Вы находитесь на странице: 1из 50

PUBLIC INTERNATIONAL LAW

MIDTERMS COMPILATION (2013-2014)


A.

Introduction

Meaning and Nature of International Law


International law, as used in this Restatement, consists of rules and principles of general application dealing with the conduct of
states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural
or juridical. (Sec 101 Restatement [third] of the Law by the American Law Institute of Foreign Relations Law of the United States)
Characteristics of International Law
International Law as a binding law
The scope of International Law
Public International Law vs Private International Law
Entities that create the International Law

PIL is a horizontal legal system (cf: billiard ball theory vs. transnational law)
One important characteristic of PIL is that that kind of legal system is Horizontal.
First, what do we mean by vertical legal system? It means you have a higher law, you have an inferior law. You have
hierarchy of authority. You also have hierarchy of institutions. You have a supreme institution, which enacts laws and
commands obedience. This is typical of a domestic legal system. Thus, under our jurisdiction, if the statute violates the
constitution, the statute is null and void.
But we dont see this kind of system in public international law. Some authors even call it the Billiard Ball Theory. In
billiards, you hit one ball with another ball without affecting the inside or the interior of the ball. It only affects the outside of
the ball.
International Law therefore deals with States as a whole and not dealing with what is inside that state. It does not deal
with the domestic law of that state.
However, recent development shows that in some instances, international law problems are solved by looking at domestic
legal systems. And when we study later on the Sources of Public International Law, we have one source called General
Principles of Law. And where do we get General Principles of Law as a source of PIL?
They are usually found in decisions of Local Courts. That is why, on the controversial issue for example of the validity of
Transnational Abduction of Criminals, (as invented by the US. They even killed Bin Laden in a foreign soil) there may
perhaps be a situation where an International Legal problem is solved by the application of a domestic legal system.
International law will sometimes look at the inside of the billiard ball in order to apply it into international controversy. Thus,
some authors suggest that the definition of international law should be changed. There are some also who resist the idea
of using the term international law because international law, whether it is a law or not is still debatable even up to the
present, because of the difficulty of enforcing it etc. etc. Some authors suggest why not call it transnational law.

PIL lacks a supreme authority, except to the extent that states may have subjected themselves to certain compulsory processes
and consequences under treaties and conventions.
Self-Help, unlike in domestic sphere applying domestic law, is normally the means by which state enforce their rights: e.g.
retorsion (a lawful act designed to injure the wrongdoing of another state), reprisal (act that is normally illegal but rendered legal by
a prior illegal act committed by another state).

For example, let me go back to espousal of claims. Reparations of damages when a foreigner gets injured in a foreign soil. The process is for
the state to bring the claim to the international tribunal. But espousal of claims has requirements before it can be done. Reparations for
damage requires:
1. That the victim must be a national of the espousing state. [a state cannot espouse a claim if the victim is not a national of that state. The
term national has a different definition in PIL. Mere citizenship is not sufficient. There is a requirement of Effective Nationality]
2. Prior exhaustion of administrative remedies. [You cannot go directly and espouse a claim in the international level if it can be shown that
you have available remedies in the local or domestic level. Here you have to look into the law of the offending state.]
International law will sometimes look at the inside of the billiard ball in order to apply it into international controversy. Thus, some authors
suggest that the definition of international law should be changed. There are some also who resist the idea of using the term international law
because international law, whether it is a law or not is still debatable even up to the present, because of the difficulty of enforcing it etc. etc.
Some authors suggest why not call it transnational law.
This brings me to my next question: Have you ever heard of Private International Law or the so called Conflict of Laws? How do we
distinguish this from Public International Law?
Private International Law deals with individuals, private corporation when there is a foreign element or when it crosses a border. Example, A
German corporation and an Australian corporation entered into a joint venture agreement in the Philippines. The contract was prepared in the
US, and perfected, consummated in the Philippines. This is a typical problem of conflict of laws. This is how we distinguish private
international law from public international law.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 1

And we should also distinguish it from Trans-National Law where Public International Law still makes use of domestic laws to solve a public
international law problem, as opposed to the Billiard Ball Theory in public international law where PIL is not supposed to be dealing with
internal or domestic legal system.
[the class stares blankly at Atty Largo]Why is that your reaction class?
The next time we meet, you should be able to answer the following questions:
Some questions during the Oral recit:
Is PIL a law?
Is PIL a binding law?
For as long as it is part of PIL, then it is binding to all states?
Class, in a particular legal system, like the Philippines for example, when we talk about domestic legal systems, and I believe this is true also
in most jurisdictions, especially the democratic ones, we subscribe to the majority rule. We are governed by the majority rule. Even if some
segments of the society will not agree on the RH bill, we have no choice but to abide when it becomes a law. We have to abide by the voice of
the majority.
Is this also true in PIL? In what sense?
If for example there are 50 states agreeing on a particular principle in a convention, non-member states to the convention are also bound?
Is there a majority rule in PIL?
So here, we will have to go back to the definition of Public International Law. You cannot therefore conclude right away that the moment it is
considered part of PIL, it becomes binding upon all states.
Or maybe you should ask first the question: Sir, what kind of public international law sir? Because under Article 38 Par. 1 of the Statute of the
ICJ, there are various sources of PIL that may be used by the ICJ in deciding contentious cases. So that if you are talking of a treaty or
convention, then the treaty or any provision in the constitution is public international law in so far as the member or contracting states are
concerned.
So that gives you an idea that it doesnt necessarily follow that majority rule applies in PIL. Did you remember the Anglo Fisheries Case (UK
vs Norway), what was this all about?
UK vs Norway:
-Didnt the UK attempt to impose upon Norway a particular principle in the delimitation of its maritime authority?
-What was the 10-mile rule that UK tried to impose upon Norway?
-Was Norway considered bound to observe the principle that the UK wanted to be implement in the controversy?
-Didnt the ICJ mentioned of the fact that it cannot be applied to Norway because this principle had been consistently rejected by Norway?
Therefore we have this principle called the Persistent Objector Principle. The other term for this is Persistent Dissenter.
Anyway, I am just testing whether PIL is really a law. At least now, we learned that in so far as a particular international norm is observed and
considered binding by states then they may be considered as law. But to say that it is law is not to say that it is applicable and binding on all
states. Not necessarily. It depends on what kind of norm or PIL that we are talking about.
Can you think of a particular norm or PIL that perhaps may be binding on all states?
You must have encountered in your readings the prohibition against torture, slavery, genocide. How do we call them in PIL? This we call the
Jus Cogens.
So going back, is PIL a Law? It is a law between states that are compelled to obey it by reason of being a party to a treaty or convention; or
because the norm or the PIL partakes the nature of a Jus Cogens norm that had been treated by all civilized states as non-derogable.
And so this brings me to the next question: Why do sovereign states obey international law? Is this not contradictory because when you are
sovereign, you should not be subject to any higher authority?
One theory offers: States obey PIL because probably they will be benefited by the practice of obeying it. Or some states obey because there
might be perhaps adverse consequences to disobedience, and so it is the interest of that state to obey because of fear of adverse
consequences to disobedience. For stronger states, maybe their interest is perhaps expansion of possible peaceful agreements to be able to
enter into more commercial treaties and agreements. If you are known to be a disobedient state, it may be hard for you to enter into such kind
of agreements. That is self-interest that we are talking about. These are based on human behavior. Why do people obey laws? Because we
are governed by natural law. We know what is right and wrong. We know the consequences of our actions. This theory on why States obey
public international law can somehow be likened to human behavior.
How is international law formed and enforced?
Is formed by agreement of states? If so, are we saying PIL is a positive law? (this is a highly controversial question in international law)
Public International Law may be enacted or by agreement by a group of states. It may be considered a positive law by the contracting parties.
Thats correct! How else is PIL formed other than enactment?
PIL may come into existence as a result of a practice of states coupled with the belief that it is practiced by states because the norm or
conduct is binding upon states.
So it may be by convention, by treaties, by practice.
Now, the other concern is the enforcement. If it is really a law at least for those who are bound to obey this law, how is it enforced?
Retorsion and Reprisal. How do you distinguish them?
Retorsion is a lawful act which is designed to injure the wrongdoing statefor example cutting off economic aid (this is lawful because there is
no legal obligation to provide economic aid, apart from under special treaty provisions).
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 2

Reprisals are acts which would normally be illegal but which are rendered legal by a prior illegal act committed by the other state. For
instance, if state A expropriates property belonging to state Bs citizens without compensation, State B can retaliate by doing the same to the
property of State As citizens. This must be proportional though.
We call this in PIL as Self-Help measures. You will notice that there is no international police or a sheriff that implements or executes the
judgment. There is no writ of execution that will be issued by the international tribunal.
So that is one problem in PIL, that is how to enforce the norms effectively. There is no problem if states obey them. The problem is if they
dont.
Other than self-help measures, what else? What are other ways of enforcing?
Are you familiar with WTO? What is this organization all about? Member states of the WTO are not supposed to distinguish between foreign
goods and local goods to the extent that it will restrict the trade of these goods or hamper trade transactions between member states. The very
idea of WTO is trade liberalization. Now, what happens if a member state of the WTO passes a law that effectively prejudices or unfairly treats
foreign products in favor of locally produced products and in violation of the WTO?
It is possible that states have entered into a conventional way or mode of enforcing certain international norms. Under the WTO, there are
procedures by which a particular norm may be enforced as against a member state. So in this case, the affected foreign state will be allowed
to also do the same to the product of the offending state. How is it done? It is allowed by the WTO itself.
So aside from self-help, there are conventional modes or methods of enforcing PIL as borne out by treaties, conventions, mostly multilateral
treaties. It is also a fact in international relations that some states are bound to obey PIL because of bar of the public opinion. Some states
easily comply with certain norms for fear that they may be the subject of international criticism. Or, states of course may just voluntarily comply
with a public international norm.
These are some of the reasons why somehow, though not a product of deliberate enactment or not a product of a higher authority imposing a
law upon subservient entities yet, these laws get enforced just the same.
So these are some of the reasons why sovereign states obey. You mentioned about Self Interest theory. That is well accepted. Others offer
what we call acculturation theory, meaning it is just part of the culture of states that they easily obey to certain norms. In fact, even in the
matter of the true concept of the rule of law there has been a suggestion that rule of law is dependent on culture. Do you believe in that? If you
are familiar with the way laws are implemented in Singapore, it is hard to imagine why the Singaporean government is able to do that. Is it just
part of the culture of Singaporeans that they obey these kinds of laws, while Filipinos dont? Is it cultural?
There is also the Legitimacy Theory. There is this feeling that a particular norm is maybe because it is just, right, reasonable, or pragmatic.
Even if we talk about certain policies in our company, there are rules that we easily obey. It is not because we are compelled to obey it but
sometimes, we obey the law because we feel that it is a good law or that it is a sensible law. For example, it is reasonable for the company to
demand that you report on time at exactly 8:00am.
And the fourth one is the Positivist Theory. At least in so far as conventions and treaties are concerned, states obey them because of
consent. This is otherwise called the consent based theory. A contracting party to a treaty of course is bound to obey because it had already
consented to the terms and conditions. Then we apply here what we have already learned about pacta sum servanda. You know that if you
enter into a treaty, you are to obey and comply to the terms and conditions of the treaty in good faith because that is the consequence of
entering into a treaty.
So practically, there are a lot of reasons why states obey PIL and we need to know why they do because we need to be satisfied by the use of
the name law in PIL to the extent that it may be binding under these theories, then we can call PIL a law.
And these are some of forms of peaceful enforcement. Why highlight on peaceful? Because if it is through the use of force, no less that the
UN charter prohibits the use of force. So when we talk of enforcement, we have to talk of peaceful enforcement of PILVoluntary compliance,
public opinion, self-help and treaty based enforcement as in the case of WTO.
Subjects of International Law
Reparation for Injuries Case
The traditional definition is that PIL is the law that governs the relations between states. This definition is not wrong, only that it is the
traditional way of looking at PIL. The view then was to look at PIL as a body of rules that governs relationship between states. The definition is
specific as to the actor in that particular legal system. Because when we talk about legal system, then we talk about actors in the legal system.
So, who are the actors in the legal system? In the definition, it seems that the states are the actors in that kind of legal system. And that legal
system that we are talking about is PIL. That is correct but there are modifications of the definition because of the development in PIL.
Why is this traditional? Because maybe, the modern definition is no longer focused on the states as actors. Maybe there are other actors in
public international law. Other than the states.
What about international organizations? Dont you think PIL also deals with international organizations? For instance: how states deal with
international organizations and vice versa? For example, the United Nations, the World Trade Organization. If these organizations are part of
the study of international law, then it must be an actor in PIL.
What about multinational companies, do they play a role in PIL?
What about individuals? Is PIL a kind of a legal system that deals with individuals? Yes or No?
If your answer is YES, then in what sense are individuals considered actors in PIL?
These are your guide questions.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 3

Most authors however agree on what they consider as a more appropriate definition of PIL. Im not saying it is the correct but at least more
appropriate, comprehensive definition of PIL. Its quite ironic because this definition is taken from a document of the Dept. of Foreign Affairs of
the United Statesa highly controversial actor of the international legal system.
So this is the definition given in the Restatement of the law by the American Institute of Foreign Relations law of the United States Section
101. It is in your outline. IF you want to read the whole restatement, then by all means go ahead.
As can be gleaned from the definition, the actors of PIL include the following:
States
International Organizations
Persons (Natural and Juridical)
Now, since we have the traditional definition of PIL, we can therefore say that it started with a type of legal system that deals with states only.
And so, dealing with international organizations and persons is more of a modern approach to the study of PIL.

Now, go over this problem class:


Problem:
The Chief UN Truce Negotiator Count Bernadotte, a Swedish national, was killed on September 17, 1948 in Jerusalem. The assassins were
allegedly a gang of terrorists. Israel was not a member of the UN at the time of the incident.
Issue:
1. WON the UN had legal personality to bring a claim with the view to obtaining reparations in respect to the damage caused to itself, to the
victim or persons entitled through the victim.
Do you know the idea of Reparation for Damages?
This is a civil law concept but it is also a concept in PIL. You talk about Reparation for Damages when, for example, a citizen of a state suffers
damage in a foreign state. An American for example gets killed in foreign soil. So we will study about the possible responsibility of the
Philippines for example, and on the part of the US, it may bring a claim for and in behalf of the American victim. The process is called
reparation for damages. US will ask for the payment of compensation for the injury inflicted on its citizen.
But this is not a situation where the compensation is given to the victim or the heirs of the victim. This is considered as an injury suffered by
the state. So it just depends on whether there is a domestic law in the US for example that allows the payment of compensation after the US
successfully recovers from the Philippines by way of compensation. So we call it Reparation for Damages.
So why is that relevant to this problem? This is relevant because in this problem, it is not a state that acts for reparations, but only or merely an
international organization. And so we ask the question: Can the UN pursue a claim applying international law for and in behalf of its officer or
employee?
If we say YES, then we are saying that the United Nations possesses what we call International Legal Personality. That is the idea. If you are
able to insist on a claim through the process of Reparation for Damages, then you possess an International Legal Personality. That is akin to
the proper party or locus standi in constitutional law, or real-party-in-interest in civil law.
So, does the UN have personality to ask for Reparation for Damages for and in behalf of its officer or employee? What is the answer? Sige
daw, try lang class.
Sir, naa na man to sa definition sir: Dili lang kay states but also international organizations.
Correct!
But what do you think is the best justification for the answer? Why say that the UN and international orgs have international legal personality
when it is not a state?
This is the first case that you will have to study. There is the Reparation for Injuries Case ICJ Advisory Opinion in 1949.
So, we will try to answer that as we proceed with our discussion.
But the other concern, if you want to understand the concept of PIL, is to study the Subjects of PIL. And how do we distinguish Subject from
Objects of International Law?
Authorities in PIL agree that states are the Primary Subjects of international law. And then we have some subjects that we have to treat as
secondary.
So in the MCQ, if the question goes: Which of the following is not a subject of international law?
a. States
b. UN
c. Individual
d. None of the above

So you of course know the answer.


But the next question is what makes it Primary or Secondary?
The idea class is, if you are the main actor in international law and therefore you are the main subject of international law, then you can go
directly to an International Tribunal like the ICJ and seek relief. You can go there directly because you have the personality as a State,
assuming you are a member of the UN. Now, whether or not the jurisdiction is compulsory is another thing. You will learn later on that the
jurisdiction of the ICJ is not compulsory. There are instances that it is compulsory but generally, it is based on consent. This is why it is really
hard to enforce international law because of lack of a centralized legislative department. There is no legislative department that creates Public
International Law. We will study later on how PIL is formed and enforced.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 4

So if you can go directly to an international tribunal and seek for relief, then we can say that you are a Primary Subject of International law,
because the definition says capable of possessing international rights and duties, including the right to bring international claims.
Now, if you are an individual, you suffered injuries at the hands of authorities in the Philippines and you are an American, what is the proper
way of repairing the damage or the injuries caused you? I mentioned Reparation for Damages. So, what does it take to repair a damage
caused to a foreigner? Can an individual go directly to the ICJ and sue the Philippines and claim that Philippines have committed an
Internationally Wrongful conduct attributable to the Philippines?
Did you remember the case of the Comfort Women? Filipino women had been abused by Japanese Military officers during WW2. So what did
the victims do? Did they go to the ICJ and ask for compensation? They coursed their claim thru the Philippine government because only the
Philippine state can represent them in an international tribunal. The Philippines is a state and therefore it is that entity that possesses
international legal personality. You cannot go directly to the ICJ. You have to ask for compensation. You have to course thru the Philippine
government your claim. It is the Philippine government that will bring your claim to the ICJ. Except that in this case, the Philippine government
refused because at that time, rape was not considered as Erga Omnes or Jus cogens norm. Jus Cogens is of course a peremptory norm that
no state is allowed to violate. It is a non-derogable norm at that time. Maybe now, had the incidence happened at present, maybe the
Philippine government will be compelled to bring the claim before the International tribunal.
So individuals are treated as secondary because they cannot pursue or bring international claims directly but only thru the instrumentality of
the state. So states are the primary subjects. Individuals can be considered as actually objects of international law in that situation. So the
individual is not a subject but merely an object from that perspective.
But in some instances, even individuals can bring international claims directly. But only in specialized circumstances. You think of National
Liberation Movements for example. Have you heard of the right to self-determination? In fact, the right to self-determination has already
ripened into a customary norm. It is already part of customary international law. Have you ever heard of what happened to Cosovo in the
former Yugoslavia?
Groups of people, who share the same history, the same origin, culture may find themselves the minority in a particular community. It may
happen that the particular community, lets say a state tends to disregard the unique culture. As a result this particular state or government will
only pass one set of laws, one set of legal system, one set of policy and disregarding the unique culture of this minority groups. It can happen.
Now, if that happens, after attempts for example by this group, to be recognized by the majority, it may happen that in PIL, they want to
secede. And this is the usual problem in state or territorial secession. They cannot continue to live along with the majority with just one set of
laws because they have their own culture and practices, traditions. They want that the national government will also address that. So that
failure to do so would be a violation of their right to self-determination.
That is the idea of the right to self determination. They want to have their own laws, system, etc.
That is why in the Philippines, we address that. We have our civil law for the vast majority Christian citizens. For our Muslim brothers and
sisters, we also have different sets of legal system. We have in fact different procedures in Sharia courts. And they have their own personal
laws. If the national government is unable to address that, then it may be a case of violating their right to self determination.
But that is not my point because my point is: Suppose attempts to secede fail because any state also has the right in international law to
territorial integrity. That is also a right of any state. So this is one situation that will require a lot of balancing. You have one group trying to
separate because they want to exercise their right in customary international law to self determination on one hand. And on the other hand,
you also have the state which has the right to territorial integrity.
There is one case that I will ask you to read. This is about Quebec trying to secede from Canada. You try read how the Supreme Court of
Canada decided on the right to secede by Quebec.
So assume for example that this conflict between the right of the state to its territorial integrity and the right of the minority to self determination
escalates into an armed conflict. Mind you, in public international law, specifically in international humanitarian law, there is also a specific
definition of an armed conflict. There are standards and we will study that in IHL. So let us assume that there is already an armed conflict.
There is intensity in the fighting and there is uncertainty of winning. So we have one group trying to insist that they separate from the state.
So with the existence of an armed conflict, what happens after?
There are at least three kinds of legal systems in PIL. You have the Laws of Peace, meaning when there is no war. We have of course the
opposite, the Laws of War, meaning there is an armed conflict. And the third, the Laws of Neutrality. States not participating in the armed
conflict, they are also governed by a different system.
So when there is armed conflict, there is a new set of Law that operates between the participants in the armed conflict.
So what are we doing here?
We are trying to pick a branch of PIL and make it applicable to individualsthose armed groups! They are not states. They are not even
organizations. They are just individuals. But why ask them to observe the laws of war?
We have rules in the conduct of war. For example, when you capture a combatants, they are to be treated as Prisoners of War. There are
rules under the Geneva Convention on the treatment of Prisoners of War. Civilians also enjoy rights during an armed conflict. There are
various principles governing the conduct of war. For example, the principle of proportionality, the principle of military necessity. These
principles are PIL principles but we are making them applicable to individuals. To that extent, individuals become Subjects of PIL because they
too are compelled to observe the Laws of War.
Are you following? Well, as if you have a choice noh.
So, you have to distinguish therefor Subject from Object. The Object does not possess international legal personality and therefore it cannot
bring international claims. States are the primary subjects while individuals normally are mere objects of PIL. But in some instances, they may
be regarded as subjects, that is when they exercise their right to self-determination. They may be treated as subjects when there is already an
armed conflict. But in this instance, they may be treated only as secondary subjects.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 5

So a simple question in the essay: How do you treat individuals in public international law? How do you deal with that question? Sir, give me
ten pages and I will answer that! Haha
That is why I would say that states are primarily the subjects of PIL, and these are some of the reasons why:
States still primarily the subjects of PIL because:
International law is predominantly made and implemented by states
International organizations are still dependent to a large extent on the willingness of states to support them
Only states can be members of the UN
Only states are entitled to call upon the UN security council under the UN charter in case of threat to peace and security.
Only states may appear in contentious proceedings before the ICJ
Only states can present a claim on behalf of a national who has been injured by another state
Generally, individuals do not possess individual rights. Only to certain instances that they may be regarded as subjects albeit secondary
subjects.
So in that case of Reparations for Injuries Case that one involving a truce negotiator of the United Nations, who was killed in Israel, the UN
espoused a claim (we call this Espousal of Claim). The UN tried to sue Israel for compensation to represent the victim and the heirs of the
victim. It is in this case that the ICJ defined the meaning of International Legal Personality.
So that definition of International Legal Personality is not taken from an author. It is taken from the ICJ advisory opinion. You will notice here
that the ICJ is a special kind of body because if you remember Consti 1, our Supreme Court is prohibited from giving advisory opinions.
Otherwise, there will be violation to separation of powers. Thus, before judicial review can be exercised, there must be an actual case or
controversy first. The ICJ is a different body because it can give advisory opinion.
Maybe we can say that this is a biased opinion because the ICJ is an organ of the UN. Plus, you have the question of WON the UN has
international legal personality. But obviously, the ICJ will say, Yes it has.
This is what the ICJ said:
What the ICJ is trying to say, although it did not mention in its opinion is that there is such a thing as Derivative International Legal
Personality. This is according to some authors about the opinion of the ICJ. So there is such a thing as Derivative International Legal
Personality. And this is the kind of personality that the UN possesses that enabled it to espouse the claim of its employee or officer.
So the importance of the Reparations for Injuries Case is that it defined International Legal Personality. Second, we also learned tonight that
while the UN is not a state, it possesses International Legal Personality by way of a Derivative International Legal Personality.

B.

Sources of International Law

Article 38 (1), Statute of the International Court of Justice


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 Hi civilized nations;
d. subject to the provisions of Article 5~ 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.
Section 102 & 103, Restatement (Third), American Law Institute of the Foreign Relations Law of the US
102 Sources of International Law
(1) A rule of international law is one that has been accepted as such by the international community of states
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the major legal systems of the world.
(2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal
obligation.
(3) International agreements create law for the states parties thereto and may lead to the creation of customary international
law when such agreements are intended for adherence by states generally and are in fact widely accepted.
(4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or
international agreement, may be invoked as supplementary rules of international law where appropriate.
COMMENTS & ILLUSTRATIONS: Comment:
a. Sources and evidence of international law distinguished. This section indicates the ways in which rules or principles become
international law. The means for proving that a rule or principle has in fact become international law in one of the ways indicated in this
section is dealt with in 103.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 6

b. Practice as customary law. "Practice of states," Subsection (2), includes diplomatic acts and instructions as well as public measures
and other governmental acts and official statements of policy, whether they are unilateral or undertaken in cooperation with other states, for
example in organizations such as the Organization for Economic Cooperation and Development (OECD). Inaction may constitute state
practice, as when a state acquiesces in acts of another state that affect its legal rights. The practice necessary to create customary law may
be of comparatively short duration, but under Subsection (2) it must be "general and consistent." A practice can be general even if it is not
universally followed; there is no precise formula to indicate how widespread a practice must be, but it should reflect wide acceptance among
the states particularly involved in the relevant activity. Failure of a significant number of important states to adopt a practice can prevent a
principle from becoming general customary law though it might become "particular customary law" for the participating states. See Comment
e. A principle of customary law is not binding on a state that declares its dissent from the principle during its development. See Comment d.
c. Opinio juris. For a practice of states to become a rule of customary international law it must appear that the states follow the practice
from a sense of legal obligation (opinio juris sive necessitatis); a practice that is generally followed but which states feel legally free to
disregard does not contribute to customary law. A practice initially followed by states as a matter of courtesy or habit may become law when
states generally come to believe that they are under a legal obligation to comply with it. It is often difficult to determine when that
transformation into law has taken place. Explicit evidence of a sense of legal obligation (e.g., by official statements) is not necessary; opinio
juris may be inferred from acts or omissions.
d. Dissenting views and new states. Although customary law may be built by the acquiescence as well as by the actions of states
(Comment b) and become generally binding on all states, in principle a state that indicates its dissent from a practice while the law is still in the
process of development is not bound by that rule even after it matures. Historically, such dissent and consequent exemption from a principle
that became general customary law has been rare. See Reporters' Note 2. As to the possibility of dissent from peremptory norms (jus
cogens), see Comment k. A state that enters the international system after a practice has ripened into a rule of international law is bound by
that rule.
e. General and special custom. The practice of states in a regional or other special grouping may create "regional," "special," or
"particular" customary law for those states inter se. It must be shown that the state alleged to be bound has accepted or acquiesced in the
custom as a matter of legal obligation, "not merely for reasons of political expediency." Asylum Case (Colombia v. Peru), [1950] I.C.J. Rep.
266, 277. Such special customary law may be seen as essentially the result of tacit agreement among the parties.
f. International agreement as source of law. An international agreement creates obligations binding between the parties under
international law. See 321. Ordinarily, an agreement between states is a source of law only in the sense that a private contract may be
said to make law for the parties under the domestic law of contracts. Multilateral agreements open to all states, however, are increasingly
used for general legislation, whether to make new law, as in human rights (Introduction to Part VII), or for codifying and developing customary
law, as in the Vienna Convention on the Law of Treaties. For the law of international agreements, see Part III. "International agreement" is
defined in 301(1). International agreements may contribute to customary law. See Comment i.
g. Binding resolutions of international organizations. Some international agreements that are constitutions or charters of international
organizations confer power on those organizations to impose binding obligations on their members by resolution, usually by qualified
majorities. Such obligations derive their authority from the international agreement constituting the organization, and resolutions so adoptedby
the organization can be seen as "secondary sources" of international law for its members. For example, the International Monetary Fund may
prescribe rules concerning maintenance or change of exchange rates or depreciation of currencies. See 821. The International Civil
Aviation Organization may set binding standards for navigation or qualifications for flight crews in aviation over the high seas.
For resolutions of international organizations that are not binding but purport to state the international law on a particular subject, see
103, Comment c.
h. The United Nations Charter. The Charter of the United Nations has been adhered to by virtually all states. Even the few remaining
non-member states have acquiesced in the principles it established. The Charter provisions prohibiting the use of force have become rules of
international law binding on all states. Compare Article 2(6). See 905, Comment g.
Article 103 of the Charter provides:
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under
any other international agreement, their obligations under the present Charter shall prevail.

