USJR.

Public International law: Oppenheim, Brierly,Tunkin Brownlie, Higgins

Remedial law you go to rules of court, but here in Public International law is different. We will
discuss International law, according to the flow of the syllabus.
1. The first of PIL The concept and nature of International Law.
2. 2nd part International law and the Community.
3. 3rd part the relation between International Law and municipal Law
4. 4th Part Sources of Law.
By the way class, with regard to Gloria leaving the Report.. TRO is executory, Motion of
Reconsideration does not stay the TRO, TRO is an extraordinary relief, it does not deal with
the merits of the case, the necessity form of TRO to prevents irreparable damage. The right
to travel is a constitutional right. De Lima said the TRO is effective if you are talking about
this constitutional right. . . But she is invoking for political considerations if Gloria and her
husband leaves, its obvious that they are beyond our Jurisdiction.
So now lets go to our discussion.
What is International law according to Oppenheim:
I know the words are extra-ordinary : but we have no other choice to study PIL except with
what the experts have to say..
Now according to Oppenheim.
International Law :
Is the body of customary and treaty rules which are considered legally binding between
states in their intercourse with one another. 1
Oppenheim distinguishes International law from universal international law and particular
international law.
What is :
Universal International law? Such part of these rules s is binding upon all States
without exception, as, for instance, the law connected with the right of legation and
treaties.
Particular international law? ? Which is binding on two or a few States only.
General International law ? Body of rules as are binding upon great many States,
including the leading States. 2
Which you think is plausible among the three? Universal, General, or Particular?
1

Oppenheim, International Law, Vol. 1, pages 4- 5

Oppenheim, International Law, Vol. 1, page 5

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USJR. Public International law: Oppenheim, Brierly,Tunkin Brownlie, Higgins

Could we have Universal International law? Yeah, I think its too ideal.
Particular ? Yes , when you enter with another contract , a treaty with another State, you
refer to the particular international on the partner
General? Binding upon many states upon great leading states, yes leading states this was
written 1958 , what do you mean by leading states? The victors of World war 2.
Guys remember this :one of the basic postulates of international law, is that each state is
deemed equal , the Philippines example equal with China At least in the eyes of International
Law.
Now according to Austin and his followers :
They defined law as a body of rules for human conduct set and enforced by a sovereign
political authority. 3 There is a set of rules and these set of rules is enforced by a sovereign
political authority. Question : is this true in international law?
Answer: No, because there is no sovereign political authority, because each state is
sovereign in itself.
Now According to Oppenheim its not accurate, that international law is a body rules that
would regulate the conduct of states and to be enforced by SPA. He suggested it is better to
say that these rules of conduct be enforced by EP an abstract notion of External Power
so there is still a need for an entity to enforced the rules.
But According to him for the existence of the law it is not required there must be a law
giving authority or a court of justice to enforce such law, what is essential is the consent of
the community itself.
Its like this guys, before international law, mankind had municipal laws, so mankind was
accustomed to municipal laws set up by a sovereign political authority and there a court of
justice that would settle those controversies, now when mankind began to interact through
the states, by that nagging complicated , instead of individuals we have states, ang mind
the same dapat may sovereign political authority, and a court of justice, but the problem
comes, since all states are sovereign political authorities in themselves, so who would
enforced, so Oppenheims suggestion is external power , the basis of this rule? Its
community itself. We dont need a sovereign political authority , we only need the
consent of the community .
That is why he said, what are the Three essential conditions of law? 4
There must, first be a Community.
There must, secondly, be a body of rules for human conduct within that community.
3

Oppenheim, International Law, Vol. 1, page 7

Oppenheim, International Law, Vol. 1, page 10

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USJR. Public International law: Oppenheim, Brierly,Tunkin Brownlie, Higgins

And there must, thirdly be a common consent of that community that these rules
shall be enforced by external power.
These are the requirements for law to be considered Law. So there is no more need for
sovereign political power or courts of justice. But then, we still need this so called External
Power.
Why , what is the use of External power guys, EP? For the enforcement of rules.
Oppenheim knew that its impossible for states to recognize one sovereign political
authority, thats clear. But he also knew that international law to be law if there is no entity
that would enforce this set of conduct, that is why he used this term EP External Power.
Question: In what way does External power come about?
1. Self help: and intervention on the part of other states
2. war.
3. Charter
Self help, and intervention on the part of other States which sympathise with the
wronged one, are the means by which the rules of the Law of Nations can be and actually
are enforced.5 What is self help? If a state feels aggrieved the state will do something to
protect itself through the use of force. What is intervention? When something or a foreign
element comes to your rescue. For Oppenheim this is could be a manifestation of
External power.
Example they set a rule that must be followed by states, now state B wronged State A.
had it been in the context of traditional view of law, state A would go to the political
sovereign authority and ask for help, but according to Oppenheim that is not needed
anymore in international law, bec state A itself could do something, State could take the
role of sovereign political authority, or intervention, state C, State D, will go to State As
rescue.
War: or the use of force. you dont need a sovereign political authority, If a state is
wronged that state could use force
Charter: which provides for a system of sanctions for repressing the violation of its
principal obligation.
So does a charter takes the place of a sovereign political authority ? Accordint to
Oppenheim that is only one of the manifestation of this external power which takes the
place of sovereign political authority.
What is the basis of PIL? Common consent.

