention

Hope this would help you.

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3 Re: Applying PACTA SUNT SERVANDA? on Sun Dec 14, 2014 11:58 pm

CassYuan


Arresto Menor
Thank you very much again for the suggestion. I'll be reading the digest of the case and the Hague/Geneva Conventions later on to further understand its application. This would greatly help me. I really appreciate the help...

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4 Re: Applying PACTA SUNT SERVANDA? on Mon Dec 15, 2014 12:15 am

CassYuan


Arresto Menor
Does jus cogens somehow apply in this case? Because it's a limit to pacta sunt servanda...

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5 Re: Applying PACTA SUNT SERVANDA? on Mon Dec 15, 2014 10:29 am

karl rove


Reclusion Perpetua
Cass Yuan: i think you have to enrol with me (joke lang pare)!

anyway, jus gogens goes hand in hand with obligation erga omnes...meaning in latin "towards all" or towards everyone". In public international law, it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy, genocide, slavery, torture, and racial discrimination. The concept was recognized in the International Court of Justice's decision in the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph 33] which states:

"… an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. [at 34] Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law . . . others are conferred by international instruments of a universal or quasi-universal character.

Now based on the above opinion by the ICJ, in the Barcelona Traction Case (I remember my good friend, Harry Roque, for that is one of his favorite case), since torture is outlawed or detested by the international community, the international protocols against torture, should be observed in good faith by the signatory and non-signatory states.

All I can say, is that in the matter of outlawing torture, jus cogens and pacta sunt servanda compliments each other, rather than a legal limitation.

Tnxs again

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6 Re: Applying PACTA SUNT SERVANDA? on Sat Dec 27, 2014 3:13 am

CassYuan


Arresto Menor
Hi again attorney! Sorry for the very late reply, hope you didn't think I'd leave without being grateful! I really really appreciate the help and I certainly learned from this. Very Happy Happy holidays and god bless to you and your family!

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