Members seem to have read this article as barring them from making agreements inconsistent with the Charter, and have refrained from
making such agreements. See, e.g., Article 7 of the North Atlantic Treaty, 1949, 63 Stat. 2241, T.I.A.S. No. 1964, 34 U.N.T.S. 243; Article 102
of the Charter of the Organization of American States, 1948, 2 U.S.T. 2394, T.I.A.S. No. 2361, 119 U.N. T.S. 3. And see Comment k.
i. International agreements codifying or contributing to customary law. International agreements constitute practice of states and as such
can contribute to the growth of customary law under Subsection (2). See North Sea Continental Shelf Cases (Federal Republic of Germany v.
Denmark & Netherlands), [1969] I.C.J. Rep. 3, 28-29, 37-43. Some multilateral agreements may come to be law for non-parties that do not
actively dissent. That may be the effect where a multilateral agreement is designed for adherence by states generally, is widely accepted, and
is not rejected by a significant number of important states. A wide network of similar bilateral arrangements on a subject may constitute
practice and also result in customary law. If an international agreement is declaratory of, or contributes to, customary law, its termination by
the parties does not of itself affect the continuing force of those rules as international law. However, the widespread repudiation of the
obligations of an international agreement may be seen as state practice adverse to the continuing force of the obligations. See Comment j.
j. Conflict between international agreement and customary law. Customary law and law made by international agreement have equal
authority as international law. Unless the parties evince a contrary intention, a rule established by agreement supersedes for them a prior
inconsistent rule of customary international law. However, an agreement will not supersede a prior rule of customary law that is a peremptory
norm of international law; and an agreement will not supersede customary law if the agreement is invalid because it violates such a
peremptory norm. See Comment k. A new rule of customary law will supersede inconsistent obligations created by earlier agreement if the
parties so intend and the intention is clearly manifested. Thus, the United States and many other states party to the 1958 Law of the Sea
Conventions accept that some of the provisions of those conventions have been superseded by supervening customary law. See Introductory
Note to Part V.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 7

k. Peremptory norms of international law (jus cogens). Some rules of international law are recognized by the international community of
states as peremptory, permitting no derogation. These rules prevail over and invalidate international agreements and other rules of
international law in conflict with them. Such a peremptory norm is subject to modification only by a subsequent norm of international law
having the same character. It is generally accepted that the principles of the United Nations Charter prohibiting the use of force (Comment h)
have the character of jus cogens. See 331(2) and Comment e to that section.
l. General principles as secondary source of law. Much of international law, whether customary or constituted by agreement, reflects
principles analogous to those found in the major legal systems of the world, and historically may derive from them or from a more remote
common origin. See Introductory Note to Chapter 1 of this Part and Reporters' Note 1 to this section. General principles common to systems
of national law may be resorted to as an independent source of law. That source of law may be important when there has not been practice
by states sufficient to give the particular principle status as customary law and the principle has not been legislated by general international
agreement.
General principles are a secondary source of international law, resorted to for developing international law interstitially in special
circumstances. For example, the passage of time as a defense to an international claim by a state on behalf of a national may not have had
sufficient application in practice to be accepted as a rule of customary law. Nonetheless, it may be invoked as a rule of international law, at
least in claims based on injury to persons (Part VII), because it is a general principle common to the major legal systems of the world and is
not inappropriate for international claims. Other rules that have been drawn from general principles include rules relating to the administration
of justice, such as the rule that no one may be judge in his own cause; res judicata; and rules of fair procedure generally. General principles
may also provide "rules of reason" of a general character, such as acquiescence and estoppel, the principle that rights must not be abused,
and the obligation to repair a wrong. International practice may sometimes convert such a principle into a rule of customary law.
m. Equity as general principle. Reference to principles of equity, in the sense of what is fair and just, is common to major legal systems,
and equity has been accepted as a principle of international law in several contexts. See, e.g., the delimitation of coastal state zones, 517.
That principle is not to be confused with references to "equity," and distinctions between law and equity as separate bodies of law, in
traditional Anglo-American jurisprudence. Reference to equity as a principle incorporated into international law is also to be distinguished from
the power, conferred on the International Court of Justice in Article 38(2) of the Statute (and on other tribunals in numerous arbitration
agreements), to decide cases ex aequo et bono if the parties agree thereto, which permits the Court to settle a case without being confined to
principles of law. See 903, Reporters' Note 9.

103 Evidence of International Law

(1) Whether a rule has become international law is determined by evidence appropriate to the particular source from which that rule
is alleged to derive ( 102).
(2) In determining whether a rule has become international law, substantial weight is accorded to
(a) judgments and opinions of international judicial and arbitral tribunals;
(b) judgments and opinions of national judicial tribunals;
(c) the writings of scholars;
(d) pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously
challenged by other states.

COMMENTS & ILLUSTRATIONS: Comment:


a. Primary and secondary evidence of international law. Section 102 sets forth the "sources" of international law, i.e., the ways in which
a rule or principle becomes international law. This section indicates the means of proving, for example, in a court or other tribunal, that a rule
has become international law by way of one or more of the sources indicated in 102.
Under Subsection (1), the process of determining whether a rule has been accepted as international law depends on the particular
source of international law indicated in 102 from which the rule is alleged to derive. Thus, for customary law the "best evidence" is proof of
state practice, ordinarily by reference to official documents and other indications of governmental action. (Similar forms of proof would be
adduced as evidence that a state is not bound by a principle of law because it had dissented, 102, Comment d). Law made by international
agreement is proved by reference to the text of the agreement, but appropriate supplementary means to its interpretation are not excluded.
See 325. Subsection (2) refers to secondary evidence indicating what the law has been found to be by authoritative reporters and
interpreters; the order of the clauses is not meant to indicate their relative importance. Such evidence may be negated by primary evidence,
for example, as to customary law, by proof as to what state practice is in fact.
A determination as to whether a customary rule has developed is likely to be influenced by assessment as to whether the rule will
contribute to international order.
For the practice of United States courts in determining international law, see 113.
b. Judicial and arbitral decisions. Article 59 of the Statute of the International Court of Justice provides: "The decision of the Court has
no binding force except between the parties and in respect of that particular case." That provision reflects the traditional view that there is no
stare decisis in international law. In fact, in the few permanent courts, such as the International Court of Justice, the Court of Justice of the
European Communities, and the European Court of Human Rights, there is considerable attention to past decisions. See 903, Reporters'
Note 8. That may be expected, too, of the Inter-American Court of Human Rights established in 1979. In any event, to the extent that
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 8

decisions of international tribunals adjudicate questions of international law, they are persuasive evidence of what the law is. The judgments
and opinions of the International Court of Justice are accorded great weight. Judgments and opinions of international tribunals generally are
accorded more weight than those of domestic courts, since the former are less likely to reflect a particular national interest or bias, but the
views of national courts, too, generally have the weight due to bodies of presumed independence, competence, impartiality, and authority.
Under the foreign relations law of the United States, determinations of international law by courts in the United States are respected to
the same extent as other determinations of law; lower courts must of course accept decisions of higher courts, and the determinations of the
Supreme Court of the United States are conclusive on all courts in the United States. See 112(2).
c. Declaratory resolutions of international organizations. States often pronounce their views on points of international law, sometimes
jointly through resolutions of international organizations that undertake to declare what the law is on a particular question, usually as a matter
of general customary law. International organizations generally have no authority to make law, and their determinations of law ordinarily have
no special weight, but their declaratory pronouncements provide some evidence of what the states voting for it regard the law to be. The
evidentiary value of such resolutions is variable. Resolutions of universal international organizations, if not controversial and if adopted by
consensus or virtual unanimity, are given substantial weight. Such declaratory resolutions of international organizations are to be
distinguished from those special "law-making resolutions" that, under the constitution of an organization, are legally binding on its members.
See 102, Comment g.
REPORTERS NOTES: 1. Writings of international law scholars. The "teachings of the most highly qualified publicists of the various nations"
are treated in Article 38(1)(d) of the Statute of International Court of Justice as subsidiary means for the determination of international law.
See 102, Reporters' Note 1. Such writings include treatises and other writings of authors of standing; resolutions of scholarly bodies such
as the Institute of International Law (Institut de droit international) and the International Law Association; draft texts and reports of the
International Law Commission, and systematic scholarly presentations of international law such as this Restatement. Which publicists are "the
most highly qualified" is, of course, not susceptible of conclusive proof, and the authority of writings as evidence of international law differs
greatly. The views of the International Law Commission have sometimes been considered especially authoritative. See, e.g., North Sea
Continental Shelf Cases (Federal Republic of Germany v. Denmark & Netherlands), [1969] I.C.J. Rep. 3, 33 et seq.
2. Declaratory resolutions of international organizations. Article 38(1)(d) of the Statute of the International Court of Justice, 102,
Reporters' Note 1, does not include resolutions of international organizations among the "subsidiary means for the determination of rules of
law." However, the Statute was drafted before the growth and proliferation of international organizations following the Second World War.
Given the universal character of many of those organizations and the forum they provide for the expression by states of their views regarding
legal principles, such resolutions sometimes provide important evidence of law. A resolution purporting to state the law on a subject is some
evidence of what the states voting for the resolution regard the law to be, although what states do is more weighty evidence than their
declarations or the resolutions they vote for. The evidentiary value of such a resolution is high if it is adopted by consensus or by virtually
unanimous vote of an organization of universal membership such as the United Nations or its Specialized Agencies. On the other hand,
majorities may be tempted to declare as existing law what they would like the law to be, and less weight must be given to such a resolution
when it declares law in the interest of the majority and against the interest of a strongly dissenting minority. See, e.g., the General Assembly
resolution declaring that the use of nuclear weapons is a violation of international law (G.A. Res. 1653, U.N. GAOR, Supp. No. 17 at 4), and
the "Moratorium Resolution" declaring that no one may mine for resources in the deep-sea bed until there is an agreed international regime
and only in accordance with its terms (G.A. Res. 2574(D), 24 U.N. GAOR, Supp. No. 30, at 11), both of which were challenged by the United
States, a principal power immediately affected by those resolutions. See 523, Reporters' Note 2. Even a unanimous resolution may be
questioned when the record shows that those voting for it considered it merely a recommendation or a political expression, or that serious
consideration was not given to its legal basis. A resolution is entitled to little weight if it is contradicted by state practice, Comment a, or is
rejected by international courts or tribunals. On the other hand, a declaratory resolution that was less than unanimous may be evidence of
customary law if it is supported by thorough study by the International Law Commission or other serious legal examination. See, for example,
the reliance on one United Nations General Assembly resolution but deprecation of another resolution by the arbitrator in Texas Overseas
Petroleum Co. v. Libyan Arab Republic (1977), 17 Int'l Leg.Mat. 1 (1978).

Resolutions by a principal organ of an organization interpreting the charter of the organization may be entitled to greater weight. In some
instances, such an interpretation may, by the terms of the charter, be binding on the parties, for example, those of the Council of the
International Coffee Organization. See Charter of the International Coffee Organization, 469 U.N.T.S. 169. Declarations interpreting a charter
are entitled to considerable weight if they are unanimous or nearly unanimous and have the support of all the principal members.
See generally Schachter, "The Crisis of Legitimation in the United Nations," 50 Nordisk Tidsskrift for International Ret 3 (1981).

Treaties

Law-making Treaties and contract treaties


Parties to International Treaties and International Contracts

Have you read the case of Nicaragua vs. USA. This is one case that you should not miss because there is a very good discussion there
about customary international law.
You will notice that this problem necessitated the application and understanding of customary international law. The United States in this case
argued that it made reservation in the UN charter that if what is to be applied is a multilateral treaty, then it is required that there should be a
consent on the part of the USA before that multilateral treaty (the UN charter itself) may be made applicable only if the USA consents. There
was an issue on whether or not the application of certain norms would have to be dependent on treaty or treaties. If we are to talk about the
principle non-intervention which is another principle in PIL, is it dependent on treaty such that if the ICJ is to rule that the UN charter is not
applicable or enforceable to the US because it made a reservation By the way, when states enter into multilateral treaties or conventions,
chances are some member states are compelled to make certain reservations on certain provisions. You cannot expect all states to agree on
all terms of the convention. A state that doesnt agree on a particular term can make a reservation. We will study later on how reservation
should be done. In which case, the contracting party making a reservation becomes in fact a party to the convention but the moment that

402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 9

particular provision is applied by the member states it is not bound to comply with that particular provision because it has lawfully made a
reservation.
This is what actually happened in here in the case of Nicaragua vs. USA. The US made a reservation as to the application of the UN charter
in so far as application of it being a multilateral treaty. This is just a sort of introduction to my next topicSources of PIL.
When we speak of sources, we may refer to what we call the Formal Sources of PIL or the Legal or what your textbook mentioned as Material
Source of PIL. Can you distinguish one from the other? What is Formal Source of PIL and what is Material Source of PIL?
When you say Formal, it is how international law is created or established. It is the method by which the law comes into being. So when we
say formal source in regard to customary international law, then we can say: The mentioned in which Customary International Law is created
is state practice.
When we speak of Material, what do we mean by that? So for example when we say, the way a particular international norm is created is
through the practice but where do we see the substantive law? Probably in the decision of a Supreme Court of a particular state. In the
Paquette Habana Case for example, Official Declarations of Officials of State. So we are looking at where they are found, when we talk of
Legal or Material Source of PIL. So you have to be careful of the use of the term source because when you say source, you may actually be
referring to the way it is formed or where it can be found. So when you say: How it is established, created, formed, you are talking about
formal source. And when you say legal or material, then it is where it can be found.
Now, let us talk about the first source.
You go to Article 38 Par 1 of the Statute of the ICJ, you will notice that the statute of the ICJ classifies these sources into Primary and
Subsidiary.
My next question is: Is there a hierarchy among the Sources of PIL? Since the statute mentions of conventions, does it prevail over
international customs?
While there is no some sort of hierarchy between them, one stands out as a set of norms that will be considered as higher than any other
international law. This is what we mentioned as Jus Cogens. This is a valid observation.
Historically, when the ICJ statute with reference to Article 38 Par 1 was formulated, there had been suggestions to come up with a hierarchy
but the member states were not able to do so. But they agreed only on two kinds. The Primary and the Subsidiary.
In the Preparatory Works, which play a vital role in the way we interpret conventions and treaties. By analogy, we recall what we learned in
statutory construction. In the way we interpret treaties and conventions, we also make use of the Preparatory Works that led to the treaty
stipulation itself.
The ICJ statute uses the term convention but this of course includes treaties. In PIL, the terms agreement, pact, charter, statute, covenant,
treaty, convention, they do not matter at all. There is no specific and peculiar treatment different from the others the moment a term is used in
one agreement and a different term is used in another agreement. Unlike in the Philippine Practice, we do make a distinction between treaties
and international agreements. And what is the relevance of distinguishing international agreements from treaties? It is the requirement of
concurrence by the Senate will be applicable only if what is entered into by our executive department partakes the nature of treaty. So that if it
is not a treaty based on our evaluation or judgment, and may only amount into an international agreement under our standards, domestically
we do not require the concurrence of the Senate. So if it is an international agreement, then the signature of the President is all that is
required. But if it is a treaty, then we need the concurrence of the Senate before it can be considered binding in out jurisdiction. So
domestically, we find relevance to that distinction. But not in PIL.

Custom
Evidence of Customary Law
After treaties or conventions, we go to Customs.
In Article 38.1 of the ICJ Statute, it is described as a custom as evidence of the general practice accepted as law. Then the Restatement of the
US Document on Foreign Relations Law, Section 102 defines the term Customary International Law results from a general and consistent
practice of states followed by them from a sense of legal obligations. There is practically no difference between both.
Even the US recognizes that these are the elements of Customary International law. [refer above]
So you have the objective element and the subjective element.
Why is it called the Objective Element? Objective because it is factual. You will see whether or not a particular norm is being practiced by
states. And where do we see that? How do we know whether a particular norm had been practiced by states? Are there ways to determine
how?
Let me go straight to the case of Nicaragua vs. USA. There was a contention on the part of Nicaragua that the United States violated the
Principle of Non-intervention when it aided the so-called Contras who were then trying to overthrow the newly installed left-wing government
of the Sandinista. And so there was an intervention according to Nicaragua and this intervention violated customary international law. But the
US said this principle of Non-intervention that you are talking about is only based on the provision of the UN charter which we have made a
reservation that this is not applicable to us. And so the ICJ was confronted with the question of Whether or not customary international should
be dependent or independent of treaty. And of course, I think you have encountered from your readings that the ICJ said No, customary
international law is not dependent on any treaty. In fact, it can co-exist with any treaty stipulation. And so, when the ICJ said that somehow
the reservation is applicable to the USA. And so, we have to rule WON the principle of Non-intervention and other principles such as the
prohibition against the use of force, are independent of the UN charter because if they are independent of the UN charter, then that argument
of the USA becomes immaterial. With or without application of the UN charter, customary international law can be applied. And so the ICJ
went into visiting practices of the USA itself, WON it even adhered to the principle of Non-intervention, the principle on the Prohibition on the
Use of Force.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 10

The ICJ did as that. The ICJ found out that there was in fact a State Practice on the principle of non-intervention, use of force, respecting
sovereignty of other states, etc.
What is the meaning of General Practice? This is the perspective of the ICJ: If some states do not follow the norm, that should not be treated
as an obstacle to that norm becoming a customary international law. If it is not an obstacle, so how do we treat that? The non-practice may be
considered violation or breach of the norm. That is the better view: to call it a breach of that norm.
What is the requirement of General Practice as an Objective Element?
What do we mean by uniform and consistent practice? When we say consistent, can it be determined in a short period of time? Because it is
hard to tell that it has been consistently practiced by states when the norm had been there by just 5 years. Is there such a thing as an Instant
Customary Law? What did the ICJ say in the North Sea Continental Shelf Cases (Norway vs. Denmark and Germany vs. Netherlands)? The
case mentioned of a possible Instant Customary International Law.
Very briefly, we have the Federal republic of Germany on one hand and Denmark on the Other and Netherlands on the other. There was an
issue as to the extent of the Continental Shelf. What is a continental shelf? It is the extended territorial mass of a particular state. Of course,
the landmass, when it goes down towards the sea naa pa nai nahabilin nga extended foot sa continent. Below is a basic illustration of a
Continental Shelf:

Before the 1982 UN Convention on the Laws of the Sea (UNCLOS), there had been several issues as to how the continental shelf should be
computed. And one of the states which was heavily involved in the controversy were these states of Germany, Denmark and Netherlands.
Apparently, there was this convention in 1958 that dealt with continental shelf. And what was the substance of that convention that dealt with
the continental shelf? How was the continental shelf supposed to be divided if for example you have two states that are very close to each
other and we cannot with precision determine the extent of the continental shelf of one state? The 1958 Convention provided for the
Equidistant Principle. And the main objection to the 1958 Convention on the Continental Shelf is that it had been there for a period of just 5
years. So how can you invoke a provision in that convention (because at that time it did not take effect yet). They said simply that the
convention may not have been effective yet but it consisted of customary international norm. And therefore, pursuant to the Nicaragua Case, it
should be independent of any treaty. And so on the question of WON it is possible to have an instant customary norm, what did the ICJ say
about it? The ICJ said that it may be possible to have an instant customary international law. But under what condition?

You will notice here class that when we talk of general practice, we are talking of practice of states. When we talk about opinio juirs, then we
are talking about (because it is subjective) how it is perceived by states. All these elements necessarily require state participation. That is why
it may be said that only states make customary international law. Because you require state practice, you require opinio juris and these are
matters which only states can provide. And customary international law therefore is a result of state practice and therefore it is a creation of
states.
Take note also that customary international law evolves. This is the beauty here. It is evolving and therefore one customary international law
may be superseded by another customary international law provided that the two elements are present. The new practice becomes the new
customary international law. That is possible but hard to achieve.
Your classmate was right in saying that Jus Cogens is the highest form of customary international law. How is Jus Cogens defined? [refer to
the definition above]
How do you test the validity of the terms and provisions of a treaty? Remember, there is no supreme law, there is no constitution from which
we can base the validity or invalidity of a particular treaty, unlike in a domestic legal system. And so the states in coming up with one ground to
invalidate a provision in the treaty is when that provision violates jus cogens.
Jus cogens is a peremptory norm, a non-derogable norm. The problem of course is how to identify norms that may have achieved the status
of jus cogens norm. Probably, we can rely on state practice, we can rely on opinions of international tribunals. And so authors of PIL will all
agree that these three for example are jus cogens norms: Genocide, Torture, Slavery.
So if you enter into a treaty that allows torture, it may be invalidated on the basis that it violated jus cogens norm. So that the legitimacy of
torture may be questioned by the victim, even if it is so allowed under a treaty. It is non-derogable. By analogy, we can also apply this
domestically. How do we determine the validity or invalidity of a constitutional provision when it is already the highest law? The Supreme Court
said in the case of Planas, we may be able to do so if a constitutional provision violates jus cogens norm.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 11

Considered the most important source of international legal obligations. It doesnt have to be universal. What is required is generality of the
practice. There is wide acceptance of states involved in the activities.
The elements in the formation of customary law
Objective Element (State Practice)
Subjective or Mental Element (Opinio Juris)
Paquete Habana Case
Instant customary law
Universality and consentual theory of International Law
Nicaragua vs USA
North Sea Continental Shelf Cases
Libya vs. Malta
Columbia vs. Peru
UK vs. Norway
UK vs. Iceland
Legality of the Threat or Use of Nuclear Weapons Case
Lotus Case
General Principles of Law
Southwest Africa Case
Barcelona Traction Case

Here, we have the basis characteristic of Customary International Law (CIL). Take note of the requirement of repeated state practice.
Cases on Custom as Sources of PIL
[Atty. Largo enumerated here the cases but you may just refer to your syllabus]
Discussions:
Let me talk about the Paquette Habana Case, and how it is related to customary international law?
This involves privately owned commercial vessels. These fishing vessels were under the Spanish Flagship and these were taken by US ships
and deemed as prices of war. What happened back then was that there was a war between Spain and USA. The owners of the commercial
fishing vessels should not be considered as prices of war because it has been a practice in customary international law that private
commercial vessels are not to be considered as prizes of war. Was it shown that the USA had also agreed on that kind of norm that fishing
vessels may not be considered as prizes of war and exempt from capture? The US Supreme Court said that even the USA had believed and
in fact practiced such customary norm. The US Supreme Court went into mentioning various treaties entered into by the US that involved the
recognition of exempting fishing vessels from capture as price of war.
Barcelona Traction case
Our main concern here is the propriety of Belggium as a State to represent the Belgian nationals stockholders of the company in asking for
compensation. What was the pronouncement of the ICJ in this matter?
Classmate: The ICJ thought that initially the Belgian government has the legal standing in representing the case of the Belgian nationals
because if they dont have the standing then it would be tantamount that claims are not taken but then in the second case which was decided
on 1966, the ICJ reversed its previous ruling and held that Belgian Government had no legal standing and..1970? (sir clarified the year). In this
case the ICJ said that ..diplomatic ... international law are continuously evolving and that municipal legal system must be applied. It was shown
later that there is a firm distinction between a companys right and right of that of a stockholder. And in the international level, the State can
seek redress for any injuries or damages obtained by the company in that said state, but then nowhere in international law that can be said
that the state can represent the shareholders interest.

Sir: the reason why you were ask to read the Barcelona Traction case is to learn the possibility of applying a law that is neither customary nor
conventional, correct? And in fact as you have learned last time, the reason, general principle of law are included as the third primary source
of international law is because of the possibility that indeed, there may be a controversy where no customary international or conventional
international law like a treaty law, may be applied to the case. And the difficulty here lies in the fact that, specially at the time the statute of ICJ
was created or the ICJ was established through that statute, because only the ICJ which was accepted and recognized as an international
tribunal. Okay? In the past there had been ad hoc tribunals but which were created only for a particular purpose. Notably for the prosecution of
certain war crimes, rights against humanity, genocide and all those atrocities committed usually during the First World War and up to the
Second World War. Because only very recently that we successfully after many attempts to create another permanent court in international
criminal court or the ICC as created by the Rome Statute. Okay?
And so the thinking then was it would be hard for the ICJ to look into possible references from decisions of another international tribunal
because there was no other international tribunal at that time. And so it is expected that the ICJ will have to look into principles of law that
have been practiced by domestic courts. Okay? Mixed principles of law of course are generally practiced that why the are called general
principles of law. But since their applications are domestic then they may not have attained the status of a customary international law.
Principles such as what? Equity, prescription, estoppels, prior exhaustion of administrative remedies, sot those are examples of general
principles of law.
Now, all these principles of law as you will observe are most likely applied in a domestic controversy, because seldom it is applied in an
international controversy. Now, in this case of Barcelona Traction case, what principles of law were applied? Which is not customary nor
conventional?
Classmate: in this case the ICJ applied the municipal law with regard the State in representing the Spain. Whose municipal law?(sir ask)
Municipal law of Belgium sir. Of Belgium, or is it the municipal law of any state for that matter? If you are to talk about rules governing, who
among you here studied corporation law? Nagjoke si sir..nangatawa ang klase. Katong nay background sa commercial law, are you familiar
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 12

with what is called or termed as a derivative suit? Have you ever heard of derivative suit in corporation law? Who remembers? Who eats
onions a lot?
Did I show this last time? And the pronouncement of the ICJ? The ICJ made mention of the need to apply municipal law. So in a derivative suit
for example which I believe is a common practice among civilized states. Whether you are probably democratic state or non democratic for as
long as there is commercial activity, for as long as there are corporation participating in commerce, I believe the concept of corporation is
similar anywhere in the world. Maybe a being that youve create a new personality and so if there is an incorporation or creation of a new
personality, can that personality may also have the characteristics or the treats of any person? This type of course as a juridical entity and
therefore it can acquire assets. The properties of the corporation do not belong to the stockholders, do not belong to the officers, theyre
owned by the corporation as an artificial being. I think you have that principle learned in other subjects without having studied corporation law.
Yes? That the idea of distinct and separate personality , I believe is a general principle of law in any corporation practice, otherwise, usual
distinction between a partnership and a corporation. And so if Barcelona Traction companies suffered losses as result of what was alleged to
be unreasonable refusal on the part of Spain to credit its foreign currencies in the investment of sterling bonds. It was the company which
actually suffered losses and of course eventually, that will have to cause the losses also to the stockholders. If that is the idea and if there are
acts that are considered done against the company then it should be the company that has the personality to claim that suit.

Are wrong done to the company frequently cause prejudice to its shareholders but this did not imply that both were entitle to claim
compensation. Whenever theres interest were harm not done to the company towards the company that has to look to institute appropriate
action. This is actually derivative suit. This happen usually for example here, very common in family corporations. Some directors,
stockholders, will go out of the country leaving for example the elder brother or sister as the president, the CEO and the COO at the same time
of the company because there are no other siblings around. After five years, perhaps the company will now go bankrupt and so the other
siblings will start to investigate what happen and when for example they realize that a lot of assets had been disposed of without the consent
of the majority of the stockholders. Many operations had resulted to loses not to mention that perhaps the president may have misappropriated
millions of company funds. If one stockholder may have the guts to sue the elder brother or sister in order to prevent further loses to the
company then he may institute derivative suit in court. That derivative suit actually is filed for and in the name of the corporation and not by the
stockholder in his personal capacity. You will learn that in your corporation law. Okay? So instead of saying, X as a stockholder against Y,
president of ABC company, its going to be, ABC company represented by stockholder X against etc. as a derivative. That is the principle
practiced in, I believe in most countries, especially in developed country. It was used by the ICJ because there is no available principle that will
apply to the question of whether or not Belgium would have the personality to bring the suit for and in behalf of its nationals. But this is not to
say that States cannot bring the suit for and in behalf of national because you have learned in espousal claims the State is the proper party. In
cases where another State for example offends, violates the right of another citizen, of the citizen of that State rather then it may espouse a
claim. But this is different story because it involves a company. What about this case of Southwest Africa? Let me just lead you right away to
this principle on actio popularies. What is action popularies and what is the status of action popularies in international law?

My understanding of actio popularies is this is a question of the propriety or validity of filing a suit in international courts. Being a suit in
international courts for and in behalf of the victims, when the one bringing the suit is not wanted. So what is actio popularies?
Classmate: actio popularies is that when a State represent a, like in the case of Southwest Africa wherein the Liberia and the Ethiopia. So this
involves nominee states binding Liberia and Ethiopia? So what was the claim all about? They claim that Southwest Africa, they had the duty to
promote the interest and wellbeing of the inhabitants. Ethiopia and Liberia said that southwest Africa, they did not comply with the requirement
to enhance the wellbeing of the inhabitants.
And you mention of that its not recognize principle of law, so actio popularies is a municipal law, its a local law actually, that has not yet ripen
into a general principle of law as source of international law. So let me go straight to the case of Netherlands vs. Belgium. Once again the, this
time around the PCIJ, because this is an earlier case, so before the ICJ, we have the PCIJ under the League of Nations, the same principle
was declared that the statute or the charter directs the application of the general principles of law recognized by the civilized nations. I want to
know what general principle was applied in this case.
(Classmate answered) The general principle that was applied in that case is the principle of equity. The principle of equity is a broad principle
and there could be so many specific principles that are basically principles of equity. So in this case what is the specific and particular principle
of equity that was applied? Im sure this principle, you had already learnt in your civil law. It is recognized as one of the principle involving
estoppels. What about those who come to court must bring a rubbing alcohol.
So the complainant here is Netherlands because what did Belgium do that impelled Netherlands to bring the suit? It is about a canal. A canal
by the way class is not the canal we see here. We never you heard about canal rest assured that is not the kind of canal that we see in Colon.
Any man-made river is a canal, ok? If its a man-made river, its a canal. And so what happened to the creation of a canal? What did it cause
Netherlands? What was the effect of building a canal by Belgium? Belgium had a defense that Netherlands cannot complain because some
time earlier, before the filing of the case Netherlands had also did something similar to what Belgium did. Also in violation of the Treaty. And so
resolving on the propriety of bringing a suit by one who is also equally guilty, the CIJ or the ICJ rather applied that general principle of law.
That if you are equally guilty because you have also performed more or less similar violation complained of by the other party then you are not
a party who come to court with clean hands. So another principle that is not of international law origin but practiced by municipal courts. But
then again, for lack of principle in international law then the International Tribunal applied general principle of law.
So lets go back to the sources of public international law. In the context of course of ICJ resolving the controversy, the following are the
sources as you already learned. 1.) international conventions 2.) international custom 3.) general principles of law.
For international conventions, this concept includes treaty. International conventions or treaties are sources of international law of course only
in so far as the parties are concerned. Is it possible for a non-party to be bound by the norms in the convention? If the norm is originally a
customary international norm then the non-party may still be bound not by the treaty norm but by the customary international norm. Although
there had been so many conventions and therefore treaty norms that have incorporated and transformed customary international norms,
always remember your case of Nicaragua vs. US that the same customary international norms have not lost their applicability. They can
therefore co-exist alongside treaty norms so that in the event and for whatever reason the treaty norm may not be applied the customary norm
from which that treaty norm had been established may still be made applicable. That is why the most important area of the study of
international law would have to be the study of all customary international law. That is why I invited you to read a book, we have a book there
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 13

in the library just about customary international law. Unya na sir when I pass the subject and I will have the time I will read that. My concern
now sir is to be able to learn as many principles as possible before going deeper into each one. Bitaw sad, sakto na.
International custom no. Remember always your elements, Objective element, the state practice and the subjective element of opinio juris. For
the objective element of state practice, remember always that you have to look into the relevant state practice not just any practice but what is
important is for you to look for the relevant state practice and the relevant state practice of course would be the practice of states involved in
the activity regulated by the norm. but you dont necessarily determine or evaluate state practice of those states that are not involved in that
activity governed by the norm but you have to look into the states that are affected by the practice. So if for example the practice is to exempt
commercial vessels as subject of capture in times of war then it is relevant to look into the practice of those states engaged in war in the past.
That is the relevant state practice. Then as for opinio juris its an additional element. Even if it is generally practiced by the states, if the
practice is not by reason of the belief of the practicing state that the norm is a binding law then there is no opinio juris. So that is an important
and in fact an indispensable element. And you need to know how to look into the proof of that opinio juris in the same manner that you also
have to know how to look into state practice. I think I showed you the way to look for the state practice and to look for opinio juris. General
assembly resolutions have been considered as perhaps the best manifestation of the belief of states to a particular norm whether it is a belief
that the norm is a binding law or not. And in view of the possibility that controversy may not be actually covered by customary norm or by
conventional or a treaty law, then there is a need for the ICJ to apply general principles of law which are normally municipal law practiced by
civilized states and this is expected because the ICJ does not have the venue to look for possible sources other than conventions and
customary international law. But you can include the practice of domestic courts of states. So these are the primary sources of international
law.