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USJR. Public International law: Oppenheim, Brierly,Tunkin Brownlie, Higgins

Common consent, can therefore only mean the express or tacit consent of such an
overwhelming majority of the members that those who dissent are of no importance as
compared with the community viewed as an entity in contradistinction to the wills of its
single members.6

Common consent as the Basis of

International Law - by Oppenheim
In international law , common consent is manifested through customs, virtual usage of
certain rules, and finally development of systematized body of rules , sauna customs lang,
what do you mean customary meaning being practiced or na-andan, it would graduate to
virtual usage, state b, follows, state c follows, then other states, and then mu graduate
finally into a systematized body of rules, so dili ra custom, but gi suwat into writing this will
be our set of rules.

*Brierly*
Brierly, The Basis of Obligation in International Law ,
His point is this what are the ways States come into obligation in international law aside
giving its consent to be bound by it.
Example there is an established international law on the matter
Unsa pinaka latest na country sa world? South Sudan, latest entry to the third world
countries, class why are we called 3rd world countries, not 2nd world? Why it was the effect of
the cold war . USSR and her allies competed against US and their allies. There were
competing for what place? The first world stature, bisan ma pildi automatic ma himo 2 nd
world. Pero kita wala ta labot, away ayaw mo dha basta kami 3 rd world lang ghapun..
Now. what are the ways States come into obligation in international law aside giving its
consent to be bound by it.
A new state become subject to international law as a matter of course without their consent,
your application to become a state . Which group of people is now applying for statehood?
Palestine. They went to the UN asking for declaration of statehood, But United States said
not so fast bec US is a patron of which country? Israel.. Class I dont like to be an Israel.
There are billions of people who wants to kill you in your own neighborhood, Israel most
secured place on earth, gamay lang security breach, daghan bombers, missiles on earth..
they cant afford to lost gaza strip because it will not give enough parameters on its
defenses.
Going back when you apply for statehood: a state becomes bound or to follow international
law
6

Oppenheim, International Law, Vol. 1, page 17

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USJR. Public International law: Oppenheim, Brierly,Tunkin Brownlie, Higgins

Next Hegelian doctrine of self limitation of the state: state may create law for itself both in
internal and external affairs..
The most highly systematized form of the consensual theory is the Hegelian doctrine of self
limitation of the state as developed by more modern authors, in particular by Jellinek.
According to Jellinek the peculiar faculty of a stae is self-determination , and this faculty
involves another, that of self-limitation, whereby a state may create law for itself both in
internal and external affairs.7 3rd when states feel the obligation to follow the rules of
international law.
Again: What are the ways States come into obligation in international law aside giving its
consent to be bound by it.
1. A state becomes part of International law as a matter of course, there is nothing a state
can do but be bound by international law
2. state may create law for itself both in internal and external affairs in its conduct with other
states
3. when states feel the obligation to follow the rules of international law.

*Tunkin, International Law in the International System* p.

Accordint to Tunkin : The system of international law is a reality in itself

International law as a system of legal norms and that international law

should be taken as a unit, each element of which is interrelated with other
parts of the unit. by Tunkin.
, before there was this traditional division of international law into law peace 50% and law of
war 50% . but why do we have armed conflict, because that is part of human nature, but this
is the exception to law of co-existence and law of cooperation. Before 50% law of war, and
50% law of peace.But now we only have law co-existence and law of co-operation so 100%
law of peace. So war and armed conflicts are antithetical to co-existence and cooperation
International Law in the International System page 80 :
Xxx xxThe question arises to what has become of the principal division of international law
into two parts: The law of peace and the law of war, which was characteristic of the previous
historical types of international law. This division was proper to international law when
recourse to war by States in their relations was permitted. According to this international law
States had a choice between peace and war. The only state of relations among States that
7

Brierly, The Basis of Obligation in International Law ,page 13.