Judicial Decisions
Article 59, Statute of the ICJ
The decision of the Court has no binding force except between the parties and in respect of that particular case.
Learned Writers
If, after the attempt to look for customary, conventional and general principle of law, the IVJ cannot still resolve international controversy then it
may resort to what we call the subsidiary means of looking for the sources of international law. It has been said however class that judicial
decision and teachings of most highly qualified publicists are not in themselves the sources of the law. They are but the means and tools by
which these sources of international law may be discovered. So you dont say for example that this is the norm because this is what Antonio
Cassesi said because what Antonio Cassesi said, a well-known authority in international criminal law , may perhaps be based on state
practice, observations, and other acts of the international players. So authors agree that the better approach is not to look at these decisions
and teachings as the sources of the law themselves. Unlike international customs and international conventions where you can invoke a
provision as the international law as between the parties in so far as the conventional law is concerned. You can say Ahh, that section 1 is our
law because we are parties to the contract. But you cannot say that what Cassessi said is the law. What he said would only be based on
international law as he observed it. You have to take note of that. That is why it has to be treated as subsidiary and by subsidiary we only refer
to the tool by which you can discover and look for international law applicable to a case.

Question during class: Once the ICJ invokes the teaching of the highly qualified publicist Sir in its decisions, can we say that once the ICJ
uses it and how it interprets it, it becomes an international law Sir?
Atty Daryl: No. because what the most highly qualified publicists, we have to use this term jud huh kai mao jud ni ang wording, what the most
highly qualified publicists. The ICJ is not invoking, its like including what this most highly qualified publicist say not because what they say is
the law but because they have observed that that is the law. Kakuha kas difference? So you cannot say that is the norm according to Cassesi
but you can say that is the norm as observed, opined and evaluated by Cassesi. Because its hard to imagine that a person is the source of
international law. To put it differently ba.
It has been said and it has been asked in the bar exam many times that the principle of stare decisis is not observed in ICJ decisions. First
lets take a look at the legal basis for that. Is that true? Sir, you said it already. Ahh, ok but what is the basis for that? By the way what is your
understanding of stare decisis?
To be accurate at least in so far as the Philippines is concerned when we say decisions forming part of the judicial system we of course refer
to the decisions of the Supreme Court. So decisions of Court of Appeals and trial courts even after they have become final and executor will
not form as part of the law of the land. But forming part of the law of the land is not the idea of stare decisis. Just so I can make that
clarification, when we talk about forming part of the land we are only talking about Supreme Court decisions. But is stare decisis? Maayo pa lgi
ug nag assign ko ug case ana. If in one case we have a controversy and we brought that case to SC for example and on the process of
resolving that conflict the court made a pronouncement about our relationship whether we are partners or not in a business etc. And it so
happened that a case involving different issue but more or less the same facts but different issue, ok. Then what the SC said about our
relationship, lets say SC said that we are partners in the business so I dont owe you money because we are partners. So in another
controversy, that pronouncement by the court that we are partners will have to be considered as the law of the case between us. That is the
law of the case.

ould rather say the similar facts, similar


issues, should be similar issues as well but involving similar parties. Thats when our SC will say that the case before us is not novel. Diba
usually ing ana. In the year 1980 in the case of blah blah blah blah bah we have ruled that blah blah blah so on and so forth. In this case, the
cases of blah blah blah in 1980 and the doctrines proclaimed or pronounced therein are squarely applicable to the case. There is no reason
for us to depart from this ruling. In fact we warned counsels for the petitioners not to be hard-headed and do research before filing a case in
court. Stare decisis noh. Thats basically a common law concept but practiced in a civil law country as well. Although at the end of the day its
not, what you called this, a super hard law that the court will always be bound by its earlier decision. In any case, the court may perhaps
depart from an earlier ruling for a good cause or for a good reason. Let us not of course mention the possibility of graft and corruption but just
for good reason. Probably the same case, the same facts, the same issues but with little difference in some aspects and probably because of
a development at present, di ba. Pwede man na nga modepart because of that. Lahi to ang thinking sauna because then we look at the state
as more of really respecting Laissez Faire and so the state was acting as referee in the international market for example or economic forces
rather. But now things have changed. In the 1987 constitution we look at the state for example as more of parens patriae so may development
na. So they may perhaps begin from that.

402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 14

In ICJ decisions, theres no such thing as stare decisis. What is the legal basis? Is there anything in the statute of the ICJ that supports the
principle that stare decisis is not observed? Thats practically my question. (read Article 59) see? Only with respect to the parties and only in a
particular case. So even if two cases have practically the same issue, the ICJ is not bound. But in practice though, the ICJ cannot help but
invoke, well not really invoke but perhaps apply and mention to support its ruling in a particular controversy. It shouldnt be invoking otherwise
the stare decisis is being practiced. Its like the ICJ notes that in the earlier cases of..the ICJ has pointed out this and that... In this case,
practically stare decisis but it shouldnt be construed as the ICJ deciding a particular case because it is bound to decide the case in the same
way it resolved the controversy in the past. But the reality of course is that the ICJ cannot help but mention earlier rulings of the ICJ.
Another observation that we should take note is the ICJ decisions are independent of judicial decisions of international court tribunals such as
the ICC. Remember that there is no formal relationship between these tribunals. These are practically different and independent tribunals. But
then again reality as observed finds that the ICC for example finds it relevant to talk about ICJ decisions especially in the case of Nicaragua
vs. USA which had been invoked in ad hoc tribunals that have jurisdictions similar to ICC. in the pas we have International Criminal Tribunal
for Yugoslavia, ICT for Roanda, all these ad hoc international tribunals mentioned of self-defense, principle of intervention. All these taken
from Nicaragua vs. USA ICJ decision sya but these ad hoc tribunals have been applying it. Thats the reality. Theoretically of course you do
not have any formal relationship. And why should one international tribunal for example mention a ruling of another international tribunal? May
be this is perceived as an international tribunal mentioning a principle in a decision by another tribunal because this may perhaps be an
evidence of opinio juris, an evidence of state practice. And so they can use that, an evidence of state practice or evidence of opinio juris.
f the US Supreme
Court in New Jersey vs Delaware. And this is of course I think a very good observation talking about the nature of judicial decisions in
international law. If you are familiar with common law practice, that is basically the nature of the decision of the ICJ. Diba in common law, in
England for example, ang tawag nato sa mga law nila dili man civil law so walay statute nga nagprovide kung unsa particular law for a
particular controversy. But of their cases have been resolved by their courts on the basis of this peculiarity of the facts between the parties
involved.
Many of the cases have been resolved by their courts on the basis of these peculiarities of the facts between the parties involved. And so, in
fact, a case may be decided differently in another case involving different parties. Thats why it has been said that this law in England may
considered judge-made law, kinsay nag himo sa law? Ni evolve lang from their decisions. Havent you noticed that in common law countries
even in the US, partly civil law common law, but of common law tradition, they are fond of experimenting on legal principle, they want to test
case before the Supreme Court, kita dili man ta, well settled na na, we cannot change the thinking of the Court. Ex. Suing Mac Donalds as
the culprit for obesity among the youth. But that is good. They want to know the law but are also conscious on how to develop the law.

Justice Cardozos quote:


Other possible sources of international law
Acts of international organization
Soft Law
Equity
The River Meuse Case
There are other possible sources, what are these?
Babasanta:.......soft law
What is a soft law as distinguished from a hard law?
has no binding effect to the parties, they have yet to decide if they are to be bound by it
Largo: maybe they are not bound by it because they have not yet reached the stage of the treaty may already be binding, ?
Yes sir,
You are agreeing with me? What is legally binding? A treaty may be a hard law or a soft law?
a hard law sir
inani na lang, What is an example of a soft law?
General principles of law?
General Principles of law are other sources of international law. And in your outline its called other sources meaning not forming part, except
with equity which may still be argued as still forming part of general principles of law. Can you give an actual example?
Declaration, 1982, where it specifically states that it is a non-legally binding....

International environmental Law, class, is a new field of Public International law. Because it is just recently that states began to be concerned
about global warming, in the past we didnt have that concern, so environmental principles have not been considered customary international
law. States have just started to act together in a treaty, or convention, or any informal organization, usually in what we call, IGO, Intergovernmental Organizations. So states, come together, meet, come up with mutual understanding in certain areas and concerns, and mostly
environmental concerns, ex. Stockholm convention.
A good example of a soft law is a UN declaration. Universal Declaration of Human Rights. While these declarations are indeed principles of
law, yet states are not bound by the declaration, meaning they are not, if they do not obey, cannot make that as a basis for liability. These are
declarations only of certain norms, for states to follow, how? To enact legislations at the domestic level. Thus if it states that you should not
discriminate by reason of gender, if the Philippines fails to pass legislation that prevents discrimination on the basis of gender, or failing to
legalize same-sex marriage, there is no liability there. What you can do perhaps, is to lobby. That is soft law.
Ang binding law ra gyud, katong sa sources. In fact, some authors say, ang true hard law, CIL, Conventional law, mao gyud na ang hard law,
since its legally binding, non-observance of which has legal consequences. Soft law, pub opinion ra man na. Most of the time, you can invoke
sovereignty, but it will just be public opinion or just possible in your economic relationship,. Like perhaps the suggestion in the UN declaration,
there is a suggestion to adopt a democratic society, to protect freedom of expression. As a sovereign state, we can have a communist state.
Liable diay ko for choosing a communist state? Dili diba. That explains why these norms could hardly pass the test of Customary International
Law because of legitimate invocation of sovereignty among states. Mostly environmental law principles.
Equity is another.
What is this ex aquo et bono?
according to what is right or good
What is the rule here? When is it applicable to a controversy?
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 15

Art 38 (2) of the ICJ Statute: this provision shall not prejudice the power...........
What is the important condition? Justice, equity, dili na sila primary sources, daghan man na equity principles, estoppel, even prescription. If
possible, the general concept of fairness will be applied, is it possible that the ICJ will apply that? Yes, provided?
If the parties agree. What is the paramount consideration, consent of the state? Why? Because we talk of sovereign states.
So it may be possible in which equity may be allowed to override other rules, provided that the parties agree.
What is the distinction between custom and usage?
...........
Custom is International law. Usage is just a practice, but without opinion juris. Custom is with opinion juris, usage is without opinion juris. But
both are usage.
One more consideration, whether or not there is hierarchy in the sources of international law. That was previously the intention, as shown in
the preparatory work of the International Law Commission, but ended up to dividing the sources to primary and secondary. While there is no
hierarchy among sources, there is a consensus among states, that of these sources, jus cogens should be considered as always superior to
other norms.
So how do you solve a problem where a Customary International Law runs in conflict with another CIL, it seems that a new international law
had been developed to replace an old one. Akehurst mentions of the usual principle lex posterior derogate priori, lex speciali derogat legi
generali, basic principles in statutory construction, a later general law cannot supercede an earlier special law. But these are just opinions,
only guidelines, not rules.
LIBYA VS. MALTA
CASE CONCERNING THE CONTINENTAL SHELF
(LIBYAN ARAB JAMAHIRIYA/MALTA)
APPLICATION FOR PERMISSION TO INTERVENE)
Judgment of 21 March 1984
In its Judgment in respect of Italy's application for permission to intervene under Article 62 of the Statute in the case concerning the
Continental Shelf between Libya and Malta, the Court, by 11 votes to 5, found that Italy's request for permission to intervene could not be
granted.
The Court was composed as follows: President Elias Vice-President Sette-Camara; Judges Lachs, Morozov Nagendra Singh, Ruda, Oda,
Ago, El-Khani, Schwebel, Sir Robert Jennings, de Lacharrire, Mbaye, Bedjaoui; Judges ad hoc Jimnez de Archaga, Castaeda.
Judges Morozov, Nagendra Singh, Mbaye and Jimnez de Archaga appended separate opinions to the Judgment.
Vice-President Sette-Camara, Judges Oda, Ago, Schwebel and Sir Robert Jennings appended dissenting opinions to the Judgment.
Proceedings before the Court (paras. 1 to 9)
In its Judgment, the Court recalled that on 26 July 1982, the Governments of Libya and Malta jointly notified to it a Special Agreement
concluded between them on 23 May 1976 for the submission to the Court of a dispute concerning the delimitation of the continental shelf
between chose two countries.
In accordance with the Statute and the Rules of Court, the proceedings took their course having regard to the terms of the Agreement
between the two countries. The Memorials of both Parties were filed on 26 April 1983 and the Counter-Memorials on 26 October 1983.
Since the Court did not include upon the bench a judge of Libyan or Maltese nationality, each of the Parties exercised the right conferred by
Article 31 of the Statute to choose a judge ad hoc to sit in the case. The Libyan Arab Jamahiriya designated Judge Jimnez de Archaga
and Malta Judge Castaeda.

On 24 October 1983, the Registry received from the Italian Government an Application for permission to intervene under Article 62 of the
Statute. The Governments of the Libyan Arab Jamahiriya and Malta submitted written observations on this Application on 5 December 1983,
within the time-limit fixed for that purpose. Objection having been raised to Italy's application to intervene, the Court, in accordance with Article
84 of its Rules, held sittings between 25 and 30 January 1984 to hear the Parties and the State seeking to intervene on the question whether
the Italian Application for permission to intervene should or should not be granted.

Provisions of the Statute and Rules of Court concerning intervention (para. 10)
Article 62 of the Statute, invoked by Italy, provides as follows:
"1. Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request
to the Court to be permitted to intervene.

402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 16

"2. It shall be for the Court to decide upon this request."


Under Article 81, paragraph 2, of the Rules of Court, an application for permission to intervene under Article 62 of the Statute shall specify the
case to which it relates, and shall set out:
"(a) the interest of a legal nature which the State applying to intervene considers may be affected by the decision in that case;
"(b) the precise object of the intervention;
"(c) any basis of jurisdiction which is claimed to exist as between the State applying to intervene and the Parties to the case."
Formal admissibility of the Italian Application for permission to intervene (paras. 10-12)
Noting that the Italian Application complied formally with the three conditions set out in Article 81, paragraph 2, of the Rules and that it was not
filed out of time, the Court concluded that it had no formal defect which would render it inadmissible.
Statement of the contentions of Italy and of the two Parties (paras. 13-27)
The Court summarized the contentions advanced by Italy in its Application and oral argument (paras. 13-17). It noted in particular that the
legal interest invoked by Italy was constituted by the protection of the sovereign rights which it claimed over certain areas of continental shelf
en cause in the case between the Libyan Arab Jamahiriya and Malta. It also noted that the object of the intervention was to permit Italy to
defend chose rights, so that the Court should be as fully informed of them as possible, and so that it might be in a position to take due account
of them in its decision and provide the Parties with every needful indication to ensure that they do not, when they conclude their delimitation
agreement pursuant to the Court's Judgment, include any areas over which Italy has rights. Finally, the Court noted that according to Italy,
Article 62 of the Statute afforded a sufficient basis of jurisdiction in this case, which did not need to be complemented by a special jurisdictional
link between itself and the Parties to the case.

The Court then summarized the arguments put forward by the Libyan Arab Jamahiriya (paras. 18-24) and by Malta (paras. 25-27), both in their
written observations on the Italian Application and in their Counsel's oral argument.
Interest of a legal nature and object of the intervention (paras. 28-38)
In order to determine whether the Italian request is justified, the Court had to consider the interest of a legal nature which, it was claimed,
might be affected, and to do this it had to assess the object of the Application and the way in which that object corresponds to what is
contemplated by the Statute, namely to ensure the protection of an "interest of a legal nature", by preventing it from being "affected" by the
decision.

The Court recalled that in the case of an intervention, it is normally by reference to the definition of its interest of a legal nature and the object
indicated by the State seeking to intervene that the Court should judge whether or not the intervention is admissible. It had nonetheless to
ascertain the true object of the claim. In this case, taking into account all the circumstances as well as the nature of the subject matter of the
proceedings instituted by Libya and Malta, it appeared to the Court that, while formally Italy was requesting the Court to safeguard its rights,
the unavoidable practical effect of its request was that the Court would be called upon to recognize those rights, and hence, for the purpose of
being able to do so, to make a finding, at least in part on disputes between Italy and one or both of the Parties. Italy was in fact requesting the
Court to pronounce only on what genuinely appertains to Malta and Libya. But for the Court to be able to carry out such an operation, it would
first have to determine the areas over which Italy has rights and those over which it has none. It would therefore have to make findings as to
the existence of Italian rights over certain areas, and as to the absence of such Italian rights in other areas. The Court would thus be called
upon in order to give effect to the intervention, to determine a dispute, or some part of a dispute, between Italy and one or both of the principal
Parties, which would involve it in adjudicating on the legal relations between Italy and Libya without the consent of Libya, or on those between
Italy and Malta without the consent of Malta. Its decision could not be interpreted merely as not "affecting" those rights, but would be one
either recognizing or rejecting them, in whole or in part.

The consequences of the Court's finding, that to permit the intervention would involve the introduction of a fresh dispute, could be defined by
reference to either of two approaches to the interpretation of Article 62 of the Statute.
According to the first approach, since Italy was requesting the Court to decide on the rights which it had claimed, the Court would have to
decide whether it was competent to give, by way of intervention procedure, the decision requested by Italy. As already noted, the Italian
Government maintained that the operation of Article 62 of the Statute was itself sufficient to create the basis of jurisdiction of the Court in this
case. It appeared to the Court that, if it were to admit the Italian contention, it would thereby be admitting that the procedure of intervention
under Article 62 would constitute an exception to the fundamental principles underlying its jurisdiction: primarily the principle of consent, but
also the principles of reciprocity and equality of States. The Court considered that an exception of this kind could not be admitted unless it
were very clearly expressed, which was not the case. It therefore considered that appeal to Article 62 should, if it were to justify an intervention
in a case such as that of the Italian Application, be backed by a basis of jurisdiction.

According to the second approach, in a case in which the State requesting the intervention asked the Court to give a judgment on the rights
which it was claiming, this would not be a genuine intervention within the meaning of Article 62. That Article would not derogate from the
consensualism which underlies the jurisdiction of the Court, since the only cases of intervention afforded by that Article would be those in
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 17

which the intervener was only seeking the preservation of its rights, without attempting to have them recognized. There was nothing to suggest
that Article 62 was intended as an alternative means of bringing an additional dispute as a case before the Court, or as a method of asserting
the individual rights of a State not a party to the case. Such a dispute may not be brought before the Court by way of intervention.
The Court found that the intervention requested by Italy fell into a category which, on Italy's own showing, is one which cannot be accepted.
That conclusion followed from either of the two approaches outlined above, and the Court accordingly did not have to decide between them.
Since the Court considered that it should not go beyond the considerations which were in its view necessary to its decision, the various other
questions raised before the Court in the proceedings as to the conditions for, and operation of, intervention under Article 62 of the Statute did
not have to be dealt with by the Judgment. In particular the Court, in order to arrive at its decision on the Application of Italy to intervene in the
present case, did not have to rule on the question whether, in general, any intervention based on Article 62 must, as a condition for its
admission, show the existence of a valid jurisdictional link.

Protection of Italy's interests (paras. 39 to 43)


Italy had also urged the impossibility, or at least the greatly increased difficulty, of the Court's performing the task entrusted to it by the Special
Agreement in the absence of participation in the proceedings by Italy as intervener. Whilst recognizing that if the Court were fully enlightened
as to the claims and contentions of Italy it might be in a better position to give the Parties such indications as would enable them to delimit
their areas of continental shelf without difficulty (even though sufficient information for the purpose of safeguarding Italy's rights had been
supplied during the present proceedings), the Court noted that the question was not whether the participation of Italy might be useful or even
necessary to the Court; it was whether, assuming Italy's nonparticipation, a legal interest of Italy would be en cause, or was likely to be
affected by the decision.

The Court considered that it was possible to take into account the legal interest of Italy - as well as of other States of the Mediterranean
region - while replying to the questions raised in the Special Agreement. The rights claimed by Italy would be safeguarded by Article 59 of the
Statute, which provides that "The decision of the Court has no binding force except between the parties and in respect of that particular case".
It was clear from this that the principles and rules of international law found by the Court to be applicable to the delimitation between Ubya and
Malta, and the indications given by the Court as to their application in practice, could be relied on by the parties against any other State.
Furthermore, there could be no doubt that the Court would, in its future judgment in the case, take account, as a fact, of the existence of other
States having claims in the region. The judgment would not merely be limited in its effects by Article 59 of the Statute; it would be expressed,
upon its face, to be without prejudice to the rights and titles of third States.

Interpretation of Article 62 (paras. 41 16)


Reverting to the question as to whether or not an intervener has to establish a jurisdictional link as between it and the principal Parties to the
case, the Court recalled that it had already made a summary of the origin and evolution of Article 62 of the Statute of the Court in its Judgment
of 14 April 1981 on the Application of Malta for permission to intervene in the Tunisia/Libya case. The Court had found it possible to reach a
decision on the present Application without generally resolving the vexed question of the "valid link of jurisdiction" (see above) and no more
needed to be said than that the Court was convinced of the wisdom of the conclusion reached by its predecessor in 1922 that it should not
attempt to resolve in the Rules of Court the various questions which have been raised, but leave them to be decided as and when they
occurred in practice and in the light of the circumstances of each particular case.

Operative clause (para. 47)


For these reasons, the Court found that the Application of the Italian Republic for permission to intervene under Article 62 of the Statute of the
Court could not be granted.
ASYLUM CASE
Facts
The Columbian government gave asylum to a Peruvian citizen, Haya de la Torre, in its embassy. It claimed it had a right to do this both under
agreements between the states and in a local custom in the Latin American states.
Issue
Can the Columbian government offer asylum under local custom?
Ruling
No such local custom exists sufficient to be binding at international law.

The Court held that the party which relies on a custom of this kind has the burden of establishing that the custom exists in such a way that it
has become binding on the other party, through constant and uniform usage of the states.

402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 18

On the facts, very few states had ratified the conventions which Columbia relied on and there was significant discrepancy in the practice of
asylum. Because of this, the Court was unable to find a custom which met the standard in the North Sea Continental Shelf case.
A party which claims a custom exists must prove that the custom was established in such a manner that it has become binding on the other
party.

ANGLO NORWEGIAN FISHERIES


(United Kingdom v. Norway) 1951 I.C.J. Rep. 116. This case, begun by an application referring to the Declarations of Acceptance of the
Optional Clause in art. 36(2) of the I.C.J. Statute by the United Kingdom and Norway, asked the Court (a) to declare the principles of
international law to be applied in defining the baselines, by reference to which the Norwegian Government is entitled to delimit a fisheries
zone, extending to seaward 4 miles from those lines and exclusively reserved for its own nationals, and to define the said base-lines in so far
as it appears necessary, in the light of the arguments of the Parties, in order to avoid further legal difficulties between them; (b) to award
damages to the United Kingdom in respect of interferences with British fishing vessels outside the zone which the Norwegian
Government [may be] entitled to reserve for its nationals. The legitimacy of a 4-mile limit was not in dispute between the parties, but the
United Kingdom objected to the measurement of this from baselines otherwise than across the mouths of bays of a length exceeding 10 miles
and drawn between points which were sometimes low-tide elevations (drying rocks).
On 18 December 1951, in holding (10 to 2) that the method of delimitation employed in the Norwegian Royal Decree of 12 July 1935 was not
contrary to international law (so that, incidentally, no question of damages arose), the Court (1) found that the coastal zone involved in the
dispute was of a very distinctive configuration being very broken or indented, for the greater part of its length protected by an island fringe or
skjaergaard, and so high as to be generally visible from a long distance, the inhabitants deriv[ing] their livelihood essentially from fishing; (2)
similarly found that for the purpose of measuring the breadth of the territorial sea, it is the low-watermark as opposed to the high-watermark
which has been generally adopted in the practice of States; (3) held that geographical realities required that the relevant low watermark in
the region under discussion was that of the skjaergaard rather than that of the mainland; (4) held also that, of the three methods canvassed
for the application of the low-watermark rule, that of the trac parallele, following the sinuosities of the coast, was inapplicable to so indented a
coast, and that the arcs-of-circles method was not obligatory in law; (5) and that the rule confining the use of straight baselines to cases where
they do not exceed 10 miles in length although adopted by certain States both in their national law and in their treaties and conventions,
and [in] certain arbitral decisions has not acquired the authority of a general rule of international law; and (6) finally found that the baselines
actually selected by Norway had not violated international law, such having not departed appreciably from the general direction of the coast,
having legitimately taken into account peculiar local economic interests, and having conformed to a traditional pattern of delimitation conferring
something in the nature of an historic title generally tolerated by other States. The principles of the judgment, and to a great extent its
language, were adopted in the Geneva Convention on the Territorial Sea etc. of 29 April 1958 (516 U.N.T.S. 205), arts. 35, and were
reproduced in the U.N. Convention on the Law of the Sea of 10 December 1982 (1833 U.N.T.S. 3), arts. 57.

FISHERIES JURISDICTION CASE


(United Kingdom v. Iceland)(1973)
Procedural History:
NATURE OF CASE: Proceeding before the International Court of Justice.
Overview:
SHORT FACT SUMMARY: Iceland (D) claimed that a fishing treaty with the United Kingdom (P) was no longer applicable because of changed
circumstances.
FACTS:
-In 1961, the United Kingdom (P) recognized Iceland's (D) claim to a 12-mile fisheries limit in return for Iceland's (D) agreement that any
dispute concerning Icelandic fisheries jurisdiction beyond the 12-mile limit be referred to the International Court of Justice (I.C.j.).
-When Iceland (D) in 1972 proposed to extend its exclusive fisheries jurisdiction from 12 to 50 miles around its shores, the United Kingdom (P)
filed an application before the I.C.j. Iceland (D) claimed that the agreement was no longer valid because of changed circumstances since the
12-mile limit was now generally recognized and there would be a failure of consideration for the 1961 agreement.
Issue:
ISSUE: In order that a change of circumstances may give rise to a ground for invoking the termination of a treaty is it necessary that it has
resulted in a radical transformation of the extent of the obligations still to be performed?
Outcome:
HOLDING: Yes.
-In order that a change of circumstances may give rise to a ground for invoking the termination of a treaty it is necessary that it has resulted in
a radical transformation of the extent of the obligations still to be performed.
-The change must have increased the burden of the obligations yet to be executed to the extent of rendering the performance something
essentially different from that initially undertaken.
-The change of circumstances alleged by Iceland (D) cannot be said to have transformed radically the extent of the jurisdictional obligation
that was imposed in the 1961 Exchange of Notes.
Rule:
-In order that a change in circumstances may give rise to a ground for invoking the termination of a treaty it is necessary that it has resulted in
a radical transformation of the extent of the obligations still to be performed.
Analysis:
The original agreement between the parties provided for recourse to the I.C.J. in the event of a dispute. Icelands (D) economy is very
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 19

dependent on fishing. The Court did not reach the merits of Icelands (D) argument here, however, but rather dealt with the jurisdictional
issues.
LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS CASE
Advisory Opinion of 8 July 1996
On 15 December 1994, the United Nations General Assembly, by resolution 49/75 K, decided to request an advisory opinion from the Court
on the following question: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?". The request was
submitted to the Court on 6 January 1995.
In its advisory opinion, the Court first examined the question of its jurisdiction. Some states had argued that the question of the legality of
threat or use of nuclear weapons fell outside the scope of the Assembly's activities. The Court rejected this view, leaving open the question if
requests by the Assembly were restricted to the scope of its activities. It held that even if this were so, the jurisdiction of the Court was
established, because the request of the Assembly was closely connected with its general activities. Moreover, the political aspects connected
with the request did not deprive the question of its legal character. The Court emphasized its discretion to give an advisory opinion, but
stressed that refusals had to remain confined to exceptional cases. It found no compelling reason against delivering an opinion and rejected
views of states which had contended that the questions was framed in too vague and abstract terms, that there existed no specific dispute on
the subject matter and that a reply from the Court might adversely affect disarmament negotiations and the work of the United Nations.

In the view of the Court, several areas of international law contained rules possibly governing the threat and use of nuclear weapons. Among
these were human rights law, especially the right to life, which, however, did not permit conclusions independent from the law of armed
conflict. Equally, the prohibition of genocide covered the use of nuclear weapons only in specific circumstances. And international
environmental law did not contain rules on nuclear weapons, but also referred to the law of armed conflict. The most pertinent areas of
international law were thus the rules relating to the use of force and the law of armed conflict.

The law on the use of force, however, did not allow the Court to draw definite conclusions on the legality or illegality of the threat or use of
nuclear weapons. The Court stated that self-defence as an exception to the prohibition of the use of force did not refer to specific weapons,
but that, under Article 51 of the UN Charter, self-defence was subject to the conditions of necessity and proportionality. The latter did not in
itself exclude the use of nuclear weapons in all circumstances. But the profound risks emanating from such use had to be borne in mind by
states assessing the criterion of proportionality. Moreover, the mere threat to use nuclear weapons would be illegal if the use of force itself was
illegal.

The Court went on to examine if there existed specific rules in international law regulating the legality or illegality of recourse to nuclear
weapons per se. It first noted that the illegality of the use of certain weapons as such did generally not result from an absence of authorization
but from a specific prohibition. It did not seem to the Court that the use of nuclear weapons could be regarded as specifically prohibited by the
Hague Declarations of 1899, the Hague Regulations of 1907 or the Geneva Protocol of 1925. It rather found that more recent regulations
concerning possession, manufacture and testing of nuclear weapons showed an increasing concern in the international community with these
weapons, and that their future general prohibition might evolve. But neither from regional prohibitions nor the Treaty on the Non-Proliferation of
Nuclear Weapons emerged an already established rule of that content, as several nuclear-weapon states had specifically reserved their right
to use nuclear weapons in certain circumstances under these instruments. Likewise, no customary rule existed, because a clear opinio iuris in
favor of a prohibition was not to be found among the members of the international community. The Court pointed out that the adoption each
year by the General Assembly, by a large majority, of resolutions declaring the use of nuclear weapons illegal and requesting member states
to conclude a convention on their prohibition, revealed the desire of a very large number of states to establish such a rule. But its emergence
was hampered by the still strong adherence to the doctrine of deterrence.

The Court then examined whether general rules of international humanitarian law prohibited the threat or use of nuclear weapons. It identified
three cardinal principles of humanitarian law. The first was the distinction between combatants and non-combatants and the principle that
states must never make civilians the object of attack and must never use weapons incapable of distinguishing between civilian and military
targets. The second principle was the prohibition to cause unnecessary suffering to combatants. The Court found the third principle in the
Martens Clause as embodied in Art. 1 para. 2 of the Additional Protocol I of 1977, according to which in cases not covered by international
instruments, civilians and combatants remained under the protection of the principles of international law derived from custom, from the
principles of humanity and from the dictates of public conscience. The fundamental humanitarian rules nowadays constituted intransgressible
principles of international customary law. Moreover, the majority of rules embodied in treaties for the codification of humanitarian law had
already become customary law; but the Court left open to what extent these rules formed part of ius cogens. Despite the fact that the
conferences leading to the adoption of the Geneva Conventions of 1949 and the Additional Protocols of 1977 left nuclear weapons aside,
according to the Court, the rules of humanitarian law were in principle applicable to those weapons, as otherwise the intrinsically humanitarian
character of these rules for all kinds of warfare would be disregarded. Likewise, the principle of the inviolability of neutral states was of a
customary character and applicable to all international armed conflict, whatever type of weapons might be used.

The conclusions to be drawn from the applicability of these rules were, in the view of the Court, less clear. Certainly, having regard to the
unique characteristics of nuclear weapons and the risks associated with them, their use seemed scarcely reconcilable with respect for the
humanitarian rules. Nevertheless, the Court considered that it could not conclude that the use of nuclear weapons was unlawful in any
circumstance. It especially pointed to the fundamental right of every state to survival, and thus its right to resort to self-defence in accordance
with Article 51 of the Charter, when its survival was at stake. Furthermore, it considered the policy of deterrence, which had found strong
adherence. In view of the present state of international law as a whole, the Court was led to observe that it could not reach a definitive
conclusion as to the legality or illegality of the use of nuclear weapons by a state in an extreme circumstance of self-defence, in which its very
survival would be at stake.

402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 20

The Court finally emphasized that international law and the stability of the international order would suffer from the continuing difference of
views with regard to the legal status of nuclear weapons. The most appropriate means of overcoming this state of affairs was complete
nuclear disarmament. In the view of the Court, an obligation to achieve this result was contained in Article VI of the Non-Proliferation Treaty,
by which the parties undertook to pursue negotiations in good faith on a treaty on general and complete nuclear disarmament. This obligation
was reinforced by several resolutions of the General Assembly and reaffirmed by the Security Council.

President Bedjaoui and Judges Herczegh, Shi, Vereshchetin and Ferrari Bravo joined declarations; Judges Guillaume, Ranjeva and
Fleischhauer appended separate opinions; and Vice-President Schwebel and Judges Oda, Shahabuddeen, Weeramantry, Koroma and
Higgins dissented. The most common subject of the opinions was the inconclusiveness of the Court's findings. President Bedjaoui
emphasized that this reflected the current legal uncertainty on the status of nuclear weapons; in the case of extreme circumstances neither
legality nor illegality of their use could be determined. Judge Guillaume, however, interpreted the advisory opinion as implicitly recognizing a
right of states to use nuclear weapons in those extreme circumstances. Vice-President Schwebel criticized the Court for leaving the question
of legality open, thereby discarding the legal progress of the twentieth century and declaring that international law had nothing to say when it
came to the supreme interests of states. According to Judge Koroma, the Court should have performed its judicial function and decide the
case. Judge Higgins was also opposed to the finding of a non liquet as this was no part of the Court's jurisprudence. On the substantive issue
of legality, Vice-President Schwebel and Judges Guillaume and Fleischhauer expressed their opinion that international law permits the
conclusion that in extreme circumstances the use of nuclear weapons was legal. Judges Shahabuddeen, Weeramantry and Koroma stated
that even then the use of such weapons had to be regarded as unlawful. In particular, Judges Shi and Ferrari Bravo emphasized that the
policy of deterrence, in their view, did not have any legal value.

LOTUS CASE
The S.S. Lotus Case
P.C.I.J. Ser. A, No. 10, p. 4 (1927)

A French ship (the S.S. Lotus), collided with a Turkish ship in international waters, killing some Turkish sailors.
o The French ship then docked in Turkey.
Turkey attempted to try the French officer in charge of the Lotus for negligence.
o They found him guilty and sentenced him to 80 days in jail.
France went to the Permanent Court of International Justice (P.C.I.J.) and argued that Turkey did not have jurisdiction to try the
French officers, because they were on a French boat in international waters at the time of the accident.
o Turkey argued that since their nationals were killed, they had jurisdiction to try those responsible for the deaths.
o France argued that as a matter of customary international law, the flag of the vessel (in this case France) has exclusive
jurisdiction.
The PCIJ found that Turkey did have the right to try the French sailors.
o The PCIJ basically found that since the two ships were involved in the same accident, that both countries had concurrent
jurisdiction over the accident.
o The PCIJ found that customary international law gave France jurisdiction, but it didn't give them exclusive jurisdiction.
"Under international law, everything that isn't prohibited is permitted."
This case led to the Lotus Principle (aka the Lotus Approach), which says that sovereign states may act in any way they wish so
long as they do not contravene an explicit prohibition.
o The Lotus Principle was later overruled by the 1958 High Seas Convention.
Article 11(1) says that only the flag State or the State of which the alleged offender was a national has
jurisdiction over sailors regarding incidents occurring in high seas.

SOUTH-WEST AFRICA CASE


BARCELONA TRACTION CASE
Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain)

Procedural History:
Action for damages for the expropriation of a corporation.
Overview:
-Belgium (P) brought an action for damages against Spain (D) on the ground that its nationals as shareholders of the Barcelona Traction Co.,
incorporated and registered in Canada, had been seriously harmed by actions of Spain (D) resulting in expropriation.
-The Barcelona Traction, Light, and Power Co. was incorporated and registered in Canada for the purpose of developing and operating
electrical power in Spain (D).
-After the Spanish Civil War, the company was declared bankrupt by a Spanish court and its assets were seized.
-After the Canadian interposition ceased, Belgium (P) brought an action for damages against Spain (D) for what it termed expropriation of the
assets of the Traction Co. on the ground that a large majority of the stock of the company was owned by Belgian (P) nationals.
-Spain (D) raised the preliminary objection that Belgium (P) lacked standing to bring suit for damages to a Canadian company.
Issue:
Does the state of the shareholders of a company have a right of diplomatic protection if the state whose responsibility is invoked is not the
national state of the company?
Outcome:
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 21

No. In order for a state to bring a claim in respect of the breach of an obligation owed to it, it must first establish its right to do so. This right is
predicated on a showing that the defendant state has broken an obligation toward the national state in respect of its nationals. In the present
case it is therefore essential to establish whether the losses allegedly suffered by Belgian (P) shareholders in Barcelona Traction were the
consequence of the violation of obligations of which they are beneficiaries.
-In the present state of the law, the protection of shareholders requires that recourse be had to treaty stipulations or special agreements
directly concluded between the private investor and the state in which the investment is placed. Barring such agreements, the obligation owed
is to the corporation, and only the state of incorporation has standing to bring an action for violations of such an obligation. Nonetheless, for
reasons of equity a theory has been developed to the effect that the state of the shareholders has a right of diplomatic protection when the
state whose responsibility is invoked is the national state of the company. This theory, however, is not applicable to the present case, since
Spain (D) is not the national state of Barcelona Traction. Barcelona Traction could have approached its national state, Canada, to ask for its
diplomatic protection.
-For the above reasons, the Court is of the opinion that Belgium (P) lacks standing to bring this action.

Rule:
the state of a shareholders corporation has a right of diplomatic protection only when the state whose responsibility is invoked is the national
state of the company.
Analysis:
The Restatement of the Foreign Relations Law of the United States. 185, states that failure of a state to pay just compensation for the taking
of the property of an alien is wrongful under international law, regardless of whether the taking itself is conceived as wrongful. Such a wrongful
taking is characterized either as tortious conduct or as unjust enrichment.

THE RIVER MEUSE CASE


PARTIES
The Netherlands- Belgium.
DOCUMENT INSTITUTING PROCEEDINGS
Application of the Netherlands' Government, filed with the Registry on August 1st, 1936, based on Article 36, paragraph 2 of the Statute.
AGENTS AND COUNSEL
MM. Telders (Netherlands), de Ruelle, Delmer, Marcq (Belgium).
COMPOSITION OF THE COURT
M. Guerrero, President; Sir Cecil Hurst, Vice-President; Count Rostworowski, MM. Fromageot, de Bustamante, Altamira, Anzilotti, Negulesco,
Jonkheer van Eysinga, MM. Nagaoka, Cheng, Hudson, De Visscher, Judges.

The judgment was given by ten votes to three.


POINTS OF LAW
Interpretation of treaties (clear text; treaty as a whole, purpose, intention of the Parties, priority of object and intent over literal meaning) - Law
applicable (lex specialis derogat generali) - Treaties (effects, equality of the Parties; obligation to implement; control of implementation) General principles of law (equity; inadimplenti non est adimplendum) -Equity - Counter-claim - Damages - Judicial inspection.

Facts
On May l2th, 1863, Belgium and the Netherlands concluded a Treaty the purpose of which was "to settle permanently and definitively the
regime governing diversions of water from the Meuse for the feeding of navigation canals and irrigation channels. (1) Article I of this Treaty
provided for the construction below Maestricht, in Netherlands territory, of a new intake which would constitute "the feeding conduit for all
canals situated below that town and for irrigation in the Campine and in the Netherlands. (2)

The Belgian Government accepted the Treaty not without reluctance, in view of the fact that it provided for only one intake and that to be
situated in foreign territory.
When the economic development of the Belgian and Netherlands provinces of Limburg necessitated the enlargement of certain canals and the
construction of new works, the two States signed in 1925 a new agreement designed to settle the differences which had arisen in respect of
the construction programmes. After the rejection of this agreement by the Netherlands First Chamber, the Netherlands proceeded to construct
and complete the Juliana Canal, the Bosscheveld Lock and the Borgharen barrage. On its part, Belgium began the construction of the Albert
Canal, unfinished at the time of the judgment, a barrage at Monsin and a lock at Neerhaeren.

As no further progress could be made in the settlement of the points at issue between the two States, the Netherlands initiated proceedings in
the Court by means of a unilateral application, based on the declarations made by both the Netherlands and Belgium in which they accepted
the compulsory jurisdiction of the Court under Article 36 (a) of the Statute. Belgium, on its part, made a counter-claim.
In the course of the proceedings and at the suggestion of the Belgian Agent, which the Netherlands Agent did not oppose, the Court visited
the locality in order to see on the spot the installations, canals and waterways to which the dispute related and to witness practical
demonstrations of the operations of locks and installations connected therewith.

402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 22

Submissions of the Parties


The Netherlands ask the Court in the main to adjudge and declare that the works already carried out by Belgium were contrary to the Treaty of
1863, that the proposed works would be contrary to it and, consequently, to "order Belgium a) to discontinue all the works" listed in the
Netherlands' submissions and "to restore to a condition consistent with the Treaty of 1863 all works constructed in breach of that Treaty; b) to
discontinue any feeding held to be contrary to the said Treaty and to refrain from any further such feeding. (3)
On its part, Belgium asks the Court to declare the Netherlands' submissions ill-founded, as well as to adjudge and declare, in respect of the
counter-claim, that the Borgharen barrage was constructed in breach of the stipulations of the Treaty of 1863, that the Juliana Canal is subject
to the provisions of the Treaty and, finally, to reserve the rights accruing to Belgium from the breaches so committed.

Summary of the Judgment


Since the questions at issue are governed by the Treaty of 1863, the Court at the outset discards the application to the dispute of the general
rules of international river law in favour of the interpretation and application of the Treaty.
The Netherlands maintain that Article I of the Treaty, (4) which provides for a single feeder, situated in Netherlands territory, gives them the right
to supervise and control all the intakes, situated not only in their own territory, but also in Belgian territory. This contention necessarily implies
that "the Treaty of 1863 intended to place the Parties in a situation of legal inequality by conferring on the Nether-lands a right of control to
which Belgium could not lay claim. (5) But, in order to allow the existence of such inequality between the Parties to a treaty freely concluded, the
text of the treaty must say so in precise terms. In the absence of such terms, the Court rejects the Netherlands' submission.

While criticizing the construction by Belgium of the Neerhaeren Lock, the Netherlands do not invoke a specific provision of the Treaty. The
Court grants that the Treaty has brought into existence a certain rgime which results from all its provisions taken together and that,
accordingly, it forms a complete whole, the different provisions of which cannot be dissociated from the others and considered in isolation.
This is equally the case with Article I which must be interpreted together with the other Articles. In the light of this Article, thus interpreted,
neither the Netherlands' contention regarding the Neerhaeren Lock, nor the Belgian reply, can be accepted in its entirety. Furthermore, the
Court, after mentioning the construction by the Netherlands of the Bosscheveld Lock, refuses to admit the Netherlands' complaint about the
construction and operation of a lock of which they themselves set an example in the past.

With regard to the supply by Belgium to a section of the Albert Canal of water taken from the Meuse elsewhere than at Maestricht, the Court
considers that the origin of the water is irrelevant. Nothing prevents either Belgium or the Netherlands from making such use as they may see
fit of the canals covered by the Treaty, when the canals do not leave their own territory. Each of the two States is at liberty in its own territory
to modify such canals, to enlarge them, to trans-form them, to fill them in and even to increase the volume of water in them, provided that the
diversion of water at the feeder mentioned in the Treaty and the volume of water to be discharged therefrom is not affected. The same
reasoning applies to the Netherlands' criticism of the proposed supply by Belgium to a section of another canal of water taken from the Meuse
elsewhere than at Maestricht.

Having thus rejected all the Netherlands' submissions, the Court proceeds to deal with the Belgian counter-claims, the first of which concerns
the Borgharen barrage. The Court finds that the Treaty does not forbid the Netherlands from altering the depth of water in the Meuse at
Maestricht without the consent of Belgium, provided that neither the discharge of water through the feeder, nor the volume of water which it
must supply, nor the current in the Zuid-Willemsvaart is thereby affected. It is subject to this condition, and not at their arbitrary discretion, that
the Netherlands are entitled, under the Treaty, to dispose of the waters of the Meuse at Maestricht. With regard to the alleged interference, by
the criticized construction, with the navigability of that part of the Meuse common to both States, the Court considers that Belgium has not
produced any proof of it. In reply to the second Belgian submission, which relates to the Juliana Canal, the Court finds that the Treaty was
designed to regulate the supply of water to the canals situated on the left bank of the Meuse only. Thus, canals situated on the right bank,
such as the Juliana Canal, do not come under the regime of water supply provided for by the Treaty.

For these reasons, the Court rejects both the Netherlands' submissions and the submissions contained in the Belgian counter-claim.
The Hierarchy of the Sources of International Law
Jus Cogens
Art. 53 Convention on the Law of Treaties
Obligations Erga Omnes
What is Jus Cogens, and where do we find this?
Article 53: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of
the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character.
What is Erga Omnes Norm?
somehow related to jus cogens but specifically pertains to a specific act of a state should do to perform
It is more of a duty towards the international community, while jus cogens are peremptory norms, derogation of which is not permitted, so it is
a non-derogable. But if we talk of erga omnes norm, it is more of a duty towards the international community.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 23

If we talk of the obligation to punish international crimes, that is erga omnes norm. That these crimes are punishable, is jus cogens. Genocide
is punishable, that is jus cogens. You cannot put in the Consti or Treaty, that you allow genocide in certain cases, since genocide is jus
cogens. Duty to punish genocide is erga omnes. Duty to respect the right to self determation, is erga omnes. Thus if it is happens that in your
jurisdiction, there is a well-defined minority, you should pass a law that respects that minority, their culture. That is erga mones. But that the
right to self determination is worthy of respect, observance, is jus cogens. The right to self-determination is jus cogens.
In the Philippines, how do we treat international law? Are they legally binding norms? Or applicable in ceratin cases?
our country sir, as stated in the constitution, that generally accepted principles of international law form part of the law of the land
So, what does these GAPIL generally refer? Refers to what? Are we talking about Customary International law, conventions?
i believe that it does not distinguish on what type of international law, it forms part of the law of the land as long as they are generally
accepted
What about treaties, how do we make treaties part of the law of the land, if they are not part of international law?
as long as the Philippines is a signatory, and ratifies the treaty,
Then it becomes part of the law of the land?
Philippine Practice
Sec. 2 , Art. II, 1987 Constitution
Kuroda vs. Jalandoni
USA vs. Guinto
Holy See vs. Rosario
Reyes vs. Bagatsing
I believe you have studied this in Consti 1, the doctrine of incorporation and the doctrine of transformation.
Art II, is perceived as the incorporation clause. Do we transform or just incorporate them.
we incorporate them. If it is not a GAPIL, ex. a treaty, the congress has to pass a law.....
What are automatically incorporated are GAPIL?
I believe you have studied this in your Consti 1, the Doctrine of Incorporation and the Doctrine of Transformation. I understand Section 2,
Article II of the 1987 Constitution is perceived as the Incorporation clause. Do we transform international law or we just incorporate them
pursuant to Section 2, Article II of the 1987 Constitution?
You know what are incorporated automatically are of course generally accepted principles of international law. If the principle of law is not a
generally accepted principle of international law then in what way may be it incorporated as part of the law of the land. Well its not by
incorporation because our incorporation clause only says generally accepted principles of international law. That principle of law however may
still be part of law of the land if we transform them.
And by adopting incorporation clause, incorporation theory rather, it doesnt mean that we do away with transformation. We have in fact
transform international law or any norm for that matter as part of the law of the land. If not by incorporation it could be by transformation. And it
can be done by simply passing a statute covering the same subject matter or as evidenced by the fact that treaties when concurred by the
Senate will make the Philippines binding or bound rather by the terms and conditions of the treaty. And so if that treaty had been affirmed
rather concurred in by ratifying by the Senate to the extent that we are already bound by the terms and conditions of the treaty then that
principle of law have been transformed. So transformation of international law that perhaps does not partake of a generally accepted principle
of international law but its really controversial because were not using customary international law. Were not using principles of public
international law; we simply say generally accepted principles of international law as forming part of the law of the land.

Kuroda vs. Jalandoni


We had as early as 1935, 1973 and 1987 Constitution adopted generally accepted principles as part of the law of the land. So it is immaterial
whether the Philippines was a signatory to the Hague Convention because the Convention anyway covered customary international law of
making liable those persons whether military or civilian whove been guilty of planning and preparing or waging war convention and of
commission of crimes, that they are to be held liable or accountable therefore.
The rules and regulations of The Hague and the Geneva Convention form part of and are only based on generally accepted principles of
international law.
All right, so lets take a look at some cases, domestic ones, just to see how our Philippine Supreme Court used international law with respect
to the sources of public international law. So you take out of course this provision which you have already studied since first year, even in your
college years. You have the provision in Section 2, Article 2, which says that the Philippines renounces war as an instrument of national policy.
But lets talk about this next phrase which follows: adopts the generally accepted principles of international law as part of the law of the land.
So, this is what we have already called the incorporation clause, as opposed to what we call the doctrine of transformation.
Incorporation clause
So what is the significance of an incorporation clause in the Constitution? Well it simply means that Generally Accepted Principles of
International Law (GAPIL) law form part of the law of the land automatically, and without need of an affirmative act of the government. Is that
necessary? Not necessarily in the case of customary international law because once an international law has attained the status of a
customary international law by being a member of the family of nations, we are bound to observe any customary law, with or without domestic
laws, but note that our Constitution does not use the word customary international law. It simply says GAPIL meaning, to the extent that a
principle of international law may not have attained a status of customary international law, it may still form part of the law of the land because
of the incorporation clause. But when the norm is settled as a customary international law, you dont need an incorporation clause. That is of
course from the perspective of international law.
On the perspective of our local courts, then the effect of the incorporation clause, or the importance of the incorporation clause, is that it allows
the courts to apply GAPIL law because no less than the Constitution itself acknowledges that GAPIL automatically form part of the law of the
land. Thats the trouble with studying international law because you have to be conscious about your perspective. If your perspective is that of
the Supreme Court, its a bit different from the perspective of an international tribunal.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 24

Transformation
What about Transformation? There are two ways of making, or adopting international law as part of domestic law. One is by incorporation, or
when it would not require a positive act on the part of the government in order to have the international law part of the domestic law; the other
kind of making international law part of domestic law is by transformation. From the word itself, you transform an international law into a
domestic law. If the question is, which one is being observed by the Philippines, it would be wiser if you answered both, because
transformation is an option, while incorporation is there already. There is already a declaration by our Constitution of the incorporation of the
GAPIL. But is it possible to transform an international law as part of the law of the land? Well, for GAPIL, you dont need transformation
because its already deemed incorporated, but if the principle of international law does not have the status of a GAPIL, may it be considered
part of a domestic law? The answer is yes, by transformation, and transformation is an option, or a prerogative of the state. How is
transformation done? Because we transform, it would seem that we need for a positive or an affirmative act on the part of the government.
Which agency of the government may transform international law into domestic law?
Ralph answers: Legislative branch of government.

Sir: How? It can be done directly by Congress of course, by passing a law, just like what we did in our Rome Statute, the International Criminal
Court. If you look at the Rome Statute, it had been copied in toto by Congress just to show that we are implementing our commitment to the
Rome Statute. So the definition of genocide, the crime against humanity, war crimes, they have been copied in toto, so assume for example
that those definitions do not partake of customary international law, or do not partake of a GAPIL, but just the same, these have been
transformed by the direct act of Congress, or by passing a law.
Treaty
Second, you know that a treaty is a source of international law, as far as the contracting parties are concerned. You have also learned that the
substance of a treaty may or may not partake of the nature of customary international law. In many cases, treaty provisions are codifications of
customary international law but what if the substance of a particular treaty does not partake of the nature of customary international law or a
GAPIL? May it be transformed into our domestic law? Of course you know the answer to that is yes, when the Senate concurs in the
ratification of that treaty entered into by our executive department. So that is one way of making an international law part of our law, or being
transformed into our domestic law via the treaty-making process. Thats why it has been said that this could possibly be the backdoor to the
incorporation clause, or those norms that do not partake of the nature of a GAPIL, because these practices can still be considered part of our
domestic law via transformation and via the treaty-making process -- but indirect in a way. In contrast, passing a domestic law is a direct way
of transforming international law.

Case: Kuroda vs Jalandoni


So, what did the SC say in Kuroda vs Jalandoni? Kuroda was prosecuted after the Philippines created a War Commission through the
issuance of EO 68. The prosecution is for alleged acts of atrocities committed by Kuroda by participating in the planning, the preparation, and
the waging of war and aggression and the commission of offenses considered violations of international laws and the customs of war. This
involved torture, rape, acts on civilians and other acts of atrocities considered by customary international law as punishable. The argument of
Kuroda was that the Philippines cannot invoke that because it seems that the Philippines based its authority to prosecute him from the
provisions of the Hague Convention. Its a good argument because the Philippines was not a party to the Convention, so how can a state
invoke a provision of a Convention to which it is not a party? Basic is the rule that if you are not part of a Convention, then you are not bound
by the basic provisions of that Convention. And if you are not bound, then you cannot avail of the provisions. But Kuroda forgot of course that,
as I mentioned earlier, conventions and treaties may partake of the nature of customary international law or not. It so happened that the
prosecution of war crimes is a customary international law, and therefore with or without the Hague Convention, the provisions that are there,
which are of customary international norm, may still be invoked by the Philippines. The SC noticed that even Japan is a party to the Hague
Convention.

Case: USA vs Guinto


In USA vs Guinto, you have the Court saying that certain principles may be applied by the SC when they partake of the nature of customary
international law. There are two justifications: one, because of the incorporation clause, and second, even in the absence of an incorporation
clause, it is customary international law, and being a member of the family of nations, we are bound to observe customary international law.
And what customary international law is involved in this case? Its the principle of non-suability of the state; that the state cannot be sued
without its consent. You notice that there are reasons for the adherence to the principle of state immunity, and in international law, the primary
reason for adherence and observance of the state immunity principle is of course the principle of what? What principle in international law is
considered the basis for the observance of this rule? Lulu: We cannot assert a right as against an entity which is the source of such right.
Sir: Kabantay mo sa akong question nga premised in international law? Because domestically, there are several justifications for state
immunity, and one of them is what we call the positivist theory in your Consti 1. That since to sue is a right and that right obviously comes from
a state, therefore you cannot use this right as against the source of that right. But that is only applicable if it is a citizen of the Philippines suing
the Philippine state. But since were talking about international law, there must be another reason.

The character of being sovereign, thats one, and the principle of co-equality of course. Because if the state is compelled to be the subject of a
particular jurisdiction, then it would seem that that state is inferior compared to the state exercising jurisdiction over it. This is expressed in this
Latin term (wa ko ka gets) or all states are sovereign equals and cannot assert jurisdiction over one another. Of course, the consolidated
cases involved in USA vs Guinto involve the application of the principle of state immunity, and this involved the filing of local cases in
Philippine courts against the USA. This is a case where the Philippine courts will exercise jurisdiction over the USA.
What particular principle was applied, insofar as state immunity from suit is concerned? This one is of course customary international law. My
understanding in this case is that it involves principles governing contracts. What about contracts? More specifically, in determining the
application of the principle of state immunity from suit, it is customary international law to distinguish between governmental and proprietary
functions. If you were under me in Consti 1, I think I emphasized the fact that even if the state had entered into a contract, it does not
necessarily mean that it had already waived its immunity, that just because it has gone to the level of a private individual, then it becomes an
ordinary party to a contract. This is not necessarily the case, because its possible that the state enters into a contract under its governmental
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 25

function, in which case, the state immunity from suit may be applied. So, this distinction between two functions, proprietary and governmental,
for purposes of determining the application of state suability is a customary international law.
Case: Reyes vs Bagatsing
In the case of Reyes vs Bagatsing, Im sure you were asked to stud this in your Consti 2, since this is about freedom of expression. Have you
read the facts of the case? Its a classic clash between the freedom of expression, in particular, the freedom to peaceably assemble, and the
commitment to the Philippines of the Vienna Convention on Diplomatic Relations adopted in 1961 and to which the Philippines is a party. We
learned in Consti 2 of course that freedom of expression is not an unlimited right, as in any other right, and so one of the possible limitations is
of course our commitment to the international community. We have agreed to the international community that we will have to take the
appropriate steps to protect the mission against any intrusion or damage, or any event that would prevent the mission from being realized in
our country. The rallyists here, of course, needed to go near the US embassy, because part of their plan was to submit a paper calling for the
non-extension of the military bases agreement.

Incidentally, they were there within the proscribed distance of 500M from the gate of the embassy. It was considered by the SC as a lawful
restriction to freedom of expression. So our commitment to the international community had been affirmed as a valid limitation to our freedom.
If you have watched the movie Agro by Ben Affleck (segue about VCD 1 and VCD 2, joke, banter, happiness), the Iran hostage case was the
factual backdrop of that movie. One of the longest, if not the longest hostage-taking incidents that ever occurred. Dili lang local ha, pero
international, 14 months of hostage-taking, kay nangayo man ug asylum tong leader sa Iran nga considered to have committed crimes, and gigrantan man ug asylum ni US President Carter. So the rallyists and demonstrators, mostly students ha, they stormed the US embassy, and
held hostage the personnel and asked that this former leader of Iran be handed over to them, but which the US refused for so long until Carter
was replace by Reagan.
Namatay man pud ang leader eventually, so no more reason for the hostage-taking. As segue, one of the cases that you will be reading of
course is the liability of the host state in failing to protect the mission, because it was shown in the movie in fact, the local police in Iran did not
do anything to stop the rallyists. They were just there as observers. Actual to ha ang pagkadirect ni Ben Affleck. Siyay actor, siyay director.
The local police in Iran did not do anything to stop the rallyist They were just there as observers. Factual to ang pagka direct ni kuan, ah!!
kinsa ni?.. ben afflect xay actor xay director xay co-producer. Iya nalng tanan (haha) its a good movie sa asa na.Sa torrent! Bahala nka dha!
The provisions by the way as you will learn later on as we study diplomatic relations regarding the rights and obligations, privileges of consuls,
ambassadors and diplomatic bishops. You will learn there that the provisions in the Vienna convention on diplomatic relations were actually
taken from customary international law. So, with or without the Vienna convention on diplomatic relations that is customary law to protect the
mission and that duty, of course, pertains to the host state. The Court even stated that the Vienna convention is a restatement of the GAPIL. It
should be part of the law of the land. You also have of course the exemption, the privilege granted to foreign sovereign and in protecting their
right to acquire property by the receiving state which is also found in the Vienna convention on diplomatic relations. We bound ourselves to
grant diplomatic and foreign immunity from civil and administrative jurisdiction of the receiving state. We talk about the nuances of these
privileges later on. Just take note on the part of the Vienna convention on diplomatic relations, the substantive provisions partake of the nature
of GAPIL as declared by our Court.