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USJR. Public International law: Oppenheim, Brierly,Tunkin Brownlie, Higgins

corresponds to international law is the state of peace and co-operation. There is, therefore
no division in the present-day international law into the law of peace and the law of war.
However to prohibit the recourse to war does not mean to abolish wars.Wars still occur an
the rules of international law regarding the conduct of hostilities and related questions are
necessary. There is no adequate denomination for this small part of international law. It is
often called the law of armed conflicts.
Professor W. Friedmann has suggested a new division of contemporary international law into
two principal parts: the law of co-existence and the law of co-operation. In his essays The
Changing Structure of International Law Friedman formulated the principal thesis of his
views in the following terms:
In International law it is today of both theoretical and practical importance to distinguish
between the international law of co-existence, governing essentially diplomatic interstate
relations, and the international law of co-operation, expressed in the growing structure of
international organization and the pursuit of common human interest.8

According to Tunkin guys there are two levels: Universal and regional, also it could be
general international law and particular international law.
What do you mean by general international law
It results to coordination of the will of all or almost all states
What is JPEPA is that particular or general IL? So this is Particular IL
What about prohibition of the use of force? General IL, that is obvious
Particular norms, solved particular problems, because general norms are not sufficient to
deal with particular relations between states. like JPEPA ,
But though provisions of WTO is general international law.
**Brownlie, The Reality and Efficacy of International Law**,

With all its faults , international law is the best tool available for dealing with the affairs of
States.9
It is imperfect, because there is no international political sovereign, yes imperfect,but it is
existing. Why imperfect?T he consequence of relative inefficiency of domestic law in
8

Tunkin, International Law in the International System page 80

Brownlie, The Reality and Efficacy of International Law, page 8

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USJR. Public International law: Oppenheim, Brierly,Tunkin Brownlie, Higgins

enforcing treaty standards10, like use of force prohibited in UN charter, signed by most
States.
On the Evidence the law provides a more practical basis for approaching international
problems and the settlement of disputes than, for example, natural law in its various forms,
Islamic jurisprudence, the principles of socialist internationalism, or so called equity 11\
When the law is seen to be ineffective, the cause is not the law but the absence of
organization, political will, sufficient personnel or funding, and so forth. Law whether
national or international, is not a source of alibis for politicians and administrators

**Higgins, Problems and Process: International Law and How We Used It (1994)**
Higgins, for me this is more timely relevant. So what is international law for Higgins,
remember the question in the Bar, who is the current president of the ICJ, do you remember
that infamous question?The answer is , she is the answer Rosalyn Higgins, 2006 to 2009 she
served as president of The ICJ.
International law is not a set of rules, but a process, the entire decision making process.
International law is not rules. It is a normative system12.
All organized groups and structures require a system of normative conduct, ..
International law as a normative system, harnessed to the achievement of common values.

International law is not rules. It is a

normative system.by Higgins
(former ICJ President).
Higgins, Problems and Process: International Law and How We Used It (1994):
The view that International law is a body of rules that fails to restrain states falls short on
several counts.
In the first place, it assumes that law is indeed rules. But the specialized social process to
which the word law, but not the only part. I remain committed to the analysis of

10

Brownlie, The Reality and Efficacy of International Law, page 3

11

Brownlie, The Reality and Efficacy of International Law, page 8

12

Higgins, Problems and Process: International Law and How We Used It (1994),
page 1

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USJR. Public International law: Oppenheim, Brierly,Tunkin Brownlie, Higgins

international law as process rather than rules and to the view I expressed many years ago
,when I said:
When.. decisions are made by authorized persons or organs, in appropriate forums, within
the framework of certain established practices and norms, then what occurs is legal decision
making. In other words, international law is a continuing process of authoritative decisions.
This view rejects the notion of law merely as the impartial application of rules.
International law is the entire decision-making process, and not just the reference to the
trend of past decisions which are termed rules.

Thus rules are just accumulated past decisions. And, if

international law was just rules, then international law
would indeed by unable to contribute to, and cope with, a
changing political world.
To rely merely on accumulated past decisions (rules) when the
context in which they were articulated has changed- and indeed
when the context in which they were articulated is unclearis
to ensure that international law will not be able to contribute to
todays problems and , further, that it will be disobeyed for
that
reason.
You
look
at Article 38 of ICJ the desposition of cases by ICJ only applies to parties of the case,
there is no precedent, no res judicata, it is a process, you cannot go to the International
Court of Justice and say, Your honor you must stop this proceedings because the case at
hand has already been decided in case blab laand pray that the court decide in the same
manner

Article 38
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.

But you can cite cases .. it was already asked during does res judicata apply in international
law, does precedence of jurisprudence apply in international law? No it doesnt apply. So
Higgins, is a good reading, see tunkin, brierly dili kaau friendly, unlike Higgins klaro, these

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USJR. Public International law: Oppenheim, Brierly,Tunkin Brownlie, Higgins

experts in international law lived in the library that is why you can notice the language.. So
class pag basa mo, you are not only reading for this subject but also for the bar.

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