THE HOLY SEE vs. THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati, Branch 61 and
STARBRIGHT SALES ENTERPRISES, INC.
G.R. No. 101949 December 1, 1994
FACTS: Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented in the Philippines by the
Papal Nuncio; Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate business.
This petition arose from a controversy over a parcel of land consisting of 6,000 square meters located in the Municipality of Paranaque
registered in the name of petitioner. Said lot was contiguous with two other lots registered in the name of the Philippine Realty Corporation
(PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned his rights
to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who of the parties has the
responsibility of evicting and clearing the land of squatters. Complicating the relations of the parties was the sale by petitioner of Lot 5-A to
Tropicana Properties and Development Corporation (Tropicana).
private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati, Metro Manila for annulment of the sale of the three
parcels of land, and specific performance and damages against petitioner, represented by the Papal Nuncio, and three other defendants:
namely, Msgr. Domingo A. Cirilos, Jr., the PRC and Tropicana
petitioner and Msgr. Cirilos separately moved to dismiss the complaint petitioner for lack of jurisdiction based on sovereign immunity from
suit, and Msgr. Cirilos for being an improper party. An opposition to the motion was filed by private respondent.
The trial court issued an order denying, among others, petitioners motion to dismiss after finding that petitioner shed off [its] sovereign
immunity by entering into the business contract in question Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the
privilege of sovereign immunity only on its own behalf and on behalf of its official representative, the Papal Nuncio.
ISSUE:
Whether the Holy See is immune from suit insofar as its business relations regarding selling a lot to a private entity.
RULING:
The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the
Papal Nuncio, has had diplomatic representations with the Philippine government since 1957 (Rollo, p. 87). This appears to be the universal
practice in international relations.
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 26

theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive
theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private
acts or acts jure gestionis
If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or
profit.
In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business, surely the said transaction can be
categorized as an act jure gestionis. However, petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for
profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent
failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not for commercial purpose, but for
the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. The right of a foreign sovereign to acquire
property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961
Vienna Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and entered into force in the
Philippines on November 15, 1965.
The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Petitioner did
not sell Lot 5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it almost impossible for
petitioner to use it for the purpose of the donation. The fact that squatters have occupied and are still occupying the lot, and that they
stubbornly refuse to leave the premises, has been admitted by private respondent in its complaint
Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public International Law and Transnational
Law, a person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his cause through diplomatic
channels.
Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims against the Holy See. Its first task is
to persuade the Philippine government to take up with the Holy See the validity of its claims. Of course, the Foreign Office shall first make a
determination of the impact of its espousal on the relations between the Philippine government and the Holy See (Young, Remedies of Private
Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919 [1964]). Once the
Philippine government decides to espouse the claim, the latter ceases to be a private cause.
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against petitioner is DISMISSED.

C. Treaties
1969 Vienna Convention on the Law on Treaties
Definition of a Treaty
Parties to a Treaty
Application of VCLT
Conclusion and Entry into Force of Treaties
Adoption of a text
Consent to be Bound by a Treaty
Means of Expressing Consent to be bound by a Treaty
Signature
Ratification
Accession
Entry Into Force
Reservations
Reservation to the Genocide Convention Case
Registration
Article 102, UN Charter
Application of Treaties
Territorial Scope of Treaties
Treaties and Third States
Application of Successive Treaties Relating to the Same Subject Matter
Interpretation of Treaties
Supplementary Means of Interpretation
Invalid Treaties
Provision of Municipal law regarding competence to conclude treaties
Treaties entered into by person not authorized to represent a state
Specific restrictions on authority to express the consent of a state
Coercion of a state by the threat or use of force
Other causes of Invalidity
The consequences of Invalidity
Termination of Treaties
Philippine Practice

Treaties
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 27

Can you answer the 1st question here Ms X?


May the rules found in the the Vienna convention on the law of treaties be applied in the following:
1. A dispute involving an agreement between state A and IMF world bank
X: No sir, because a treaty as an agreement between states involving(34:49)
Sir: What is your bases for saying so?
Based on the definition of a treaty, it is an agreement between states in written form
Sir: If we change IMF world bank to Australia, will you now say that dispute may be resolved through the application of the Vienna convention
on the law of treaties?
Yes, Sir provided there is a written agreement between the States
Sir; so the written agreement is enough?
X: And if it is also governed by International Law Sir
Sir: What do you mean by is governed by international law?
X: Provided that the provision does not violate International law

I understand that you have enumerated what are practically the elements of a treaty.
1. international agreement
2. entered into by states
3. in written form
4. to be governed by international law
Here, you will say that element number 2 is absent. So the Vienna convention on the law of treaties may not be applied because the IMF world
bank although it has a international legal personality, it may have a derivative legal personality at least or it may have a secondary subject of
international law but since it is not a State so this particular agreement is not to be governed by the Vienna convention on the law of treaties.
Sir: Ill accept that!
What if we change IMF world bank to Australia, and you said that it depends if the agreement is to be governed by international law. Did you
say that?
X: Yes sir!
Sir: So if its to be governed by international law, then Yes?
X: It must also be in written form Sir
Sir: Ah so it must be in written form and to be governed by International law
Ang imong interpretation that it is to be governed by international law is?
X: Provided that it does not violate international law
Sir Ah mao nay meaning sa to be governed by international law?

Later class, you will learn that a treaty has primarily two characteristics.
1. It may be an embodiment or codification of already existing customary international laws which is usually the case.
2. it may represent an evolution of a new customary international norm
So, you dont say that it shouldnt violate international law. The only correct statement would be that the treaty should not violate jus cogens
because that is one of the grounds of invalidating a treaty (article 53 vienna convention on the law of treaties). But if it is just an ordinary
customary international law, parties can enter into treaty provisions that are not necessarily in accordance with customary international law
and this will be interpreted merely as a new practice among States. Not that it violates customary international law.
Sir: Whats your other concern here?
I think the phrase that it is to be governed by international law also implies that the agreement between the State must not be governed by
municipal law.
Sir: So, any dispute shall be governed by international law. Okay!
Thats correct. When we say to be governed by international law , the resolution of a dispute arising out of the substantive provisions of the
agreement will have to be resolved by international law and not by domestic or municipal law because as you will see later on there may be
agreements entered into by States but are to be governed by municipal law by reason of the nature of their agreement.
Whats your other concern?
N.A (41:14)
I think that what is practiced nowadays is that a treaty must be written as opposed to being oral.
What else?
Maybe you will have an idea we go straight to letter B.
Can you answer the question on letter B?
X: I believe no sir because the Vienna convention on the law of treaties was enacted on 1954
Sir: Okay, so ana lang na xa? the mere fact that the treaty was concluded in 1954 and since the Vienna convention on the law of treaties took
effect in 1980 although it was , of course, drafted beginning 1969. So, thats it? Can you not, for example, take a cue from the question? When
I said in the question may the RULES found in the Vienna convention on the law of treaties be applied in the following. Why did I phrase this
in this manner? may the RULES found. Whats the difference between may the RULES found in the Vienna convention on the law of
treaties and may the Vienna convention on the law of treaties? Unsay kalahian class? (n.yaw2 c Ralph) Whats the significance in phrasing
the question in this manner? may the RULES found in the Vienna convention on the law of treaties be applied?
Can you help Ms. X? Is there significance?
X: In phrasing it like that may the RULES found in the Vienna convention on the law of treaties be applied, it pertains to specific rules of the
said treaty which is to be applied between States who have assented to such convention be applied to their relation Sir
Sir: When I said RULES, did I literally refer to the provision or did I refer to the RULE itself? Rule is different from a provision. Provision is that
you will find in the text of the Vienna Convention but Rule is different. Rule is a principle, not a section, not an article but the Rule in that
section or article.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 28

We still have to realize class that the Vienna Convention on the law of treaties is a treaty itself and do not forget the fact that a treaty may just
be an embodiment or codification of customary international law. Always remember your Nicaragua v. US, okay! dual character of a provision,
possible dual character of a rule found in a treaty. So, when I said , for example, Rules then it maybe that the rule as embodied in the Vienna
convention on the law of treaties may actually be a customary international law. The Vienna Convention on the law of treaties is a codification
of customary international law. Remember, it took effect in 1980 and it was drafted as early as 1969 and one author said by the way that even
for those provisions, I am talking about provisions now, even for those provisions found in the Vienna convention on the law of treaties that
may have not yet attained the status of customary international law at that time may have actually attained the status of customary
international law now. So, unsa tong tuiga 1969 so ginapraktis to sa mga signatories, more than a hundred signatories. Imagine, more than a
hundred States practiced that norm, even if during that time it may have not attained the status of customary international law, but it may have
attained such status now because of the long period of time, practice and universal practice. Liman ka more than a hundred States..Hmmm!
Kuha mo punto ko? So how do you resolve this now?

Now, let me go back to X.


X: not clear
Sir: In other words, my first answer Sir is we do not apply because apparently this was concluded before the effectivity of the Vienna
convention on the law of treaties. Article 4 provides for non-retroactivity of the provision. So, treaties entered into before the effectivity of the
Vienna convention on the law of treaties will not be governed by the Vienna convention on the law of treaties. But that is just the general rule.
Now, taking into consideration the fact that rules in Vienna convention on the law of treaties are customary international law then you may still
argue that this particular rule that is to be applied to this particular issue partakes the nature of customary international law then this treaty will
have to be governed by the customary international law. That is, of course, found in the Vienna convention on the law of treaties. But you dont
say that the Vienna convention on the law of treaties will be applied to this treaty because of the non-retroactivity principle. Kakuha mo class?
Mga bryt btaw mo dali rana makuha ninyo, simple rana. That is the reason why I asked this question. Is it possible to apply a rule in the VCLT
to a treaty concluded before its effectivity? Apparently, the answer would have to be yes because ang VCLT lage is just a codification of
customary international law. So, the rule is applicable but not the Vienna convention.
Letter C Ms X.
dli ma klaro (51:00)

Accession would require an application to be bound by the treaty. So without accession, how is it possible to apply the rules in the VCLT if the
treaty is entered into by non-parties?
Sir, going back to the earlierd ma klaro (52:30)
Sir: So they are States, they are members of the family of nations so they are bound by customary international law so even if they are not
members or parties to the Vienna convention the rule in all probability partakes of the nature of customary international law so it may be
applied to State A and State B. So, again it is not the Vienna convention that is made applicable but the rule that partakes of the nature of
customary international law.
Sir: Mr. X, are there treaties that are not necessarily themselves sources of international law? From Article 38 of the Statute of the ICJ, one of
the primary sources of international law for the ICJ to apply in contested cases before it are treaties and convention.
X: Yes sir, there are treaties necessarily themselves sources of International law. Those applicable only to host countries
Wait, when we say treaties of international law we say treaty is a source of international law for the contracting parties. If you talk about
bilateral treaties then treaty provisions between State A and State B are international law for the two of them.
If you will try to answer the next question, I think you can have an idea on how to answer the first question. They are related. United states
enterd into an agreement with the Philippines .. US naval forces are allowed to lease Sumilon Island in Cebu. In the north ba aw in the south
kita mo ana. For its naval and military exercises in the Philippines for 5 years. Is this a treaty? Why or Why not?
Mr. X: The agreement entered between the Philippines and the US is suppose to be governed by municipal law Sir: Why? Why municipal law
may be applied here? What law? What particular law? It is our civil law provisions on law, lease contracts so if there will be a question whether
or not USA violated the terms and lease agreement and so we look into our law and the applicable provisions on rescission, for example, pretermination we look back into our domestic law. The agreement is not to be governed by international law but domestic law. Meaning, it is not
covered by the concept of a treaty because the fifth element that it is to be governed by international law is absent but this kind of agreement,
by its very nature, is to be governed by domestic law. How do we call this kind of contract?If we speak of treaty that is to be bound by
international law we only refer to what we call as law-making treaty as opposed to contract-treaties. Even if the parties of a particular treaty call
the agreement treaty but it is not mandating for a rule of conduct to be observed by the States under international law then it may be just a
contract-treaty and therefore it may not necessarily be a source of international law. Most treaties when they are to be governed by
international law and if they are to partake of the nature of a law making treaty they must be more or less permanent in character. You
remember your ..

You remember your Sino British Declaration in 1984 where the United Kingdom declared that it will give possession of Hongkong to China by
July of 1997? It does not partake of the nature of a treaty in the sense that it is not permanent because after July 1, 1997, after the obligation
found on the treaty has been complied with, then theres no more declaration to speak of. So, contract treaties may be the source of
obligations of States but not necessarily sources of international law. So, you can see rights, you can see obligations in contract treaties, but
you dont see norms, you dont see laws, you dont see rules that will perhaps evolve and become customary international law. Lets take a
look at treaties then. Those are just questions that you should answer before delving into the studies of treaties. The process of course, you
will see how you experience them, that will be next week, the presentation.
Important points to consider. If we are to talk about treaties as for the parties to the Vienna Convention on the Law of Treaties, there are more
than a hundred signatories to the VCLT, then we have to read the VCLT. For non-parties to the VCLT, they will still be governed by practically
the same rules but not on the basis that they are parties to the Vienna Convention but on the basis that those rules are customary international
norm. So this entered into force on January 27, 1980. Under Article 4, you have correctly stated that as a rule the VCLT applies only to treaties
after entry into force, not after signing, not after the expression of the consent to be bound, but after entry into force, and therefore January 27,
1980 is the relevant date. The law of treaties, meaning not conventional law but customary international law of treaties and they are now
codified and as I have said the VCLT may now be treated as customary because of the long period of time from 1969, 1980 and up to the
present. And how many states adhere to the principles found there? More than a hundred! So if they have complied with state practice, the
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 29

objective element. Opinion juris? There have been a lot of decisions, domestically and internationally, that apply the provisions of the Vienna
Convention, so these are manifestation of your opinion juris. Later on, we will talk about interpretation of treaties and this one tells you that the
preparatory works, called travuo perpetua in treaties, conventions of the International Law Commission, are great sources or basis or
guidelines for interpretation.
And then you have the definition of the treaty. And as I mentioned earlier, from the definition, we can have the following elements: it should be
international agreement concluded with States, in written form, governed by international law. And I underscored the phrase in whatever its
particular designation because as you have already learned, they may actually come in various nomenclatures. I already mentioned that it
could be called, agreement, pact, understanding, protocol, charter, statute they dont mean a lot, these names. What is important is the
nature of the agreement. What nature? The definition! Those are the elements, international agreement entered into by States, in written form,
and governed by international law.
And as mentioned last time, the names only matter in the way they are initiated and the subject matter of treaties. Most treaties that are
institutional, we call them institutional treaties when they have an objective of creating an institution like a tribunal, a court like the ICJ, we call
it a Statute. The Rome Statute also created the International Criminal Court. Protocol usually is used when the treaty is simply an amendment,
a revision or a supplement to an already existing treaty and so on and so forth.
Then I asked that question, precisely because there is still a need for you to distinguish between a law-making treaty and a contract treaty.
Only law-making treaties are considered sources of international law as between the parties although contract treaties embody rights and
obligations of States, they are just rights and obligations, not norms, not rules, not law.
A treaty may just be a codification of already existing customary international law, or an evidence of an emerging customary international law,
or evidence of the practice of an emerging customary international law. You cannot say that a treaty will be invalidated by the mere fact that it
does not conform to customary international law, the only exception of course is when it violates jus cogens. And customary international laws
are not always laws, not always jus cogens.
What about agreements called treaties but not by States? We also have the Vienna Convention on the Law of Treaties entered into by
international organizations. So there is also a the Vienna Convention on the Law of Treaties for international organizations but in PIL we study
only the treaties entered into by States and we only deal with the 1969 VCLT.
Now, treaty-making is a process, of course and unfortunately the process is not that simple. What usually is the beginning or the precursor to
the creation or establishment of a treaty? Of course it has to start from a person, an entity. Im sure its not possible to readily come up with a
treaty simultaneously with all States coming together and create right away a treaty so we have for example the stages of proposal and
negotiation and drafting of the terms. A good example of this one is your Geneva Convention governing armed conflict. How did it start? If you
know, Henry Dunant, he was the first person awarded the Nobel Peace Prize. He founded Red Cross in 1863 or something. It was in 1864, I
think, that he asked for a meeting with the Head of the Department of Foreign Affairs of Switzerland and initiated the process of making
Switzerland the seat of a conference to draft a permanent rule on the rules governing armed conflict. That made him the first recipient of the
Nobel Peace Prize. So the first Geneva Convention on this matter was drafted on 1864, the second in 1901, the third in 1929 and the fourth in
1949.
You have to identify how a treaty is initiated. It could be from a person, a highly influential one. It could be an organization, usually an
international governmental organization. In this case could be a regional association or organization of States. Maybe for example in an
ASEAN summit, you can probably state there that a resolution has been passed whereby all concerned States to the Spratly Islands had
agreed to sit down and talk about the possibility of negotiating or come up with a treaty. And later on of course, there may be a case wherein
one State may offer a proposal. Although from the perspective of international law, it is not usually done because of mistrust as to the interest
of that initiating State. But in many case, it will be an international governmental organization that will initiate the drafting of a treaty.
Then you have adoption and authentication of the text of the treaty by the negotiating States. Then you have ratification of the treaty by
individual States.
But first, you will have to take a look at the capacity to enter into treaties. It is an inherent power or right of any State that it has the capacity to
contract or enter into treaties. It is a necessary consequence of Statehood. Thats why we studied State in Consti 1 because it is important to
distinguish a State from a non-state. There are important attributes found in a State that are not found in non-states and one of the attributes
of State is capacity to enter into treaties. It is customary international law that it is inherent in every State. Article 6 of the VCLT: Every State
possesses capacity to conclude treaties. In our State, we require concurrence by our Senate. The Capacity to enter into treaties is
inherent. It is recognized by Article 6 of the VCLT.
States are juridical entities and so they are represented by officers or representatives. The concern is who is authorized to represent the
State? General rule is that you must have full powers. What is the definition of full powers? It is a document. Article 2 (c) of the VCLT: full
powers means a document emanating from the competent authority of a State designating a person or persons to represent the
State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty,
or for accomplishing any other act with respect to a treaty.
Well, even ratification is an executive function, the more that it is an executive function to adopt, negotiate, authenticate, and express the
consent to be bound. And there are different ways by which a state can express its consent to be bound. The legislative department will come
in only where the constitution requires the participation of the legislative department. So this process becomes a political act. That full powers
must emanate from the chief executive. In domestic cases, this would be the Special Power of Attorney.
Article 7, 1 (b).
1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the
purpose of expressing the consent of the State to be bound by a treaty if:
(b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person
as representing the State for such purposes and to dispense with full powers.
Atty. Largo: Paquete Habana case talks about the objective element of state practice and this element would require also of how to
determine state practice, what is the element of such state practice. Example official act of govt, even decision of court, declaration of
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 30

president would be also source of the norm, treaties entered by statespractice through a particular norm look at the treaties entered by
state.
Issue in Paquete Habana case: Whether commercial fishing vessel be exempt from capture as prize of war. And the US SC no less
declare even US have acknowledge that part norm as customary. The US SC went over certain acts by US to prove that US itself believe that
norm. These are acts entered into by US that constituted state practice. You have for ex. King Louis of France started itremember the movie
Patriot- France US Alliancegiving of gift, that statue of liberty.
Nicaragua vs US: Norms involve
The leftist in Nicaragua succeeded in overthrowing the rightist government and thereafter as alleged by US supported the leftist government of
El Salvador against the legitimate government of El Salvador and El Salvador being an ally or having friendly relationship with US sought the
help of US and considered the act of Nicaragua in supporting the rebels in El Salvador as an act of aggression. And invoking a collective selfdefense, the US indeed helped El Salvador and initiated certain military and paramilitary activities in Nicaraguan soil which included the
making of mines in Nicaraguan ports, the flying of aircraft across or over the airspace of Nicaragua and another military activities which
Nicaragua claimed violated the principle of non- intervention and the prohibition against the use of force.
The US counter argued that principle found in the UN Charter cannot be made applicable to US because what appeared to be that they made
a reservation (Art 36 of the ICJ). But Nicaragua argued. The US said if prohibition against the use of force will be considered as customary
international law, it may have lost its force because that customary law cannot be transformed into a treaty law. And according to the ICJ that
is not correct because in fact customary international law can co- exist alongside with treaty norm so that even if the ICJ argued that the
reservation must be in fact applicable and therefore the UN Charter could not be applied to the US especially that El Salvador, a third party
that may be affected with the judgment, was not made a party to the case filed by Nicaragua.
And so it was the ICJ said, that well even if the UN Charter will not be applied, customary international law can be applied to the United States.
And the same customary law that prohibits the use of force will give you this information.
Principles declared in Nicaragua case:
General customary international law must be determined by the general practice of the states and not just by the states party to the dispute
before the ICJ. Opinio Juris may be deduced form the attitude of the parties concerned and that of states certain to General Assembly
Resolutions. General Assembly Resolutions, we are talking about the general assembly resolutions of the UN, which is its largest organit is
the assembly of all the members of the UN. Every time there maybe resolutions that should be treated as the manifestation of the belief of
member states towards a particular norm found in that General Resolution so that if the General Resolution for example says use of force
should be prohibited then, because General Resolution is a product of the General Assembly, then that must be considered as the expression
of the member states. And that expression translates into the belief that that norm is binding otherwise it would not be stated in a resolution of
the UN.
What is important in opinio juris is the belief that it is a binding law. Practice, in fact is irrelevant if it is not coupled with the belief that the law is
practiced because they believe that it is binding. Even if the practice is 100% practice by the states but it is practice by reason of convenience,
by reason of protocol just a practice not out of legal duty to practice the same is not binding.
General Resolutions are full indicators of the belief. Then the prohibition of use of force is jus cogens according to the ICJ. Principle of nonintervention is customary international law and not affected by treaty stipulations. And as I have discussed earlier, customary international law
can co-exist alongside with treaties. And quoting the ICJ in this case, it said even if the customary norm and the treaty norm were to have
exactly the same content, this would not be a reason for the court to hold that the incorporation of customary norm into treaty norm must
deprive customary law to be deprived of its applicability as distinct from that of a treaty norm.
Citing Continental Shelf cases, ICJ opinioned, it is of course axiomatic, it is immaterial for customary international law to be looked for the
actual practice and opinio juris of states even though multi- lateral conventions may have important role to play in recording and defining rules
deriving from customs. Although, of course, multi-lateral conventions or treaties, when they for example do not follow customary international
law then that may perhaps an attempt on the part of the states to generally establish a new norm, if it so happen that it is different. But if it is
just the same then it has no effect at all It is just another belief that it is a binding law.
What constituted proof of opinio juris in Nicaragua case about prohibition of use of force and non- intervention?
Resolution 2625 entitled 'Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations'.
Resolution 3314 a Definition of Aggression it may be considered to be agreed that an armed attack must be understood as including not
merely action by regular armed forces across an international border, but also 'the sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to' (inter alia) an actual
armed attack conducted by regular forces, 'or its substantial involvement therein'.
Automatic submarine contact mines of 18 October 1907(the Hague Convention No. VIII) provides that 'every possible precaution must be
taken for the security of peaceful shipping' and belligerents are bound 'to notify the danger zones as soon as military exigencies permit, by a
notice addressed to ship owners, which must also be communicated to the Governments through the diplomatic channel' (Art. 3).
Neutral Powers which lay mines off their own coasts must issue a similar notification, in advance (Art. 4). It has already been made clear
above that in peacetime for one State to lay mines in the internal or territorial waters of another is an unlawful act; but in addition, if a State
lays mines in any waters whatever in which the vessels of another State have rights of access or passage, and fails to give any warning or
notification whatsoever, in disregard of the security of peaceful shipping, it commits a breach of the principles of humanitarian law underlying
the specific provisions of Convention No.VIII of 1907.
resolution of the Sixth International Conference of American States condemning aggression (18 February 1928) and ratification of the
Montevideo Convention on Rights and Duties of States (26 December 1933), Article 11 of which imposes the obligation not to recognize
territorial acquisitions or special advantages which have been obtained by force. United States acceptance of the principle of the prohibition of
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 31

the use of force which is contained in the declaration on principles governing the mutual relations of States participating in the Conference on
Security and Co-operation in Europe (Helsinki, 1 August 1975), whereby the participating States undertake to 'refrain in their mutual relations,
as well as in their international relations in general,' (emphasis added) from the threat or use of force.
Even if the US did not sign the Montevideo Convention, this should be proof of the belief of the states to prohibit the use of force especially if
we consider the membership of a particular convention. So you have to take this all together and the ICJ will adjudicate whether or not there is
in fact a general practice and that this general practice had been done because the states believe them to binding norms.
Libya vs Malta
This just tells you that the rules regarding EEZ had been considered already as customary international norm. In the past there had been
issues whether or not a particular delineation would be considered as customary international norm, the establishment of United Nation
Convention on the Law of the Sea(UNCLOS, there had been the establishment of certain customary international norm.
And then you were asked to talk about Asylum case. It was argued that being a grantor of asylum, it has the prerogative to determine the
nature of the offense, whether or not it was covered by its (Havana)Convention. And there was opposing evidence of that principle practiced
by Latin American States but the ICJ was not convinced that there is such a practice especially considering that it was a regional custom,
greater uniformity is demanded of the states practicing the alleged custom.
So we go to this concern. May a State validly exempt itself from the application of customary international laws? Are all States bound therefore
of customary international law? Is there such a thing as majority rule in international law?
Mr. J: Yes, Sir. It depends on what customary international law we are talking about. If its a jus cogens norm, then it cannot validly exempt
itself but if it is not jus cogens then perhaps it can as when the State parties enter into a treaty and that treaty establishes a regime which is
different from a customary international law.
Sir: Ah so you were saying for example, States A and B will enter into a treaty that provides for terms and norms that do not conform to
customary international law then at least as for the parties to that treaty they are bound by that practice and that practice is not in accordance
with customary international law. Ok. If it is jus cogens, it is non-derogable. No state is permitted to violate that. Any other situation where a
state may exempt itself from customary international law assuming the international law is not a jus cogens?
Mr.J: Doctrine of Persistent Objector. If there is a custom among states that a state does not conform or shows deliberate acts resistant to and
non-conforming to that custom then such custom will not apply to that state.
Sir: So if a country exempt from customary international norm what is needed is simply to disagree to the practice.
If you will not observe a customary international law you are not a persistent objector but a violator of customary international law. You
become persistent objector and may be exempt from observing such customary international law if from inception of the formation of
customary international law, (So wala pai customary international law kay i-form pa mn xa), you had already persistently objected to that
practice. So that in case that practice had already ripened into a customary international law then you will not be bound by that, unless that
customary international law has reached the status of jus cogens, in which case even if you objected to it from the beginning you are still
bound to observe such norm.
But later on we will also learn that even the establishment of jus cogens is controversial in public international law. But the concept of jus
cogens of course is just found in the treaty, VCLT.
In any case, that is what we call Persistent Objector Doctrine.
In the Third Restatement US, it is called Persistent Dissenter.
US also believed that there must perforce be objections from the beginning before that norm had already ripened into customary international
law. What happened in this UK vs. Norway? This involved a controversy which arose from particular practice of Norway in delineating its
baseline. Apparently Norway delineated its baseline on the basis of?
Remember your basic Consti I, national territory, Under UNCLOS 1982, in determining your territorial sea you first have to identify your
baseline. This baseline may be established by applying either:
a) straight-line method which is applicable in archipelagic state or
b) low-water mark baseline where you follow that low-water mark and that is where you start counting your 12nm in determining territorial sea.
Since it is hard to apply low-water mark method in archipelagic state, UNCLOS permitted certain states to apply straight line method which
requires delineation of the baseline by creating an imaginary lines connecting the outermost points of the archipelago. In this case of Norway
its base, its coast is deeply indented.
According to Norway it is to its advantage it will not to apply strict low-water mark because it will only have very limited internal waters and it is
in fact also hard as because of that deeply indented coastlines. Siguro dunay mga curvatures na grabeh kaayu nga kung imo nang i-follow,
ang mo-come up na 12nm wala pa ka extend farther the natural contour or formation of coastline.
What is the argument of UK?
Mr. J: UK contended that 10 mile limit rule was contrary to customary international law but ICJ said that because Norway was persistently
objecting to the 10mile limit rule then it is exempted from the application of that rule.
Sir: so, the ICJ ruled that this straightline baseline method has been commonly practiced. But remember that this ws discussed by ICJ in
1950s wala pa ang UNCLOS. Indeed by dispute on how to delineate the baseline but now settled na na by UNCLOS. ICJ said that if UK
wanted Norway to adopt the 10mile rule rather than using the straight baseline method, assuming that this was the customary international law
because the ICJ said that what appeared to be customary international law was the straight line method, it cannot be imposed upon Norway
because it has persistently objected to the practice.

402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 32

And this case of UK vs. Iceland, principle of rebus sic stantibus. (ObliCon) Legal and physical impossibility to perform an obligation in the
contract by reason of sudden material change of circumstance that renders the obligor unable to perform the obligation the normal way or as
expected under the contract. So anyone can seek exemption from complying with the obligation.
In relation to treaty obligations; Even if assuming, it is not mentioned by VCLT, since it is a CIL that is still an exemption to the compliance of
treaty obligation. But of course, in UK vs. Iceland, ICJ did not find the circumstances warranting the application of Rebus Sic Stantibus.
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapon. How general assembly resolutions become relevant in determining
opinio juris. These are clear expressions of how states think about a norm. These are expressions of their belief that the norm is binding and
so for example in this cse, how did the ICJ render an opinion on the matter?
Mr. J: ICJ looked at the different treaties that would show any prohibitions to the use of nuclear weapons but ICJ failed to find express
prohibitions of its use. So ICJ looked into CIL and it examined the resolutions adopted by UN General Assembly but ICJ still failed to find it.
They did not definitively rule that the use of nuclear weapon was illegal.
There was a parallel principle of self-defence, doctrine of deterrence.
States were divided on their perception on the legality of the use of nuclear weapon.
Sir: So, this is a good illustration on how opino juris or state practice will have to be evaluated. How did ICJ do this? ICJ asked the questions,
1) Has there been a treaty or convention allowing the threat or use of nuclear weapon
2) Has there been treaty or convention allowing it?
3) Has there been a treaty or convention disallowing it?
ICJ voted. Out of 15 justices only 14 voted.
On the principle that there is indeed either customary or conventional customary international law, any specific authorization for the threat or
use of nuclear weapon? Is it allowed by CIL or at least by treaty or convention?
ICJ: No CIL, no treaty also that allows or permits the use or even the threat of the use of nuclear weapon
But they are a little bit divided on the issue that neither is there in a customary nor a conventional international law any comprehensive and
universal prohibition on the use of nuclear weapons. Maybe those that said that there are conventional International Norm that prohibit maybe
invoked a provision on UN Charter prohibiting the use of force in general and that the use of nuclear weapon should be considered a use of
force.
They were also unanimous on that principle that the threat or use of force in by the means of nuclear weapon contrary article 2(4) UN Charter
which pertains to the prohibition of the use of force, and fails to comply with the requirements of article 51, [self-defense (individual or
collective): a) there should be unlawful aggression; b) since self-defense is expected to be an instant reaction on the part of the state, they
have to report to UN security council, all the things that they are doing in the meantime that the UN security council has not taken steps to
address the threat by the aggressor.
Simple story: if mo.violate sa article 2 and cannot comply with article 51, then it is Unlawful. This is obvious.
Unanimous also: that the threat or the use of nuclear weapon should be compatible with the requirements of international law applicable to
article 2
3 laws applicable in international law:
Laws of peace
Laws of War
Laws of Neutrality not engaged in war
Under the laws of war, the treatment of nuclear weapon: threat of the use or the use itself: the principle is that it should be compatible with the
requirements of international law and with international humanitarian law and including the treaty obligations dealing with nuclear weapons.
That it should be compatible is obvious. This principle does not say that it is compatible. It simply says it should be compatible. Why is it
relevant in IHL? Because a lot of principles that may be applied to the use of nuclear weapon. One of it is the principle of proportionality in IHL.
And the kind of weapon used is relevant in determining the proportionality. The principle that the use of nuclear weapon should conform with
IHL standards is clear.
Divided: (highly controversial. ICJ was not definite on its pronouncement.) While the threat or the use of nuclear weapons will generally be
countered by the rules by itself, that it would generally .. The court cannot conclude deliberately whether it would be lawful or even unlawful in
the extreme circumstance in the sense that the very survival of the state is at stake.
Remember common law as opposed to civil law. Civil law, everytime you solve a controversy, a civil law thinker think first of statutes, then
jurisprudence, then perhaps practice and tradition. In common law countries like England, they dont look for statutes right away, a case is
lifted differently from all other cases. A common law country, the law really evolves a lot. Possible that one thing is decided in different manner
and stare decisis is not as strictly applied and so common law is a judge-made law.
International law may also be likened to a common law according to Justice Cardozo. Instead of saying judge-made law, it is state-made law.
Positive, through enactment by practice. Remember, CIL how it is formed, state practice mn. So it is hard to come up with principle that will
foreclose the possibility of development in international law and relating rule less than the most important right of all states- right to selfpreservation unya himo-an lang nimo xa ug strict na standard? Awh, ingon ang ICJ, wah. Kani ha, di ta klaro ani ha. It involves the right to
self-defence, maybe, probably, welcoming the idea that it is the only way that the state may be able to defend itself through the use of nuclear
weapon that it may be lawful. Do you subscribe to that? Thats the beauty of CIL because you can really come up with your own thinking and
probably we can later on one of the highly recognized publicist, ha. And your work will be considered a subsidiary means of determining the
existence of international law, hastang ngilngiga! ^_^
Nuclear weapons and the Right to Self-defense
FRANCE vs TURKEY
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 33

This case of France vs Turkey, is very relevant to the opinion of the ICJ on the legality of the threat for the use of nuclear weapons. Kay unsa
man tong mga declarations? This one, restrictions upon the independence or sovereignty of states cannot be presumed. Mao nay
basis maong dili maka come-up og definite opinion ang ICJ on the validity of the use of nuclear weapon. Whats the thinking of an international
tribunal, whether ICJ or any intl tribunal for that matter, if we are to determine whether a particular act of a state is valid or not? We look for a
customary law; we look for a conventionaI international law, if you see nothing about it, then you will not pass judgment on the validity or
invalidity of the practice of that state. Restrictions upon the independence or sovereignty of states cannot be presumed. Mao bitaw mangita
gyud kag clear evidence of the prohibition against it. Clear evidence of the norm or practice against it. Asa mana nimo pangita-on?
Customary international law. Later on, we will talk about publicists, jurists thats where you can perhaps get evidence of the practice. And
then you will have to look into treaties or conventions. If you dont see anything from there that prohibits the practice, whats the thinking? You
cant say that its lawful or unlawful. Mo ingon lang gyud ka nga it cannot be prohibited because theres no customary intl law or conventional
intl law that prohibits it. Is it lawful or unlawful? Di sad ka ka-ingon, di lang siya prohibited.

What happened in this case, kay kini bang mga French officials ni traverse(?) *dili gyud klaro guys, sensyaaa!* pa gyud sila sa
Constantinopole sa Turkey. Maybe while on their way to turkey, ga study sila sa jurisdictional rule on crimes committed on board a merchant
vessel on high seas. Pag basa nila, ahh high seas, walay maka exercise og jurisdiction except the flag state.
What is a flag state? Its the state where the ship or vessel is registered. Kani siya nga vessel, naka-register ni sa France. Flag state niya is
France. Ingon sila, ahhh, moadto lage ta didto, di lage ta hilabtan. France will have exclusive jurisdiction on what will happen on high seas.
Asa ka nga gi dakop? Gi prosecute. France objected to the exercise of jurisdiction of Turkey because indeed the vessel was registered in
France and that therefore the flag state principle will apply. Gi unsa mani sa ICJ?
What was the issue? WON a particular state can exercise jurisdiction over acts committed outside of the territorial jurisdiction of that state?
PCIJ said: Whether to say it is limited or not, we have to look for customary or conventional intl law that prohibits the state from exercising
jurisdiction outside its territorial jurisdiction, kay kung naa na sa conventional intl law, ato i-check kung member ba ang Turkey. Otherwise, ato
sang i-check kung customary intl law bana siya. Unsa ato ng gipangita? A norm that says a state cannot exercise jurisdiction over acts
committed outside its territorial jurisdiction. Unsa may nakit-an sa PCIJ? WALA. In fact, on the contrary, gina practice man gani nang pag
exercise og jurisdiction by states even for acts committed outside.
In our case for example, we adopt EXTRA-TERRITORIAL JURISDICTION, even in our Criminal Law. Article 2 of our RPC - Acts committed
by our ambassadors outside and in line with their functions, maka exercise man tag jurisdiction. For certain crimes like counterfeiting of coins,
naa tay jurisdiction. And we are not the only state doing that. It is also practiced by many states. So dili ka ka-ingon nga naay Rule or Principle
prohibiting the exercise of jurisdiction by a state for acts committed outside. Mangita ka dapat og customary or conventional intl law that
prohibits the practice para ka maka ingon nga it shouldnt be allowed. Nya wala man.
Nya sir, unsa man diay nang principle nga ang flag state mao naay exclusive jurisdiction? Korek na siya! (siyay ni ask, siya rapod ni tubag.
Nice ka sir! Hehe) That is the principle adopted by all states in the world meaning under the principle of monopoly of power, kita, states,
mura bag ni ingon ang PCIJ i-consider ra gud na ang vessel nga state. Okay. I-consider ang vessel as state. Kung State A na siya for
example, diba ang ruling kay State A exercises exclusive jurisdiction over acts committed within its territory. Ingon ang PCIJ, korek mana! But
that doesnt mean that other states cant exercise jurisdiction in their place over acts committed outside. Kakuha ka class? Klaro mana!
(hmmmmmm)
But if we talk of acts committed ON the vessel, aw lahi na siya class. Naa tay gitawag nga Extra-Territorial Jurisdiction naa sad tay gitawag
nga Subjective or Objective Territorial Jurisdiction - where the crime was committed or where it was started, pwede nang naay jurisdiction.
A classic situation: Border sa States. Unya ang killer (nag dala daw og sniper) naa sa state A. Ang object sa iyang crime tu-a sa State B. A
classic example where State A or B may exercise jurisdiction. Depende na siya sa law sa state involved. Kung mo ingon ang State A nga even
though the effects of the crime naa sa B but the commencement of the acts naa sa State A and it can exercise jurisdiction then it should be so.
Wala may international law whether conventional or customary that prohibits that. You dont allow the state to practice that if there is an intl
law that prohibits that, unya kay WALA MAN.
SOURCES of PIL:
Treaties - as a rule is a source of PIL insofar as the contracting parties are concerned. Then well prably say that what if the SUBSTANCE of
the treaty/convention partakes also of the nature of CUSTOMARY Intl Law? Then, NICARAGUA vs US said that even if it had been
transformed into a Treaty Law, that status of it as CUSTOMARY intl law still exists. And in that, as we will study Phil practice on sources of
PIL, SC pronounced in one case that even if the state is non-member to the convention, it still may be bound by the provision/s of the
convention if such provision/s partakes the nature of a CUSTOMARY Intl Law.
General Principles of Law What is GPL and what does it constitute? Still controversial even up to this time. Under the ICJ Statute, it was
only considered as recognized by the civilized nations. There was an article talking about whether to treat GPL as NOT a source of PIL but
only when it is applied by the ICJ. Gi tawag na nila og Transmutation. Ni transmute ba ang GPL into an Internatinal law. So therefore, dili na
nimo siya i-treat og Intl law until the ICJ applies it. Unlike sa Customary intl law nga whether its applied or not, IT EXISTS. And as far as
conventions are concerned, whether the ICJ will apply it or not, that is INTERNATIONAL LAW as far as the contracting parties are concerned.
But when you talk of GPL, those are dormant rules. They are not actually international law principles but they will be transmuted by the ICJ
and when applied to a particular controversy then they become PIL insofar as that CONTROVERSY is concerned. (Ingon si sir, iya ra daw
nang Opinion. Iya rang interpretation of what GPL is) Honestly, that makes sense. Why? Usually, awa ha, usually, these GPL are based on
LOCAL or DOMESTIC State practice. Nya if you have read the preparatory works to the drafting of Art 38(1) of the ICJ, that is a good source
for understanding/interpreting provisions of the ICJ Statute and the UN Charter in general. The Intl law Commission explained the reason for
putting the 3rd source, they just call it GENERAL PRINCIPLES OF LAW because they knew that there may perhaps be controversies where
there is NO treaty law that may be applicable or NO customary law applicable. Then they said, wala rabay laing intl tribunal nga i-consult.
Karon naa na, at least. We have ICC (Intl Criminal Court). Ang Rome Statute. Pero mga bag-o pana. Pero at the time the Intl law commission
thought of the sources of PIL, and ICJ lang ang permanent tribunal (exc the Ad Hoc tribunals) Ingon ang commission, asa man ta mangita og
authorities? Kita raman ang ICJ. Wa gyud tay laing choice. We have to look into laws of domestic origin. So in case wala conventional or
customary law, they may resort to GPL such as ESTOPPEL, GOOD FAITH, Exhaustion of Local Remedies, Prescription, Equity and Principle
that those who come to court must come with alcohol (haha) clean hands bitaw.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 34

Institutionalized General Principles of Law: Exhuastion of Local Remedies. Applicable na xa sa Intl Criminal Law. Imong i-prosecute og
War Crime ang usa ka General, youre not allowed to go there right away and invoke the authority of the intl criminal court or ICC. It must be
established that you have exerted efforts and attempted to avail of local remedies in order to prosecute the general. It is only when all those
efforts have failed because probably the domestic courts are unwilling to prosecute because normally most crimes punished as WAR CRIMES
are state-sponsored or initiated. Nya kana nga general, should a general of a regular armed force. Tan-awa ang sa Nazi sa Germany and lot
more. It is expected that local courts would be unwilling to prosecute their own generals. And that is where you have the legal standing to go to
ICC if you have exhausted local remedies.
BARCELONA CASE vs SPAIN
The rule here as pronounced by ICJ is that, in the absence of applicable intl law, cognizance must be given to the relevant institutions of
domestic law. Ingon ICJ, murag kita raman usa ani dah, way lain. Adto tag domestic institution. And this is the reasoning oh, Otherwise the
ICJ would lose touch with reality particularly as there are no responding institutions of intl law in which the court could make reference. Wa
gyud silay kapadulngan. And besides, decisions of intl tribunals are not necessarily binding on other intl tribunals, wa man ganiy Stare
Decisis sa decisions sa ICJ, how much more decisions sa other intl tribunal? Well, of course, this was made by the ICJ at that time where
there was no other permanent court, now we have ICC. Even ICC, its not a general court, its a special court for international crimes. So what
GPL is applied to this case? (Oral recitations ensued)
Let us go to reservation and let us be guided by the following questions:
1. What is reservation?
2. How is it distinguished from declaration?

We have a definition of reservation in article 2(1)(d) in the Vienna Convention:


reservation means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that
State;
L:Usually, when is reservation resorted to by a State?
G: the reservation is usually done by a State before accepting, ratifying and approving the treaty
L:Is it possible to have reservation in a bilateral treaty?
G: It depends on the stipulation in the treaty, because if such reservation would affect the.. (g putol ni sir)
L: do you think it is relevant in a bilateral treaty to have a clause on reservation?
-why is it irrelevant to provide in a bilateral treaty anything that has something to do with reservation?
G: no sir. It will not go with the purpose of having the treaty and such reservation will not be applicable to the State making the reservation
L: that is the same thing with a multi-lateral treaty, because that is the very nature of reservation, a State wants to exempt itself from the
application of a particular provision. Well, it is not a relevant to talk about reservation in a bilateral treaty because normally, if it is just bilateral,
there are only two parties, the reservation will only come out as a more of a counter-offer on the part of the reserving State. For that reason, it
is obvious that the other State must accept it or not. So if the other State will accept it, it ceases to be a reservation because the counter
proposal had been accepted. So in the case of a multi-lateral treaty, that is where you begin to talk with reservation. It is common to see
reservation clauses in multi-lateral treaties. Except that in reality, more than 80%-90%, no State will make a reservation to a particular multilateral treaty

What is declaration?
-Declaration that is more or less relevant to a reservation, because if you did a reservation in your activity (bla bla)
A reservation may not actually be. what appears to be a reservation may not actually appear as a reservation but a declaration. And that
declaration may not in fact require an approval from the other States
Usually declaration is done if a State tries to explain its own understanding on a particular provision of a treaty. It would perhaps simply
declare that this provision is understood to us, this is this and this is that, and therefore, it is up to you WON our understanding is against the
very object or purpose of the treaty. Because if what appears to be a declaration is actually contrary to the object and purpose of the treaty,
then it should be treated as a reservation. In which case, the rules of reservation must be applied. Of course, it is the nature of a declaration.
So if the treaty for example provides that this treaty shall enter into course by mere ratification, then one state would make a declaration that
by ratification we mean that this is the process of ratification, it can be done that way.
L:So when is reservation allowed and when is it not allowed?
G: GR: reservation is allowed in all treaties
Exc: if it is stipulated in the treaty that reservation is not allowed or a certain provision is not allowed to be reserved
Can you please answer the 4th question:
L:Can a reserving state be regarded as being a party to the treaty while still maintaining its reservation, if the reservation is objected to by one
or more of the parties to the treaty but not by others?
G: the reserving State can be regarded as a party to the convention if such reservation is compatible with the purpose of the treaty. However,
if it is incompatible to the purpose or the fundamental principles of the treaty it will not become a party to the convention. But such reservation
must be approved by the member States (advisory opinion concerning reservation to the convention on prevention and punishment of
Genocide)
L: explain why ICJ made a special formula for the Genocide convention and I believe that the formula was adopted only because it involved a
particular convention, the genocide convention. And therefore what would be the general rule if the convention involved did not or was not
about genocide?
G: since the ICJ, laid down the general rule that a reservation can be made by any State but while maintaining it, it must be concurred by the
member States and such (g putol)
L: but what do you think is the rationale behind the requirement of unanimity of the concurrence of reservation. Why require unanimous
concurrence by States?
G: because a State cannot be a member to a treaty if it is not with consent. So a reservation must be consented by member States so that it
can be declared a party or a non-party to the convention
L: and here I think if you read the entire opinion of the ICJ, the ICJ likened the convention to a contract where consent plays an important role.
So, if we go to the first three questions. You have definition here.

402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 35

As a general rule, reservation is allowed only when the reservation is accepted by all the States which by the way, States which had signed,
not necessarily ratified. Because ratification comes after the signature. Ok? Not unless the treaty or convention itself provides for the rule. So
you mention about reservation is not allowed if the treaty does not allow. And where the treaty allows reservation it lists down certain provision
or subject matters that while reservation may be allowed in some provision, they are not allowed in certain provisions. So it is either absolutely
prohibited by the treaty, so there is no reservation possible there. And if it is allowed, it is the usual practice that the treaty will list down what
may not be the subject of reservation and where it is incompatible of the object and purpose of the treaty
Questions:
Can the reserving State be regarded as being a party to the convention, while still maintaining its reservation?
L:If reservation is objected to by one or more of the parties to the convention but not by the others and you said, whats that?
G: it depends, on whether the reservation is compatible or incompatible to the purpose or object of the treaty?
L: the question here is who determines the compatibility or incompatibility?
A: it is up to the State who will accept or object to which is a criterion WON it is compatible or incompatible to the subject or purpose of the
convention
L: if the answer to the above question is yes, what is the effect of that reservation as between the reserving state and number one to the
parties which object the reservation and second to those who accepts it? And so we have to ask those who rejected the reservation, WON the
reservation is valid or what? WON. what is the objective of determining whether the reservation is compatible or incompatible with the
purpose or object of the treaty
A: if a reservation is held not to be compatible with the purpose of the treaty, that party who made that reservation would not be considered a
part of the treaty
L: so the issue is not on the validity of the reservation but WON on the part of the party objecting to the reservation, the reserving State may
be considered a party. Because that is the question in number one: Can the reserving State be regarded as being a party to the convention,
while still maintaining its reservation? Later on, of course I would be asking the question as to the distinction of the party and a signatory. This
of course presupposes that we are to make the State a party not just a signatory to the convention. Anyway, we would go to that later on. So,
the objecting State is given the option to evaluate whether the reservation is compatible or incompatible with the purpose and object of the
treaty. The objecting State, if it deems it incompatible then the objecting State will treat the reserving State as a non-party. Correct?. But if the
objecting State feels that the reservation is not incompatible, so it is likened to a declaration for example, then it will treat and consider the
reserving State a party to the convention
L: Why such special rule by the way? Whats peculiar about the convention on genocide?
A: the peculiar circumstance that surrounded the making of the convention on genocide justified the rule that states the State depended on
the universal act that wanted genocide to be a crime in the international law. And so if that if they wanted universal application, it could not
have intended that a party could easily be considered not a party.

L: or excuse itself to be not a party to the convention by the mere expediency of making a reservation that will defeat the purpose of the
convention. So this rule that you have learned applies only to the genocide convention or a similar convention for that matter. Note that
genocide of course is part of jus cogens. So the idea that it should not be affected by indiscriminate reservations by members State. So it is
possible for an objecting State to really still treat you as a party to the convention or not a party to the convention as the case may be. K? so
this is the rule, because we are dealing here with the genocide convention
So lets take a look at the opinion of ICJ as to question number 1, on account of its abstract character, it cannot be given an absolute answer.
Thats why, it should be flexible because, precisely the intent was to make the genocide convention applicable universally. Its a case to case
basis. So how is this accomplished?. So this is the rule, the reserving State can be regarded as a party to the convention if the reservation is
compatible with the object and purpose of the convention.
So that, as to question number 2, each State objecting to the reservation will or will not on the basis of its individual appraisal (not the
appraisal or evaluation of all) but as to the objecting state, considered the reserving State considered to be a party to the convention?
Answer: if the objector deems the reservation as incompatible with the object and purpose of the convention, it can in fact consider that the
reserving state is not a party to the convention
-voting here was not conclusive. So in a moot court, you can have it as a defense.
-no stare decisis in international court
So, we were talking about registration. So just take note of the effect of non-registration. Every treaty entered into by any member of the UN,
so members of the UN, well, most of course are, if not all, are also parties to the Vienna Convention on the Law of Treaties, shall register to
the secretariat the treaty which the secretariat will publish.
L:So what is the effect of non-registration with the UN?
A: no party to that treaty could invoke it before a body (international courts, like the ICJ)
L: so it has no effect on the validity?
A: it has no effect sir
L: the treaty is still valid, but it cannot be enforced in a way, since you cannot invoke it in any organ of the United Nations. So if the treaty
provides for a different venue where a controversy may be resolved, and that venue happens to be a non organ of the UN, then article 102
would be irrelevant.
L: Can you answer the first question here? Distinguish a signatory from a party to a treaty. Your understanding first
A: a signatory signs the treaty but is subject to ratification whereas a party is already bound by the treaties because it has expressed its
consent.
L: do you agree Ms. Seville? Do you think that is the distinction between the two, cant we use it interchangeably?
A: I agree with Miss Plaza sir.

Entry Into Force


- Treaty enters into force in various ways:
a. mere signature if treaty so provides
b. upon ratification (commonly practice)
- manifested by domestic ratification and the exchange of instruments accompanied later on
by the deposits of the instruments on the designated depositary.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 36

State Signatories and Parties to a Treaty


- state is a signatory but may not necessary be a party
Signatory - if state through its duly authorized representative signs and expresses its consent to be bound through signature.
Party treaty is already entered into force in sofar as the party is concern, only when the mode of entering into force have been observe in the
form of ratification
Legal Obligations
Signatory
- Even a state is merely a signatory, not yet a party, there are obligations that should still be observe
- Before entry into force a signatory is not bound to a substantive provisions of the treaty...but applying Art. 18..
Article 18 VCLT
Obligation not to defeat the object and purpose of a treaty prior to its entry into force
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall
have made its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty
and provided that such entry into force is not unduly delayed.
- Most authors perceive this rather as broad or vague declaration because it is hard to determine what particular act would defeat the object or
purpose of the treaty.
Case: Bayan muna vs Executive Secretary (2011)
- After signing a wrong statute the Philippines entered into a unique kind of agreement with US which by the way later on withdrawn its
signature from the wrong statute. The agreement provided for a special arrangement that any citizens when prosecuted under the ICC statute
may be not surrendered subject to certain conditions for jurisdiction of the ICJ by the party to be agreed. SC also interpreted the wrong statute
and it was found out that it did not violate the provision of Art. 18. It should have been filed into international tribunal not just locally because
nowadays our SC upholds pactu sunt servanda.
Party
- It is rather bound to obey and observe the substantive provisions of the treaty because it has already entered into force.
- Complies the stipulations of the treaty in good faith (Pacta Sunt Servanda)

Withdrawal
Signatory
- No state is compelled to become a party to a treaty so it can withdraw from the treaty anytime and without any procedure.
Party
- Is now governed by Pacta Sunt Servanda and its effects is that it cannot unilaterally withdraw from the treaty.
- Pacta Sunt Servanda: promises should be kept
- Terms and conditions of the treaty are may be considered as a law between the contracting parties.
- Allowed to withdraw if other states consent unless treaty so provides for withdrawal and the manner or procedure on how would it be done
usually it provides notice (12 mos notice in Vienna Convention)
- The concept of rebus sic stantibus (Latin: things standing thus) stipulates that, where there has been a fundamental change of
circumstances, a party may withdraw from or terminate the treaty in question.

Article 61 VCLT
Supervening impossibility of performance
1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from
the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may
be invoked only as a ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a
treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation
owed to any other party to the treaty.
Case: Ichong vs Hernandez
Domestic law was upheld over treaty obligation with the qualification that domestic law should not be a character of a police power measure.
Police power cannot be bargain by a treaty because we treat treaty obligations as statutory obligations.
Held- The treaty is always subject to qualification or amendment by a subsequent law, and the same may never curtail or restrict the scope of
the police power of the State.
Domestic law cannot be invoked to excuse or exempt a contracting party from the terms and obligations of a treaty based on international law.
It may be different domestically but since we are studying PIL we should all be thinking first before we go to Philippine practice that this issue
will be resolved at the international level.

What is constitutional requirement, constitutional provision affecting treaty making? Inherent in the position of the president that it is executive.
It had been affirmed by at least two cases that we will see later on.
Conditions fundamental concerned the rule of its internal law of fundamental importance. Internal law based on statute. Domestic law, is it an
internal law of fundamental importance?
The Vienna Convention has to state it. It shouldnt say concerning a rule that is of constitutional something because we do have different legal
systems in the world. In the Philippines, we look at the constitution as supreme. In United Kingdom there is no such thing as treaties
constitution so the only way by which this can be interpreted is to also look at the legal systems in that particular State. In our case, it is
definite that Constitution prevails over all other laws and so probably, I can only say probably because this is just fiction anyway, a rule that is
internal in character of fundamental importance should be a rule that is of Constitutional origin. But that it is the Secretary of the Department of
Foreign Affairs that should sign etcetera, is that a constitutional concern/requirement? Yes or is that different because it would tantamount to,
is it evident?

Even the definition of executive powers is not found in the Constitution.


402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 37

If it is a situation where a treaty has not been submitted to the Senate for concurrence, stubbornly by the President despite plea, despite lobby,
despite petition, despite demand, will the Philippines be able to excuse itself from not complying with the terms of that treaty on the basis that
the president is not submitting the treaty to. If the Senate has not yet concurred with the ratification, may the Philippines still be bound by the
treaty? Is it not an option on the part of the Philippines not to be bound by not ratifying it? Because in our case, ratification involves two
processes: 1. By the President, 2. 2/3 Concurrence by the Senate
Bayan vs. Executive Secretary in October 10, 2000
Plimental vs. Romulo
-Whether it is compulsory for the president to submit it for ratification. In any case, what probably confuses us is the probability that ratification
may be interpreted differently by our domestic courts so at least in our case, we say the president cannot be compelled to submit mandamus
on the treaty to be submitted by concurrence in the Senate. It may not be the same principle in other states.
Different effects of treaty once entered into Courts
-Pacta sunt servanda (agreements, promises, commitments must be kept NOT that every treaty enforced is binding by the parties to it and
must be performed by them in good faith. That is just the consequence of Pacta sunt servanda) Since agreements, commitments, must be
kept, it is therefore, as a consequence of that, required that it must be performed in good faith. What do we mean by performed in good faith?
We cannot of course probably, just design or fabricate a ground just so we can invoke change in circumstance.
Exceptions:
- jus cogens
- rebus sic stantibus

Article 27
A party cannot invoke a provision in its domestic law to evade compliance
A party to a treaty is bound by the terms and conditions of the treaty and cannot therefore unilaterally withdraw or exempt itself without
complying with the rules on termination of treaties. And one of the exceptions of course would be rebus sic stantibus in which case a party
may not comply with the terms and conditions.
And you have jus cogens that obligation that is sought to be performed by the state happens to be in contrary to jus cogens so the state
cannot be compelled to violate jus cogens. Obviously, a treaty cannot give you this third state without the latters express consent. Some of
these rules you will notice are rules that you have learned even in the study of the law on contracts. So we have here, Article 46 as you have
read earlier. We studied Article 7 (on who are the authorized representatives in regard to Article 46) Then you might perhaps go to Article 29,
35-37, 30 (on the following territorial scope of treaties) It is obvious, the treaties can be applicable in the territory of the contracting party
except to the extent that if you have read the work of Akeherst, he mentioned about what used to be in the past found in many treaties. Im
referring to colonial clauses. Treaties may or may not be applied to colonies depending on what is found in the colonial clause but that is
already no longer applicable at present because we dont have colonies anymore. Just in case, you will be asked, what is a colonial clause in
relation to the territorial application of treaties, at least you have something to write. As a rule of course, treaties applying principles in
contracts, cannot bind third states without their consent especially if the treaty would burden the third state.

Article 2 (6) of the UN Charter and its relevance to third states


The UN Charter in Article 2 (6) provides for some sort of an obligation on the part of non-parties to treaties. That should be taken as applicable
to members of course of the UN but apparently, there is an obligation still, on the part of third states, in relation to treaties entered into by
members of the UN. What is that obligation? It may be considered general principle of law not to defeat of course the purpose and object of
the treaties. So the principle of neutrality in the part of third states in relation to terms and conditions of treaties entered into by UN members.
Take note of Article 30 of the UN Charter on this matter.
Study the different grounds that will make the treaty defective. They are just codal law but they happened to be asked in the bar exam. Maybe
its too technical to be asked but just the same. You cannot underprepare the bar examination. Basically, these are principles also found in
contracts. These conventions are basically contractual.
Go over also the different grounds of termination of treaties. One of which of course is the principle of Pacta sunt servanda. We mentioned
about impossibility of performance in Article 61. Dont forget that it is confined to the disappearance of the object of the same principle in your
obligations and contracts. Loss of the object would result to the impossibility of performance. Of course, emergence of new jus cogens. If the
stipulation is now in contrary to a new jus cogens, it shouldnt be complied with. Outbreak of war is relevant only during those times when
States entered into bilateral treaties. As mentioned by Akeherst, it may not anymore be relevant at present because most treaties are multilateral. Outbreak of war means termination of treaties for those parties to the treaties which are also involved in that war. So that is
automatically terminated.
We go to rebus sic stantibus. I believe this is the most relevant. So you know rebus sic stantibus is not implied but applicable only in the most
exceptional circumstances. And if you look at Article 62, it provides for narrow limits in the areas of the conditions under which it may be
invoked. Its highly exceptional. It is only applicable in most exceptional circumstances such as when the existence of those circumstances
constituted an essential basis of the consent of the parties to be bound by the treaty. The effect of the change is radically to transform the
extent of obligations skipped to be performed under the treaty and the limitations, basically it came out in one of the bar examinations, is this
situation where rebus sic stantibus is not applicable in so far as treaties that involve boundaries. One relevant case is Hungary-Slovakia case,
1997. What happened here by the way was the ground invoked not to comply with the treaty considered a ground for rebus sic stantibus.
Mere change in the social, political and economic system is not a ground for non compliance in the treaty.
Is it because it was not established clearly and convincingly that it prevented the party to comply with the obligation so the ICJ went on
discussing that Rebus Sic Stantibus can only be made applicable in highly exceptional circumstances and it seems to be that a highly
exceptional a circumstance, no? So mere change in a social system, economic system, political system, legal system will not be considered
as a ground for non-complying with the treaty in the basis of Rebus Sic Stantibus, it is not enough circumstance for Rebus Sic Stantibus to be
applicable.
Distinguish International Law Agreement, Treaty and executive agreement.
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 38

Is a treaty an International Agreement or an International Agreement a Treaty?


What agreement on international concern may be nullified by our Supreme Court btw? Definitely the Supreme Court CANNOT nullify a Treaty
because a Treaty is governed by International Law.
Did you think its a, an awkward situation where the Philippines will nullify a treaty when it is to be governed by International Law? So the
Philippines, the Supreme Court is limited to determining whether or not the Treaty should be complied and if there is a more paramount
interest that is involved domestically we go by the domestic thinking of the Supreme Court, another law may be upheld prevailing over a
Treaty but does it mean that the Treaty is nullified by the Court? The same thing with International Agreement or Executive Agreement?
Is a Treaty an International Agreement? It is an International Agreement but not all International Agreements are Treaties. Because we have
different provisions. We apply the Vienna Convention on the Law of Treaties.
What about Executive Agreement, is it a Treaty?
So what makes the Treaty a Treaty? Is when it is concurred in by the Senate? So, if it is an executive agreement and then ratified by the Pres
and concurred in by the Senate, then the Executive Agreement becomes a Treaty? Because in International Law, all these terms do not
matter. Only when if we go by Exec. Order No. 459 that these terms may matter. And if we go by the requirement of the Senate concurring in
with Treaties and not with any other. So what is in an executive agreement that is peculiar that is, that makes it different from a treaty btw?
EO459, who shall represent Philippines to the different States in. information? Who decides whether it is International agreement, treaty or
executive agreement? Someone should decide so that at least Congress, Senate in particular will be compelled to whether or not concurred
with it or not after it is submitted or whether the President in the first place should submit it to Congress. The Department of Foreign Affairs.
So, the characterization, whether it is a treaty, international agreement.. So the moment when the DFA makes the characterization then that
will guide now the President whether to submit it or not but may the President be compelled to submit a treaty to the. Senate? Its
concurrence.

Pimentel vs. Romulo


The signing of the treaty and the ratification are two separate and distinct steps in treaty making process. The signature is primarily intended
as a means of authentication and a symbol of good faith of the parties. Good faith means that we are willing to be bound by the terms and
conditions until of course it does settled in court. Ratification on the other hand is a formal act by which the State confirms and accepts
subrogation it is an executive act, undertaken by the head of the State or of the government. So at the end of the day it is the President that
decides whether the Philippines should be bound by the treaty whether or not the treaty should enter into course, you cannot compel the
President to submit it for concurrence. It is within the authority of the President to refuse to submit a treaty to the Senate, or even if it had
secured its consent for ratification it may even withdraw its ratification, that is domestically, the President will do that.
What is its effect in international level, thats different, unless its an internal rule of fundamental nature, then the Philippines cannot excuse
itself, from complying with the terms and conditions of the Treaty.

Bayan Vs Executive Secretary 2000 Case


The Visiting Force Agreement.
This one may not necessarily be considered as a treaty? And that if it is ratified there is no great abuse of discretion? May the Senate be
questioned for ratifying what perceived to be an invalid agreement? What is the rule on treaties that involved military based? Military facilities?
Under the Constitution? Is there a special rule on the way treaties including military bases and facilities? Yes.
And on the part of the other State? What? It should be recognized as? But whether it is recognized to be a treaty or not should it be a
determined on how it went through the process in that other state because just like in the US even if it didnt have the concurrence of the
Senate internationally they are still considered treaties, correct? And of course in Bayan muna vs Romulo 2011
Its just a reiteration of the rule that concurrence of the Senate is not required in executive agreements. Usually an executive agreement is
entered into as supplementary to already existing treaties. Treaties are more permanent in character and most at least the way we
distinguished one from the other, in many cases political in character, permanent, institutional, formal. While executive agreements are not
permanent, temporary in character, not institutional, not formal and usually agreed or entered into by the Philippines and another State as
supplementary to existing treaties.

D.

International and Municipal Laws

Dualist and Monist Theories


International and Municipal Law
Doctrine of Incorporation
Doctrine of transformation
Soft and Hard Transformation
National Legal Systems and International Law
Treaties
Customs and General Principles
Public International Law and Private International Law
Philippine Practice

Before jurisdiction, let's talk about international law and domestic law. What is the objective of knowing the exact relationship between
international law and domestic law? Unsa man ma-accomplish nimo if you know the relationship between international and municipal law? In
what problems do we usually apply the relationship between these two systems of law?

402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 39

For one, you will be able to answer problems dealing with a conflict dealing between international law and domestic law if therefore if there is
conflict and it is not impossible because states are sovereign probable there will be issues on the application of international law on the
domestic level and if that application runs contrary to a domestic law, which will prevail, that is the question
The other one is whether or not if there is no conflict if we are to talk about no conflict. Whether or not the domestic courts will be justified or
permitted in applying the law at the domestic level.
if so in what instances may this happen validly?
1. conflict, which will prevail a. if there is no conflict then how may local courts or domestic courts apply the international law controversy
before the local courts? i. Usually in any text book they would start with 2 theories between the relationship between the 2 and there is monism
and dualism theory. Under the monism theory, from the word mono is one there is only one legal system in the world meaning there is no
such thing as a domestic law and international law
b. What is the effect about that principle about monism? i. Sir kung wala ang international law og an domestic law and you said nga there is
only one legal system, how do you call it? Unsa man na international or domestic? The theories advancing monism would have to say that
international law id basically a natural law. Kani tanan natural law ni basta international law and therefore all domestic laws must conform with
the natural law. And that natural law happens to be akin to international law to this theory. And therefore if there is a conflict, and what is now
the result if there a conflict between international law and domestic law then international law shall prevail diba under the monism theory.
ii. Under the theory on monism international law prevails.
c. In the case of a dualist . i. They would say that there are 2 laws in the world. One is called international law and the other is called domestic
or municipal law. And in case of conflict, then that is where we apply the usual answer that it depends on the forum. If it is an international
forum or tribunal, its more of expectation than a rule. You expect the international tribunal to apply international law. Its not correct to say that
international law will prevail.

1. In international criminal law some cases point to refusal to accept certain cases because of non-compliance of certain domestic remedies.
ii. But if it is a domestic court, will it apply domestic law and shall we say that domestic law apply than international law? It is not a rule more of
an expectation. You only expect a state to apply domestic law over international law because at the end of the day it would depend on policy
and it would depend on culture of a state. Adto ka us expect gyud ka domestic law. Dire sa Philippines mu tuman tag pacta sunt servanda. Kai
sa us mu invoke na sila pacta sunt servanda is only when it will affect us interest man. So it is not a rule. It is more of an expectation or an
observation and it would also depends on the domestic law. In the Philippines for example, probably we can assert the superiority of our
domestic law If they partake the nature of police power otherwise we apply international law. Paris convention on intellectual property diba
pacta sunt servanda. Ichong vs hernandez local law pero police power mo local law prevails. So depende sad na sa law that shouldnt be as
an absolute rule but more on practice, expectation and observation but then again you should also distinguish the nature of the law.
iii. So this is where we distinguish the forum if it is a dualist theory.

How does the international law take effect in the domestic legal system. We have theories also about transformation and incorporation.
if you are a monist you usually adopt incorporation because incorporation is automatic. There is only one legal system under the perspective
of a monist so international law is incorporated ipso facto under the domestic law no need of a positive and affirmative act on the part of a
government.
If you are a dualist to advance the transformation theory because for you there are 2 legal system and one system is different from the other
the only way international law becomes part of the domestic law another separate system, there must be a positive act on the part of the
government transforming international law into a domestic law. In the Philippines, we have incorporation in so far as GAPIL (general accepted
principles of international law) are concerned. Treaties however become part of the law of the land through transformation because there is a
positive act on the part of the senate after ratification, the senate concurs with the ratification and that is the positive act and that is the only
way. Treaties are not necessarily generally accepted principles of international law.

Transformation in some books are classified into weak and strong transformation.
strong transformation- the process requires that it is done by legislative act or congressional act pahimu.on gyud og statue. Involves
congress transforming international law into domestic law.
It is weak transformation if the process allows executive or judicial department to incorporate the international law into the domestic law. So
weak transformation. o As you know we can also transform international law, unsa man ni strong or weak? Di man na siya law nga we declare
at the international level that this is how we transform. We can do it probably by congress by passing a republic act for that matter, executive
department Im not kin on saying or affirming that we do it by transformation but certainly, our supreme court can transform international law
into domestic law, why because in the Philippines, judicial decisions will be part of the law of the land. Mao na siya and I believe that we can
also transform via supreme court. When the supreme court says that this is international law etc and applying this law in this case. Wa na
transform na siya and it will form part of the law of the land na. that is not much of a concern because if it GAPIL wala man effect SC saying
nga ilang I apply. It would be relevant if that international law being applied would not clearly a GAPIL in which case you will have a situation of
transformation.

Executive department, Im not keen on saying or affirming that we do that, by transformation but certainly, our Supreme Court can transform
International Law into our domestic law, why? In the Philippines, di ba Judicial decisions form part of the law of the land. And i believe that we
can also transform via Supreme Court. So if the SC says this is International Law etc. etc. and applying this law in this case, wa na,
transform na siya. Forming part of the law of the land. So thats not much of a concern class because of Incorporation, if it is GAPIL, wa may
effect ang SC saying that its international law and then applying into a particular case. Probably, thats relevant if that International law is not
clearly a GAPIL. In which case, you will have the situation of transformation.
I would have wanted you to distinguish the practice in UK, US, and the Philippines or the three strongest states in the world. In UK, treaties are
entered into by the monarch, by the queen. Will they form part of the law of the land? No, until the parliament approves the treaty, it is only it
becomes part of the law of the land. Why is that? Because law making is the discretion of the parliament. And if you want a treaty to be
become part of the law, then it should have the prima tor of the parliament because otherwise, the monarch will be violating the legislative
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 40

prerogative of the parliament. But customary international law in UK will become ipso facto part of the law of the land in UK. Theres no
problem with this.
In the US however, treaties will become part of the law of the land when they are self executing treaties. So they distinguish between self
executing and non-self executing treaties. And they also have a definition on what treaty is considered self executing and what treaty is nonself executing. So even if it is ratified by the US senate if it is non-executing treaty based on their own standards it will not form part of the law
of the land. There must be a separate legislative enactment enabling law in order to make the treaty forming part of the law of the land. Do we
do that? I have not seen a SC ruling distinguishing self executing and non-self executing treaties. Mas bright sila. Customary international law
be form part of the land, its in that by reason of some self interest apart from the US. There may, however some controversies on the
applicability of customary international law in the US. In the Philippines on treaties by transformation, when theyre concurred by the Senate be
form part of the law of the land, GAPIL are incorporated.
E.

States and Governments

The next topic is about State and Government. Here we talk about the concept of state, especially the requisites, or what we call the elements
of statehood. We will talk about governments and the more difficult task of distinguishing the different effect of recognition of state and
government.
So in what instances may the problem of statehood arise?
Can you name some situations where it becomes relevant to determine or evaluate whether a group of persons in a territory can constitute a
state? Why would that be necessary, the determination of statehood?
There should be some sort of an event, a scenario that triggers the need for the determination of a group of persons as constituting a state.
For instance, now, it is not relevant to determine whether or not the Philippines as a state because why, whats happening to the Philippines?
What do you think?
In other words, in what instances do we apply the so-called elements of statehood? What would trigger to compel one to apply the elements of
statehood?
Something must have happened.
For example, a part of a large territory secedes from that large territory, so it is important for one to determine whether the seceding territory
can be identified as a state.
What else?
For example, there is a dispute in borders. Maybe kami ray ga-storya diri, class (laughter) sweet kayo mi (more laughter) So, if there
is a dispute in the borders, sir, maybe other states may find it relevant to consider that state having a dispute with the other state as in the
real sense of the word STATE. (meaning 3rd party states may consider the elements in recognizing the statehood of the state having disputes
with another state)
What else?
Ralph: What about, in terms of population, sir, a certain group of people is considered as cultural minorities as in the case of Quebec
Sir: and whether or not ah this is the same as secession. When we will talk about Quebec, we will talk about that later on.
What else?
If the government is toppled down by National Liberation Movements or rebels and a new government is instituted as against the de jure
government, is it problematic now, considering that perhaps a change in the government will affect the status of statehood, or will that change
in government not change the status of that state as a state?
Indeed, there a lot of situations where it is important to apply the elements of statehood. I will show you the instances where this will be
relevant.
The second question is: Why would it be relevant for us to evaluate whether a particular group in a given territory can constitute a state?
Sir, maybe it is important to determine statehood in the sense that membership in the UN, for example, presupposes statehood to achieve
regular membership. Okay. So if the UN is confronted with a problem because a supposed group of people in a given territory is applying for
regular membership in the UN, mu-apply kaha?
So it is important on the part of the UN.
What else?
If Singapuria, bah, in this case, is considered a state, may it invoke rights that have been violated by Malisiana? What might those rights be?
Territorial integrity, independence, a violation of what was described in the Islands of ?Farbas? case as exclusive authority to exercise the
functions of a state in a given territory.
SO in the Montevideo Convention on the rights and duties of states in 1993, there are indeed rights and duties according to Article 1 of the
convention (because it has to define states before it can confer rights and impose duties on a state) Article 1 provides for the elements of
statehood.
That is insofar as the rights of a state are concerned.
What about duties?
On the part of Londonia as a small territory in the southern border of Singapuria, it may assert its right of determination because in the
problem, it was stated that they also have a unique culture and history, etcetera and so if you consider that as a state or even if not but at
least you consider that portion of the southern border of Singapuria as a place where certain peoples exercise the right to self-determination,
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 41

then, as you have already learned this right is an erga omnes norm, and because it is an erga omnes norm, then states are compelled and
obliged to respect the right of that group to exercise the right of self-determination.
If you are not a state, can you be compelled to respect that right to self-determination? Im just talking about the duty. Of course the duties are
enumerated in the Montevideo Convention.
So we are talking here about the conferment of right and imposition of duties in the international level on states. That becomes relevant.
Entering into treaties some states perhaps, or purported states say that we want to sign by accession, or however, become party to a
convention. But the statehood of these states is a concern for the original parties to the treaty because if you accede, then you should be a
state because only states may be a party to the treaty, but these states are not really states so they should not have been given the right to
accede.
So here are the different scenarios where the determination of statehood may be relevant. (refer to slides)
If you are very good at world history, you will easily remember the break-up of a large state into several smaller states as what happened to
the Soviet Union, diba? Before, Yugoslavia and Czechoslovakia were part of the USSR.
So if there is a break-up of a large state into smaller states, then 2 questions arise:
1. Does the larger state continue to exist as state? a. For example, it is a federal state and then the small opponent states would separate
from the federal state so remember, we will talk later on about EFFECTIVE CONTROL TEST will the large state continue to exist as a
state? Or will it lose its status as a state and dissolve?
2. Are the smaller states now considered to be states if they are successful in separating from the larger state?
The other situation, of course, is, if you are familiar with what happened to Kosovo, ah when it separated from Serbia in 2008, as you have
said earlier, secession by a part of the territory.
We talk about the opinion of the Supreme Court of Caenada (murmurs from class) diba, that is how it is pronounced? KANADA diai na?
(laughter) the opinion of the Supreme Court of Canada in the case of Quebec, about the nature of 1. The right to self-determination and 2.
The so-called unilateral secession in relation of the right of the state to territorial integrity.
And then what if foreign control is exercised over the affairs of a state?
So our concern is whether that state, being a subject of this foreign control, may be considered by international law as a state. For example,
Palau became an independent small state sometime in 1985, but before that it was subject to US control. Okay, that is the third situation.
What else?
Merger or union of states. So opposite to dismemberment, there is merger or union. So we have to talk about the status of merged states.
So for a brief period of time in 1958, I will not say I already remember because I was not born yet (laughter) so Egypt and Syria formed the
United Arab Republic but not very long. So what we are concerned with is the status of the merged state.
Then fifth scenario, we are now talking of the situation in Quebec. Place by constituent units or a union or federation to the attributes of
statehood..
And finally, territorial or non-territorial communities which have special international status.
(Instances where we apply the elements of statehood)
Merged States
In 1958, Egypt and Syria merged to form what was then called the UAR, United Arab Republic. Syria seceded from this United Arab Republic
years after the merger and so Egypt renamed itself as Egypt. So what was then the status of the merged states at that time?
Quebec Situation
Claims by constituent units or union or federation to the attributes of statehood.
Special International Status: Palestine and Vatican City
There are territorial or non-territorial communities which have special international status, like in the case of Palestine. As early as 1988, a
declaration was made that Palestine was then considered already as a state by their declaration. So they applied for regular membership with
the UN but until now, they havent been given regular membership in the UN.
But, they were successful in obtaining a step towards statehood when they were given a non-member observer state, because they were
considered then as a non-member observer entity. Priveleges are limited.
They tried to apply for regular membership with the Security Council but because of the veto power, US has been so critical in recognizing
Palestine as an independent state (remember that US is a permanent member of the Security Council. In the Security Council, they have
single veto, it only takes one veto and the application will not be approved.)
Palestine however got majority in the General Assembly (almost two-thirds of the membership of the general assembly). So there are over a
hundred states that are recognizing Palestine as a state. But the UN has not formally accepted the application to become a regular memberstate.
Vatican City is also a state, but it is given a special status. There are entities that are given special status in international law. They are called
the sui generis states because they have special situations different from regular states.
Elements of a State
Article 1 of the Montevideo Convention on the Rights and Duties of States:
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 42

Article 1
The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c)
government; and (d) capacity to enter into relations with the other states.
In the past, the study of international law especially in the area of statehood, had to make use of the elements of states as stated in literature
by authors and publicists. It was shortly after the Convention where publicists and authors and experts in international law that they began to
invoke Article 1 of the Montevideo Convention. The enumeration of the elements did not vary, except in the case of the fourth element
where different terms were used in the Montevideo Convention. In literature, authors and experts would enumerate the elements of the state
as follows: permanent population, defined territory, government, and then the fourth one is sovereignty or independence. In the Montevideo
Convention, they reduced a bit the threshold by just requiring capacity to enter into relations with other states. It must be remembered that
actual exercise of independence or sovereignty or authority to enter into relations with the state are not required, what is important is
the capacity or possession of that capacity.
Permanent population: The problem with the enumeration though is that it uses the word permanent already, and that becomes highly
controversial because for one, the Montevideo Convention does not specify the threshold of permanence. So probably, well rely on the
opinions of the experts on the matter insofar as population is concerned. Going back to the writers before the Montevideo Convention, they
would point to population as the people must have the capacity to maintain the continued existence of the state. Thats the requirement before
the Montevideo Convention. Probably thats the meaning of permanent population. But that thing is an inherent requirement. The people
must be able to continue its existence.
Question: If all people living in a territory belong only to one gender, does it have the capacity to maintain the existence of the population?
Answer: Well, probably because of science, we may not just actually rely on natural method on maintaining the continued existence of our
population. However they maintain it, by cloning perhaps, if they are able to do that, then they can constitute a state.
Relate this to the case of Vatican City, it has a special status, they dont naturally reproduce, not by natural method but by migration.
How Many People Are Required? There is no definite requirement or threshold in international law.
Question:In case a new state is established, is new nationality conferred upon the population?
(If you talk about the population, you are talking about the citizens of that state. It is important because if there is no state, there can be no
citizens. Remember that we say citizen with respect to a state, if there is no state, there are no citizens.)
Answer: The members of the population are given the option, whether to retain their citizenship with the old state or shall endeavor to become
members of the new state.
Defined Territory; Islands of Palmas case. There was this small island in the southern part of the Philippines, bordering Mindanao and a
portion of Indonesia. By virtue of Treaty of Paris, Spain ceded the Philippine Islands to the United States. If there is cession of territory, the
treaty would have to enumerate the islands that consist or compose the Philippine Archipelago or Philippine Island. When it was ceded to the
United States, the United States noticed that one of the islands purportedly owned by Spain and therefore should have been ceded to it, under
Treaty of Paris, have been claimed by the Dutch, the Netherlands.
There have been few evidence of exercise of sovereignty, though, on the part of Netherlands, but zero, or very minimal on the part of Spain.
(Islands of Palmas Case is also important with respect to acquisition of territory because one of the modes of acquiring territory is by discovery
which must be coupled with effective occupation). The arbitrator in this case, Max Hubert opined that while there may be discovery on the part
of Spain, theres no evidence that Spain effectively occupied the territory. On the other hand, the Dutch, or Netherlands had shown evidence
of exercise of sovereignty by establishing some institutions in that territory.
Why is territory important? Because the concept of territory is relevant to the concept of jurisdiction. It is important to know what is meant by
territory as an element of state in relation to jurisdiction. As a rule, jurisdiction is territorial so we need to know the extent of territory.
Whats the meaning of territorial sovereignty, according to Max Hubert in this case? The right to exercise in a territory to the exclusion
of any other states the function of a state. But what makes this a little problematic is while jurisdiction is territorial, therefore there is need
to define and delimit the territory of the state in order to solve jurisdictional issues, that problem, however, on delimitation, or the accuracy
of the territory of the state, so that there will be no dispute on jurisdiction, is not a major factor if we are to talk about territory as an
element of state.
In the cases of North Sea Continental Shelf, there was a pronouncement by the PCIJ that accurate definition, precise definition of a
territory is not an inherent requirement. What is required is that 1. The government must have sufficient consistency in the exercise
of sovereignty over that territory; 2. That the exercise of that authority must be effective, (in relation to government). So, sufficient
consistency plus effective control over that territory are the important elements if we are to talk about territory as an element of a state.
Second, that the exercise of that authority is effective. So, sufficient consistency plus effective control of the territory class are the impt
elements when we talk about territory as an element of the state. K? You take note of that.
therefore if a person of a particular state is present in another territory is still subject to dispute. it should not affect the status of that state. in
the problem, singapuras statehood should not be affected by the fact that at the southern border of its territory has been claimed or subject to
claim by other states. what is important is that singapura must be able to demonstrate the following: it must have consistently and sufficiently
exercise sovereignty over the territory. But in the problem, you will notice that there seems to be a suggestion that singapura hasnt been able
to exercise consistently. so, exercise sovereign power over the territory because it is militarily weak. diba naa sa problem. Except that, if a
state have been established and a part of its territory had already been subject to dispute, the requirements of sufficient consistency must be
liberally applied. that is also the rule in international law. It is different if Singapura did not start as a state but simply an emerging state. it may
happen man gud class that singapura was not yet established as a state, then it was just an emerging state then suddenly a dispute occurred
between an already existing state and that newly emerging state. In international law, the requirement of sufficient consistency will not be
applied very strictly. Pero if established na siya na state, long time ago, then naay dispute sa territory, then the requirement of sufficient
consistency will not be applied very strictly. K?

402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 43

So, still in territory how long the territory must be or its size? No requirement. No threshold. But of course there must be territory. What if the
territory is purpotedly annexed by another state? Would that affect the status of statehood? that happen in 1990-1991 when Kuwait was
occupied and annexed by Iraq. This time, i can say i can fairly remember. It did not affect the status of Kuwait even if Iraq declared that Kuwait
became part of Iraq after its occupation. of course, US-led security council was able to restore Kuwait to its original, aw you cant say to its
original status because it did not lose its status anyway. So thats one.
Then, must territory be contiguous? No. there is no such requirement. Look at the United states. awa ang hawaii ug alaska. dba dili gyud siya
part sa territorial domain sa US.
Alright, government. In literature, the fourth requisite is independence and most books refer it as external. aw not independence diay,
sovereignty. EXTERNAL SOVEREIGNTY because sovereignty for purposes of the elements of statehood, would have 2 kinds. You have
internal and external sovereignty. Sovereignty means authority to command. So, when I say internal sovereignty I am referring to the ability of
the government to command obedience internally of course. And that is manifested by its ability to issue laws, orders, policies and being able
to punish violators of domestic laws, bring offenders to court, etc. If the government is able to exercise the three powers of the government:
executive, legislative, juidicial, then it has internal sovereignty. And if it can exercise the inherent powers of the state: it can impose taxes, it
can issue police power measures, it can expropriate, so these are manifestations of being able to command obedience. if that is present then
it means there is internal sovereignty and that is inherent to the government as an element of the state. So you dont speak of government as
there is a government, it has have a government that is able to exercise internal sovereignty.
Traditionally, international law would point to the so called effective control test. It is not legitimacy is important. it may happen that a de facto
government takes over a legitimate government. And that happens in a coup d etat for example, rebellion and a lot more of other possibilities.
if that happens, there will be a de facto government and then there will be a de jure government. K? the de facto government can exercise
control actually. that is called de facto because infact but it does not have the legitimate sovereign power because it may have obtained that
authority to govern not in accordance with the constitutional processes. k? and so it is not legitimate. but just infact. but you will have still an
existing de jure government. and this de jure government usually will be on exile or maintaining its presence in a small territory while the de
facto government exercises authority in a larger part of the territory. it can happen. k?
So, it is a possible that a state can exist even if the one running the affairs of the government is a de facto government. What happen in this
case of Tinoco claims which is the case Great Britain vs. Costa Rica? Why is it called Tinoco? who is tinoco? For about a brief period of time,
about 2 years, a dictator was able to rule tinoco by force. ayy dili diay tinoco, costa rica diay class. and this dictator is named tinoco. during his
time there were contracts entered into by the de facto government or the military government with Great Britain. Infact, there were bank notes
issued in favor of Great Britain. But later on, the legitimate government of Costa Rica was able to reestablished its presence in Costa Rica, the
de jure government. And one of the immediate actions that the de jure government was to cancel all contracts entered into by Tinoco with
other states, including that of Great Britain. Fact no.1, Great Britain did not recognize the regime of Tinoco. And now you have Great Britain
challenging the act of the de jure government of Costa Rica in cancelling the contract it entered into with Tinoco. K? so, according to the
arbitrator here, Chief William Howard Taft, then the Chief Justice of the US SC, and then president of the US, said that recognition is not
necessary for purposes of claiming or demanding for compensation. So, its not legitimacy is best, the arbitrator there noted that it was a fact
that Tinoco government had actual control of the territory of Costa Rica. Although some writers believed that was the thinking of the arbitrator
because Tinoco had effective control at that time. It would have been different if it wasnt certain. Why is recognition relevant here? because
costa rica said that very few state recognized and majority states of the world did not recognize the Tinoco government. And therefore, all acts
entered by it should not be given binding force. But the arbitrator said, that its factual, that it had effective control over the territory of Costa
Rica. You will later study the effects of recognition. While it is not an element of the state, political and international law reality would still
consider recognition as relevant.

Note also that in case, there is temporary deprivation of effective control, the state does not cease to exist. infact there is a movie about
rwanda and i hope we can view one. unya nalang after we discussed relevant topics para nag tan aw ninyo saba kay mo. objection dayon.
haha. dah maayo kay mu paminawon bah. You remember about somalia? murag zero government. Anarchy. but it wasnt perceived as a
cause of dissolving Somalia as a state.
You remember what happened to Somalia? Murag zero government, anarchy! Whats the situation in Somalia? Yet it wasnt perceived as a
cause for dissolving Somalia as a state. Thats governmental call? (di ko ksabot)
I said traditional international law would focus on the effective control test, but in 1958, the European Union (EU) issued some sort of
guidelines on the recognition of government. If you look at the outline, youll see this in the work of Akehurzt. You will notice that basically,
there seems to be a suggestion that points to an opposite test to the effective control test which they call, of course the opposite being
legitimacy test. Diba most European states now would have this policy, and I will talk about the different doctrines in government division,
that they will not recognize governments that have been established by force, because that is in violation of the UN charter, and second,
undemocratic processes and undemocratic regimes, they will not recognize. So what do we mean by legitimacy by the way? We are
talking about acceptability by the people towards the government. Thats why consent daw is important. So if dilixa democratic, there is
no consent from the people, this will pose a problem. We are yet to see the legitimacy test as consistent with international law principles, but
there seems to be a suggestion now in contemporary international law.
We go to the last element of the state, which is capacity to enter into relations with other states. Article 3 is the clear manifestation of
the observance by states of that we call the declaratory theory in recognition in relation to states. After it mentioned of capacity to enter into
relations with other states in Art.1, Art.3 of the convention also says the political existence of the state is independent of recognition by other
states. Ok? Even for recognition that the state has the right to defend its entity and independence. Now, if it is capacity, what if its capacity is
limited capacity, like in the case of protectorates? Dba before the UN trusteeship council implemented decolonization mechanisms in the
past there were a lot of protectorates, those under trusteeship and even what we call associated states? And very common to these states is a
relationship between that state and a powerful state. The process of decolonization in the past usually involved the practice by powerful states
of granting the weaker states some sort of a probationary period. And the Philippines is not an exemption to that practice, remember, before
we were granted independence, we were governed by the commonwealth government with the condition that the US should see and be
convinced that the Philippines can now run the government like hell, aw like hell..(haha, lol!) On its own. Dba? Thats what they wanted to see
that we can run the government like hell, mao mn kha nang giingon ni Quezon? Anyway, so thats usually the case. Now, in the interim, the
quote and quote state that would become an independent state, a protectorate for example, or a colony, before it would become a state, it
will still have to enter into relations with other states. But how will these weaker states do that? Usually with an agreement, a treaty or any
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 44

agreement for that matter, with the powerful state or the pairing state, where the pairing state will be the one to enter into relations with other
states for and in behalf of the weaker state. Now that is very common in the principle of association. Most authors agree that these situations
shouldnt affect the statehood or status of these weaker states. Because we know that independence, which is the external sovereignty,
meaning, the state, in order to have external sovereignty, must be able to demonstrate that it can govern internally without the dictates of
external forces, whether third states or international organization. Second, it must be able to relate itself with other states as well without
being subjected to the control of a third state or another international organization. That is the idea of independence. But you learned in
your Consti I the idea of the doctrine of self-autolimitation, that whenever there is consent on the part of the state to limit the exercise of their
sovereignty, which according toin fact even international law, which shouldnt result in the diminution of sovereignty, because sovereignty
shouldnt diminish, what is diminished here is the exercise of sovereignty, and so if these weaker states enter into these agreements, no
problem, it shouldnt affect independence.
Other regular states and international organizations include the following, we call it sui generis status of the following: Vatican City and the
Holy See the administrator and Vatican the state, Palestine, Taiwan and Hong Kong and Macau. In 1977 Hong Kong was delegated to
Peoples Republic of China and Macau in 1999, Hong Kong was under the British Empire and Macau was under Portugal. Thats why if you go
to Macau they have Portuguese inspired architecture. So go over these and find out why they are considered entities with special status.
Recognition of state and government. Is there a difference between recognition of state and recognition of government? If yes, whats the
difference? Anyone? Share share sad ta beh (wa jud sir). Mgkuha lng kog tubig ha? (go ahead, sir). We are to talk about recognition because
while you have the elements of statehood in Art.1 of the Montevideo convention, there are authorities which pushed for additional elements of
statehood and you have number one, recognition, as additional but this is not well accepted so this remains a theory, and you have
sufficient degree of civilization, other authors would call this self-determination.

Why would it be important in the study of Public International Law to talk about Recognition?
Because it has legal effects even if it is not recognized as an element of statehood. In the observation of akehurst that there will be different
effects in international law and in domestic law.
Effects of recognition:
International level- state A recognizes b as B state, then it means B according to state A possess the elements of a state. Therefore, in its
relation with sate A, state B can exercise the rights and privileges afforded to a state. In relation to the recognizing state in this case state A.
Domestic level- affording state B to hold properties in the territory of state A recognizing that the state has legal capacity to enter into
contracts. In cases where a law in state B is pleaded in the local court of A then your rules on proof of foreign law will be observed, and the
foreign law will be applied in state A because state A is the recognizing state.
The principle of renvior (d ko sure ana nga word =)) in private international law, where in domestic forum it applies the law of a foreign state.
The application of the law of the foreign state would have the effect of throwing back the legal question to the foreign state. Mao bitaw na ang
ginatawag na INTERNATIONAL PINGPONG.
Will this happen if there is no recognition of the other state? No it will not if there is no recognition of the other state.
You have to distinguish recognition of STATE from recognition of GOVERNMENT.
Recognition of STATE- the recognizing state recognizes presence of the elements in the recognized state.
Recognition of GOVERNMENT- refers to recognition of which government has effective control over a territory of a particular state. But then
again as I have said, this is a complicated question because recognition is a public and a political act. So at the end of the day would still
depend of the foreign policy of the recognizing state. There is no clear and definite rule on recognition . others may use the WILSON doctrine
TOBAR doctrine, ESTRADA doctrine. It is suggested that there is no duty to recognize because it is a political act. While some authors
suggest that they have a duty to recognize, at the end of the day it would still depend on the foreign policy of the state.
Recognition of a state does not necessarily mean recognition of a particular government. It may be that it recognizes state B but it does not
recognize its de facto government. It is a case to case basis. It has its own assessment of the factual situation. There should be a separate
recognition the government.
Theries of recognition of state:
CONSTITUTIVE THEORY- a state is considered a state only if other states recognize it as a state. So without the recognition of the other
states it does not become a state. The status of statehood would depend on recognition.
The opposite would the DECLARATIVE THEORY recognition has no effect on the status of statehood. It is a question of law and fact and
not of judgment. The recognition does not add anything to the status of the state.
Is this the theory that is largely practiced or more persuasive? Maybe yes because in the Montevideo convention about political existence of
states independent of recognition of other states. Even before recognition the state has a right to declare its independence, so what does that
tell you?WON you recognize us a state and in fact under international standards we are a state, you should respect our territorial integrity. If
you send troops to our territory you have violated our right to territorial integrity regardless of the fact that you have not recognized us as a
state.
But there is a term in international law called COOPTATION. This is what makes CONSTITUTIVE theory as prevailing in reality. I believe in
this observation because it is a political act and I am not obliged to recognize you, in effect you cannot compel me to do diplomatic missions.
So the extend that you are not able to exercise diplomatic relations with me means you are not a state in so far as you are concerned. So
there will be no rights and duties of a state without recognition. With the exception of JUS COGENS and ERGA OMNES. So even if we dont
recognize you as a state we are bound by some norms.
Effects of recognition:
1.) Full diplomatic relations except in de facto recognition.(international level)
2.) Right to sue in courts in the recognizing state. (domestic level)
3.) Entitlement to property in the recognizing state(domestic level)
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 45

4.) Recognition being retroactive validates past acts of the recognized state. Therefore the act of state and sovereign immunity covers
the past, present and future acts whenever recognition has been accorded to a state.
this one is a peculiar effect of recognition. Recognition being retroactive validates past acts of recognized State or government.
Therefore, the act of State or sovereign immunity covers past, present and future acts whenever recognition has been accorded to a State.
Underhill v Hernandez
Facts: There was this revolutionary government in Venezuela headed by Hernandez. Underhill had constructed waterworks system in Bolivar.
There was a demand for repairs and continued operation of the said waterworks, but Underhilll wanted to leave Bolivar. However, Hernandez
refused to give Underhill a passport. So what Underhill did was to sue Hernandez for his refusal to issue a passport. At about this time, the US
has not recognized the revolutionary government in Venezuela but recognized it later on.
Issue: WON Hernandez action in not granting the passport, should be recognized as the act of Venezuela. (Therefore recognizing the
revolutionary government as forming part of the State of Venezuela so that the act of that revolutionary government would be considered as
the act of the Sate of Venezuela.)
Held: The past act will be considered as the act of Venezuela although at that time when the act was performed, the revolutionary government
was not recognized by the US. In other words, at the time when the act was performed, there was still no recognition, but later on there was
recognition so the effect is retroactive.
We are talking about the US court here because the case was filed in the US. The US SC applied the principle of sovereign state as not being
the subject of the of other foreign courts-- principle of sovereign immunity.
Right to Self-Determination
If you are to study statehood you have to talk about the right to self-determination. In most cases if you are to talk about emerging states they
usually come in the form of the exercise of the right to self-determination. So we ask the question, what is the status of the right to selfdetermination in International Law, and how relevant is that right to self-determination? You might find it relevant especially if you are to talk
about the right of a State to its territorial integrity. This means that if the inhabitants of the portion of a territory, for whatever reason, would
want to separate from the State, the State that has effective control also has the right to insist that it shouldnt be separated from the parent
state. If this were recognized in International Law, it would mean that the parent State would be justified in trying to defeat or crush the
separatist movements in its territorial boundaries. If that is recognized by International Law then there shouldnt be liability for that parent
State.
We go to the nature of the peoples right to self-determination.
- It is settled that it is customary international law, a jus cogens, o It is jus cogens in the sense that it can be asserted as a right and
o there shouldnt be any treaty for that matter that should prevent the exercise of the peoples right to self-determination since jus cogens is a
ground for declaring a treaty invalid if it violates a jus cogens norm.
- an erga omnes. o It is erga omnes in the sense that States and no one else are compelled to respect the right to self-determination.
- It is mentioned only in the UN Charter and the succeeding documents including the ICCPR (International Covenant on Civil and Political
Rights), ICESCR (International Covenant on Economic, Social and Cultural Rights) and even the 1970 Declaration on Friendly Relations of the
General Assembly;
- there is no specific document, convention, or treaty that recognized the right to self-determination but despite the lack of documented
recognition, it has been a recognized principle in International Law.
- It all started in the decolonization period when colonies started to assert their independence against parent states and usually that happens
when colonies started to resist certain policies, practices, dogma, political principles of the mother state o e.g. the 13 colonies of the US, the
Americans then highly influenced by Baron de Montesquieu about separation of powers they resisted the monarchical form of government of
England and that started the revolution.
- One of the basic documents dealing with the right to self-determination is the 1949 Geneva convention, theres a declaration on the right of

If that fighting is on the basis of any of those then we say you have what you call in international law, when theyre exercising the right to
self-determination-- national liberation movements. (Others call it freedom fighters although freedom fighters have a lesser legal meaning
than national liberation movement.)
- You will study later on in International Humanitarian Law that theres a distinction between an international armed conflict and an internal
armed conflict, if you talk about international armed conflict there are rules applicable to that, there are also rules applicable only to internal
f a State and an
organized group, an organized armed group within that same state or

(Different Geneva conventions would apply to that, except to the extent that there is a common article 3 of the four Geneva conventions)
o It was mentioned in the case of Kadic v Karadzic. If the conflict occurs between an organized armed group and the regular armed forces of
internal armed conflict.
national liberation movement and therefore it is important to check whether that armed group is
exercising the right of self-determination because if so, then the conflict should not be characterized as an internal armed conflict but an
international armed conflict. In that case, although theres no third sate is involved, despite the conflict still being within the state yet it is
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 46

called an international armed conflict. Theres a separate set of rules governing international armed conflict. In addition, since it is now
considered international armed conflict, the group will now be governed by the laws of war.

In Government of Hongkong v Olalia the SC recognized the elevated status of individuals in modern international law.
The problem of secession vis--vis the right of states to territorial integrity, there really is a conflict between the two.
Reference re Secession of Quebec
Facts: Quebec wanted secession from Canada and the SC was asked to render an opinion on the status of Quebec.
Issue: WON Quebec could be granted the right to secede.
Held: There was a discussion about the nature of the right to self-determination and the discussion about unilateral secession because if it is
done bilaterally by the State, there shouldnt be a problem. The problem arises if it is unilaterally done. Relevant points:
- Secession is not authorized by the Constitution of Canada and therefore congress or government body of Canada cannot be compelled to
grant the request for secession and no duty to do that
- international law does not specifically authorize nor prohibit unilateral secession, it is not clear if international law authorizes this unilateral
secession. o One argument was: if there is no specific prohibition then there must be implied authorization (this is more of a common law
thinking).

Issue #2: States have the duty to recognize the right to self-determination, but the question is whether or not unilateral secession is similar as
the exercise of the right to self-determination. Is the exercise of the right to self-determination equivalent to the right to secession? (It is clear
that the state must recognize the peoples right to self-determination, but does it mean you will allow unilateral secession? Not necessarily!)
Held: The Opinion of the Court is that the exercise of the right to self-determination must be within the framework of sovereign states and
consistent with territorial integrity of the State. Right to internal self-determination and right to external self-determination was distinguished in
this case.
- INTERNAL self-determination: o If the national government of a particular state recognizes the different culture, traditions, practices, history
of that particular group (even the determination of peoples is problematic like who should compose this peoples). The national government
will recognize their right to self-determination without this peoples being separated from that national government.
o A good example is what we do in the Philippines, we grant them autonomous status: you have different personal laws we will not insist in
one family law or one civil code, we recognize the differences in practice, you have your own holiday, own practices.
- On the other hand when is the right to EXTERNAL self-determination considered as a right? o In situations of former colonies where people
is oppressed or under foreign military or denied meaningful access to government in order to pursue government,
o if efforts on the part of this group to practice internal self-determination has been rejected, not recognized, suppressedthat is when you
have the right to external self-determination, this is where secession may come in. In this sense, secession is exercised as a last resort.
o The moment the government denies access to governmental processes, the right to unilaterally secede ripens and what will result is an
armed conflict.
o It is a factual issue determined by the international tribunal on whether or not the right to external self-determination has already ripened into
that right.
o It is important to know if it is in fact an exercise of external self-determination because then it will be considered as an international armed
conflict and one set of International Humanitarian Law will apply, taking note that there are certain crimes that could only be committed during
an international armed conflict. If there is NO exercise of external self-determination, while there is an armed conflict it will only be considered
as an internal armed conflict.

Principle uti possidetis


Applied to colonial territories when they are given independence, the rights of these colonies as regards to their boundaries is for other states
to recognize the boundaries of that colonial state when it against independence as empiric boundaries of that new independent sate,
automatically. Many of the controversies in IL are about territorial disputes, so we dont want that even the grant of independence to colonies
will still spawn controversies at the international level, it will at least settle the issue of territorial boundaries.
Tonight well talk about international law and municipal law. One important topic in statehood is recognition of belligerency. We mentioned
about recognition of state, recognition of government, but there is also a need to examine the effects of recognition of belligerency. Who are
belligerents, by the way? We call the belligerents in international law because they have accomplished certain conditionsstatusin
international law. If you use the term insurgents, in international law, thats different from the term belligerents.
In PIL, there are what we call the elements of belligerency, and these are: (1) organized civil government, (2) occupation of substantial
portion of territory. Also, (3) the threshold of belligerency points to the uncertainty of the outcome between the government and the
belligerents. And of course, (4) the belligerents are able to observe the laws of war. So we are talking about the possibility of an armed
conflict where armed groups in a particular territory are engaged in such level of conflict with armed forces, with the government, and so
probably they will be governed by the laws of war.
Short of the aforementioned elements, you can probably call them insurgents rather than belligerents. New Peoples Army, for example, are
insurgents, because they have yet to establish an organized civil government. The government of Emilio Aguinaldo was a good example of a
state of belligerency as against the Spanish crown at that time. Precisely, Aguinaldo declared independence in Kawit, Cavite, occupied the
bridge, and established a civil government even if all along Spain was still saying that it was still in control of the Philippine Islands.
The State is interested in determining whether the armed groups may be considered belligerents. Because if they are belligerents, there is this
issues of whether or not they will be recognized as belligerents. And what would be the effect? Note that before recognition, these rebels will
be subject to local or domestic laws. You can sue them, therefore, for rebellion.
But the problem, however, is if in the course of belligerency, the belligerents will cause injury to third persons. As when, for example, it will
take as hostages diplomats of a third state not party to the conflictor perhaps the third states citizens. And that third state will now sue the
rebels. Will liability attach to the state party to the conflict? Thats why recognition is very important. So if you believe that they have to be
acknowledged as belligerents, then it is but proper that they should be treated as a separate entity. Thats the effect. If you dont recognize
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 47

the belligerence, they you dont recognize the group as having a separate personality in international law. So if they dont have separate
personality, then they are subsumed in the personality of the state. And therefore, the effects of the acts of the rebels may be imputed to the
government. Thats why once recognition is done, it is given an international-person status. So you cannot sue them under domestic laws
now. You cannot sue them for rebellion, because rebellion is a domestic law. You sue them for war crimes and other crimes under
international criminal law rather than suing them before domestic courts for violating domestic penal law. Therefore, for damages caused by
these belligerents against third states, the state party to the conflict will no longer be held liable. This is a basic principle in PIL.
Then you also have to look into the effect of the concept of the doctrine of state continuity. If there is change in government, change in
people, the state continues to exist. What is an example of change of state? Or rather a change in sovereignty, as opposed to a mere change
of government or administration? Example of change in government: change via constitution, which is called constitutional change. But there
can also be extra-constitutional change in government, which is change via will of the people by the exercise of the right to revolt.
But if a state is ceded to another authority, then there is a change in sovereignty. So you dont talk about the doctrine of state continuity in the
case. So we were ceded by Spain to the US, then we became part of another sovereignty (US) from the sovereignty of Spain. So there is no
state continuity there because there is change in sovereignty. What is the relevance of this one? Status of statehood, yes.
There is another relevant and corollary principle to change in sovereignty. This is state succession. When there is a change in legal
personality of a state, state succession occurs. This involves substitution of sovereign. This is what I mentioned earlier. So there will be effects
in treaty and international obligations.

Not all contracts partake of proprietary or commercial transactions on the part of the government. Even in international law, we distinguish
between jus imperi and jus gestiones. On the part of Opressia, it must argue that this is still governmental because of the need to protect its
people from famine and so this act of not continuing with the contract is governmental and therefore it can invoke the pricniple of State
Immunity.
We have lots of means of enforcing jurisdiction outside the territory of a particular state and it should be based upon certain theories. There
are two kinds of Nationality Theory namely ACTIVE and PASSIVE Nationality Theories.
ACTIVE Nationality principle states that a state may prosecute its nationals for crimes committed anywhere in the world.
PASSIVE Nationality principle on the other hand is suing an foreign entity because of a crime committed against your national.
There are likewise two kinds of territoriality of principle namely SUBJECTIVE and OBJECTIVE. Distinguish first however as to where the crime
is committed and consummated.
Under the SUBJECTIVE aspect of territorial jurisdiction a sovereign is recognized as having the power to adopt criminal laws that apply to
crimes that are PHYSICALLY COMMITTED within his territorial borders.
Under the OBJECTIVE aspect of territorial jurisdiction a sovereign is recognized as having the power to adopt a criminal law that applies to
crimes that TAKE EFFECT or are CONSUMMATED within its borders even if the perpetrator performs the act outside of its borders.
Example: The perpetrator is in state A and he shot with his long-range sniper rifle the victim in State B.
Under Subjective Territoriality Principle, which court should have jurisdiction? State A or State B? Or, should we distinguish between where
the crime was committed/started and where it is consummated? Student: Sir, Subjective would be applied to the offender is State A while
Objective Territorially would be applied to the victim in State A.
Now, if we dont apply Territoriality Principle, is there any other principle we can apply here? If it is the case of General Hanaku in the crimes of
Money Laundering and Drug Trafficking. Murli: Protective Principle Sir. Atty. Largo: You got it Mr. Bristol! What is the nature of this Protective
Principle? It is the principle where jurisdiction can be acquired notwithstanding the fact that the crime occurred outside of the states territory
as long as such crime affects National Security and the Governmental Functions of the said state. Atty: In this case, this one affects the
National Security you said? Will you not distinguish between Money Laundering from Drug Trafficking? Murli: Certainly sir Drug Trafficking
poses a threat to the national security specially that the in the example it involved the state in the business. On the other hand, it seems
unclear whether or not Money Laundering would cause tension in the National Stability and Security. Would protective principle apply in the
case of US v. Vasquez, this one is actually a murder case. So, probably we could talk about Nationality Principle because the victim was an
American. If we insist on Protective Principle, would that apply considering it was a murder case? Not a crime that will affect the National
Security? In other words, if we apply Protective Principle, are to characterize the crime also? Murli: Yes Sir. Atty Largo: So, not all crime would
fall under Protective Principle? Murli: I affirm Sir. To explain further, the crime of murder may not actually affect the states ability. Following
this line of thinking sir, Money Laundering is not the type of crime that may necessarily affect National Security.

So we are done with the principles of Territoriality, Proctective and the rest which means that in other words, this exercise tells you that you
can actually invoke one, two, three or four means of acquiring jurisdiction over a particular crime. So, other than that, is there any other
principle that you can use in order to locally acquire jurisdiction? We are still in number 2 by the way. Wala na may laing nabilin dinha, unsa
paman? Universality Principle. So if it is Universality Principle, what is the nature of it? Student: It contemplates of the principle of obtaining
jurisdiction over crimes committed outside the territory which may be committed by foreigners. Sir: But in what particular crimes would this
Universality Principle be applicable? Student: If it is violative of jus cogens sir. Sir: Are you saying that is not applicable here? For Money
Laundering, maybe, but for Drug Trafficking, dont you think it is an international crime that should be dealt with very strictly and we should be
liberal in allowing the states to acquire jurisdiction?

Student: Yes sir, but we have to qualify first whether it is criminal or civil. If it is criminal, then it is said that it is usually linked with Territoriality.
From the example, Money Laundering and Drug Trafficking are criminal case, not civil, hence it should be limited. Sir: How about this case of
US v. Osama Bin Laden, it is a criminal case It relates to the crimes Bin Laden committed beginning 1988. Student: If it is a violation of
human rights and when the states or the international community consider it as such (crime). Sir: What crime was commited in the trial of John
Demjanjuk? Student: War Crimes. Sir: Where were the crimes committed? Student: In Poland. Sir: And where was it prosecuted? Student: In
the US.. Sir: So applying the Universality Principle, he can be prosecuted anywhere? In other words, he can also be prosecuted in the places
other than the US? Student (Gerlyn): Yes Sir. Sir: It did not matter who the victims were? Student: Yes sir, it did not matter.
Group 1: Does the Amnesian government have the duty to extradite General Hanaku? Gerlyn: It will depend sir because as a general rule:
states do not have the duty to extradite. However, if the conditions of the Extradition Treaty are met then it would create a duty by on the
requested state to hand over the person to the requesting state. These conditions are the following: a) There must be a Treaty b) The person
to be extradited had been charged or at least convicted of extraditable offense, and c) The extraditable offense must be identifiable, either as
listed in the treaty or if not listed, at least covered by the so-called double or dual criminality principle or dual criminality clause, which means
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 48

Thisaiscrime,
that
sometimes
although
a controversial
not listed, orissue
offense
probably
not listed
because
in theoftreaty
the difficulty
but had been
of accepting
commonly
the emergence
punished byofthe
new
domestic
states and
laws
also
of with
both reference
the
to
requesting
the
effects of
state
recognition.
and the requested
So we have
state,here
thensome
it can
effects
be considered
of state succession.
as an extraditable
I think you
offense
learned
subject
thisof
inextradition.
your ConstiSir:
1: transfer
It is notofclear
allegiance
in the of
problem whether
inhabitants,
political
there
laws
wasare
a treaty
automatically
or not but
abrogated,
what is definite
non-political
is that laws..
there was
you aknow
request
already
for extradition
how to distinguish
and a request
political
for execution,
law from non-political
why is it
relevant
law
right?
toYou
determine
remember
the existence
your Consti
of these
1. If ittwo?
involves
Alright,
relationship
let us go between
to this Case
the of
state
USand
v. Alvarez.
inhabitants,
There
anywas
lawanthat
extradition
affects that
treaty
relationship
between US
is
and Mexico
political
andbut
so ifjust
there's
the same
a change
albeit,
in he
sovereign,
was abducted
that will
by cut
the off
US that
thenrelationship
he was prosecuted
and therefore
in the US.
political
It was
laws
even
must
a violation
be abrogated
of thebecause
extradition
you
treaty
are
cutting
because
off the
abduction,
relationship
as a last
between
resort,the
shouldnt
inhabitants
be exercised
and the state
by any
and state.
a newWhat
sovereign
can you
is put
sayinabout
place.
that?
Non-political
Gerlyn: USlaws,
Supreme
they will
Court
have to
postulatedunless
continue
that when
inconsistent
there is with
no stipulation
the laws ofthat
theabduction
new sovereign.
is prohibited then it is not a violation. Sir: US even further added that Mexico was
already aware of the formers practice in abducting criminals prior to entering into the treaty. Since it was not prohibited then it was allowed.
Meaning, it is not required that an extradition treaty be made in order to capture an erring criminal thru abduction and prosecute him/her.
The
stateThat
therefore,
this one
important
sovereign
state hasabduction
the optionintothe
assume
Gerlyn:
only applies
sirisifan
there
was norule:
stipulation
prohibiting
Treaty.liability. Not in the case of government successionwe
and
means.
Sir:distinguish
What is thebetween
principlepeaceful
involvedmeans
here in
thenon-peaceful
case of Attorney
General of Government of Israel v. Eichmann? You would probably refer to the
Frisbie Doctrine and the case of Ker v. Illinois. Rule number one, if there is a treaty then abduction is not allowed because it is violative of the
treaty.
US were tothe
come
rule then abduction
not has
prohibited
if itwhether
is not prohibited
the treaty
itself. In what
abduction be
In
stateIfsuccession,
ruleup
is with
as fora obligations,
the new isstate
the option
or not to in
assume
the obligations.
As instances
to rights and
prohibited other
thanalways
the presence
of the
or a treaty the
prohibiting
Gerlyn:
Another
instance
mayof
justify
prohibition
of
privileges,
they are
inherited.
Buttreaty
for obligations,
new stateabduction?
has the option
to assume
them.
Verythat
seldom
course
that the state
abduction
is do
thethat.
violation
of for
human
which is aBut
universally
recognized,
established
and protected
rightwe
indistinguish
Customarybetween
International
Law.
will
have to
Maybe
somerights
consideration.
in the case
of government
succession,
that's when
peaceful
Sir: What
prevent the
ofchange
a lawfully
abducted person?
In International
law, once
there as
is used
an extradition
treaty then
abduction
change
of will
government
andprosecution
non-peaceful
of government.
The term
"peaceful means"
however
in international
law should
not is
prohibited.
Theliterally.
presence
or absenceour
of EDSA
stipulation
in the will
treatybeisconsidered
just what the
US said. means
Frisbeebecause
Doctrine,
allows
abduction
of criminals
abroad
be
interpreted
Otherwise,
revolution
as peaceful
it was
described
as bloodless.
That's
and the
authorizing
and"peaceful
compelling
jurisdiction
to a criminal
courtoreven
if the manner method.
involves So
abduction.
So what iswas
the changed
other via
not
meaning.prosecution
When we say
means",
that simply
means intra
via constitutional
if the government
are the other
abduction
be prohibited?
Group we
4? What
if the
abduction isfrom
accompanied
bybecome
torture?federal,
Acts in
alimitation?
revision ofWhat
constitution,
that'sconditions
a peacefulmay
means
of change:
from presidential
become
parliamentary;
unitary we
violation
of human
rights law? Do
you think the
court
acquire
over the itperson
of the accused?
So that means,
if abduction
there's
a change
in government
in accordance
with
the shouldnt
constitution.
But ifjurisdiction
it's via revolution,
is described
as non-peaceful
it is is done
neatly andas
assuming
that no extradition
prohibits abduction, then applying American Ruling, the foreign court can acquire jurisdiction
described
extra-constitutionaloutsidetreaty
the constitution.
over the person of the accused. Very Interesting Principles noh? We will talk about this next meeting.
The problem of secession vis--vis the right of states to territorial integrity
Now if the change is by peaceful means, the new government inherits all obligations. So there isn't much difference if it's by peaceful means.
Rights are inherited, obligations are inherited
But if it's by
Secession
of extra-constitutional
Quebec case
means, the new government has the option to reject political and personal obligations. So the new government
Relevant
has
the option,
pointsbut
discussed
the option
in the
is limited
case only to political and personal obligations. Common example in most textbooks would be that the new
government is now being asked to pay loan obligation or probably under a contract for the purchase of arms and ammunitions by the former
government
andisthis
of by
arms
ammunitions
was made
precisely congress,
because atorthat
time
the old government
government
One. secession
not purchase
authorized
theand
constitution
of Canada
and therefore
other
administrative
body orand
anynew
government
body
were
in armed
So the or
obligation
was
contracted
precisely
against the
established
So that is a political obligation.
of Canada
was conflict.
not compelled
obliged to
grant
the request
for secession
andnewly
no duty
also to dogovernment.
that.
Personal
obligation:
when
loan
obligation
for
example
but
the
money
had
not
been
used
for
governmental
purposes
but
for
corruption
etc.
For
Second. International law does not specifically authorize nor prohibit unilateral secession.
as long as they are not been used for public purpose then that is personal to that government and the new government should not be allowed
to assume. That's why the late President Corazon Aquino had that opportunity after the EDSA revolution because what Poland did after a
The other
therewere
was if
there
was notospecific
prohibition
then there
must be implied
authorization.
Or diWe
ba have
ingon-ana
ang thinking
martial
lawargument
regime; they
able
to refuse
pay personal
and political
obligations
of the dictator
at that time.
the option
to follow
because
law isBut
more
thinking
civilIlaw
thinking.
prohibition
not clear
andcommercial
the authority
is not likewise
also.
Wainternational
na unta tay utang.
thecommon
late Pres.law
Aquino
has than
reasons.
think
she wasThe
more
concernedisabout
future
transaction
on
clear.
But
is clear though
statesalso
havewhat
the duty
to recognize
peoples
rightdignity".
to self-determination but the question is, is unilateral
the
part
ofwhat
the Philippines,
and is
tothat
consider
she calls
perhaps the
"Filipino
secession similar as the exercise of the right to self-determination? Is the right to self-determination equivalent to secession? If you have read
the opinion of the court, what is important is to recognize the exercise of the right to self-determination but does it mean that you will allow
unilateral secession? Not necessarily. And so this is the rule. The right to self-determination must be exercised within the framework of
Now
as you
know
there arewith
non-state
actors inintegrity
international
law.states.
We just
have
to go
with
this Mao
very ni
quickly.
You have
internationalang opinion
sovereign
states
consistent
the territorial
of those
What
does
that
mean?
ang reason
nga well-quoted
organizations,
you
have individuals,
and youdistinction
even have of
corporations.
done self-determination
with the national liberation
movements.
(Did
Justice
sa SC sa canada
because
of a very scholarly
the so-calledI think
right we're
to internal
and the right
to external
selfLeonen
mention of the right to self-determination? Not so much noh? I think it's more on the extra-legal considerations, more on cultural,
determination.
social, and historical.) International organizations such as NGOs, we have examples here: Greenpeace, Amnesty International, and Red
Cross. And then I also mentioned about espousal of claims by the states as more of objects in international law. So only states can represent
them
in international
tribunal.
about that and
we'vestate
beenrecognizes
talking a lot
about self-determination
but practices
that's veryof a
Internal
self-determination
ifWe
thementioned
national government
of a then
particular
a different
culture, tradition,lately
history,
important
for you
to know
in that
regard,
individuals
may be the
considered
subjectsinofthis
international
law.to self-determination then we say
certain group.
Assume
that that
we can
identify
who
should compose
so-calledaspeople
peoples right
the national government will recognize the right to self-determination without these people being separated from that national government.
Thats why its called internal. A good example is what were doing in the Philippines (referring to ARMM).
When is the right to external self-determination considered a right? The international law right to self-determination only generates at best a
right to external self-determination in situations of former colonies where the people are oppressed, for example, under foreign military
occupation or where a particular group is denied meaningful access to government in order to pursue their economic, political, cultural and
social development. Meaning, if efforts on the part of this group to practice internal self- determination had been rejected, not recognized or
suppressed, thats where you have the right to external self-determination and this is where secession may come in. Probably this is a
corollary principle to the thinking of John Locke regarding the right of revolution. Diba the right to revolt is a right only when all the
constitutional mechanisms fail? So the right to secede perhaps may be considered a last resort because the moment we deny them access to
governmental processes, mu ripen nya ang right to unilaterally secede and when that happens, just like what happened to Kosovo, and in
other states, naai armed conflict.
If there is an occasion to bring a controversy before an international tribunal, it becomes a factual issue whether or not the right to external
self-determination had already ripened into the right to unilaterally secede and so it is important to know that because if it is not a right to
external self-determination, then while there is armed conflict, it can only be recognized as an internal armed conflict so one set of rules will
apply. If the international tribunal is convinced that indeed it is an exercise of the right to external self-determination, then it will be governed by
a different set of rules because it will be considered as an international armed conflict. And there are crimes that are not necessarily committed
in internal armed conflict and there are crimes that can be committed only during international armed conflict.
Principle of Uti Possidetis Juris
Applied to colonial territories when they are given independence. What are the rights of these colonies with regards to their boundaries? The
right here is for other states to recognize the boundaries of that colonial state when it gains independence as inherent boundaries of that new
state. Automatic na. why? Because most controversies in international law are about territorial disputes so we dont want that even the grant of
independence to colonies would still spawn controversies at an international level. Bhalag naai lain controversy bsta ang sa territory nga issue
settled na.
...there will be changes or effects in treaties and international obligations.
What is the clean slate doctrine in relation to state succession? So you don't talk about government succession ha. This is state succession.
You have to take note of this clean slate doctrine. In relation to obligations, what does it mean? (a classmate volunteered to explain)
402 ShineBrightLikeADiamond
Sources: 2012 Atty. DBL Transcriptions, Upperclassmen Notes, Google

Page 50
49