PIL Midterm Selfless Transcript 2

PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH.
403 2015-2016
|Selfless Notes|
Alegre.Barcenas.Cabahug.Calumba.Canda.DelaPena.Honoridez.Regalado.Tunacao.Yongco
In the field of law, the course should start with a discussion command. That is what Akehurst mentioned in his book. This
on the nature of the subject. It is public international law so is based more on consensus agreed upon by states rather
we begin with the nature and meaning of public international than imposed upon states.
law. This is different from the way we study our domestic
laws. So what characterizes it? What problems would it
bring?
We begin with the question, you must have encountered in C: Being horizontal, it means that it operates with the states
your readings that public international law is actually agreeing among themselves of the law to come up with,
described as a kind of legal system that is horizontal rather there might be a problem with the process.
than vertical so we start with that. If you analyze our national
legal system we described it as vertical in character while PIL The process with coming up.. So what you are telling
is a horizontal legal system. us is even in the formation of international law, it is
problematic. Why would it be problematic? The
Why is it considered as a horizontal legal system? Why formation of international law?
is it Horizontal in character, what makes it such? C: it is because the states are forced, they constantly pursue
C: unlike the vertical legal system, it is agreed upon by the their own interest so it could be that if the law operates
state so it is not imposed by a higher authority. against them or if it is disadvantageous they may not
concede to it.
So theres no higher political authority imposing PIL?
C: Yes. Rules that have not been agreed upon do not form
part of PIL?
Dont we have for example the UN? Does it not serve C: not necessarily sir.
as the higher political authority?
C: No. It is an international organization that is composed of So PIL is not really just based on agreement?
different states wherein they come up with convention and Yes.
agreements to implement and enforce rules and procedures
to govern the relationship of the states. But it doesnt serve Definitely of course if it is based on agreement, it is easy to
as higher authority, it is merely an organization that spot the problem we will encounter there. Precisely if it is
comprise of the states that agree with each other. based on agreement there is disagreement then that is the
problem.
If PIL is a horizontal legal system, what characterizes
a horizontal legal system? But what about the formation of international law that
It is horizontal because unlike the command theory of John is not based on convention, are there in the first place
Austin for example, we learned in Philo of law, unlike in a laws not based on convention?
positivist perspective wherein the law is imposed by a higher C: Yes, customary international law.
sovereign, PIL is more on consensus based rather than
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PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH. 403 2015-2016
|Selfless Notes|
If you know, how is customary international law formed since course, when we reach that chapter we will learn how to
you already introduced one problem in international law, but determine whether these elements are complied with. But of
you opened up the issue on the problem of formation course I confirm that even in the formation of CIL is really
because I confirm that through even in the formation of problematic.
international law it is also problematic unlike in our national
legal system there wouldnt be a problem especially in a Not only in the formation of International law, even in the
representative democracy or government where of course enforcement of international law.
the governed will simply be asked to obey laws passed by the
representatives. In the case of states trying to come up with Can you explain that? Why would there be problems
an international rule, the problem if it is based on convention with international law?
would be precisely the disagreement between states. But C: Because sir, a state has its own authority like or what we
in so far as Customary International Law is concerned which call individual sovereignty. A state may say that this law, that
is not based on convention generally, still theres a problem we will not adhere to this customary international law, so we
with CIL. choose to deviate from all other nations.
What do you think is the problem with the formation I said enforcement of International law, not compliance.
of CIL? Because what you are trying to tell us is: Sir theres a
C: I think it would be the substance or the law itself as well problem as well on whether states do obey international
as law, that probably would be my next question but I went
directly to the problem of enforcement.
Hold on, wala pa ta sources.
What it means is, for ex. Theres a judgment of an
When we study the sources of international law we will learn international tribunal like in the Case of Nicaragua vs the US.
that one of the elements of CIL is a uniform and consistent Nicaragua claimed around what? 70 or 17 Billion even up to
state practice and basically because we require some sort of the present although sometime in 1991 you know of course
generality of state practice where state practice is not Nicaragua was awarded in the Nicaragua vs US case, but
consistent or generally in regard to a particular norm then dont you know that even up to the present the judgment has
that norm can hardly become customary international law, not yet been satisfied. Of course there is this contention on
the other problem of course is that this norm is consistently the part of the US that it has not been enforced since in 1991
uniformly practiced by states with the belief that the norm is the administration of Nicaragua apparently waived the claim
legally binding, we call it the opinion juris requirement and even if Nicaragua had been favourably awarded. So truly
that itself is problematic because its a mental element. thereis a problem of enforcement. So its still problem but
Im not talking about the problem where states may not
How to tell whether the observant of this particular norm or actually obey international law, thats another story.
just for reasons of convenience but states do believe that the Assuming states believe that international law and when one
norm is really legally binding norm, it is difficult. But of violates international law then there is liability or
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responsibility. The problem is how to enforce liability and C: I think it confers authority upon the state that has received
responsibility? the favorable judgment.
Do you know why theres a problem in the Yeah but what if the judgment is to pay compensation
enforcement of international law? of 100 billion US dollars, in favor of state A and
C: I think its because of the independence of the state itself against state B. How will State A collect?
Sir that you cant just interfere with their rights. C: By reprisals..
Yeah but its in the same way that each one of us is Unlike in our regular courts that you have a sheriff okay,
supposedly autonomous. I mean, us individuals yet we where the sheriff can go to the bank and then garnish the
are compelled somehow by rules in our legal system. account of a judgment creditor. But in the case of the ICJ
Why dont we apply the same in our international law? what I was trying to talk about is at the international level we
C: I dont think it operates like that in International law sir. dont have actually:
Because for the reason that the states have their own 1. an international court the world court.
sovereignty.. the ICJ is not akin to a court.
This is for example, Im thinking about a situation where Do you know why? What is it with the ICJ that we cant
there is a favorable judgment by the International court of liken it to a local court?
justice. Is it not the ICJ may not be able to actually enforce its Theres a problem with jurisdiction because the ICJ unlike in
own judgment unlike in the case of our regular courts where our domestic courts its jurisdiction is based on
it can issue writs of execution, non-compliance also would consent.
amount to aground for contempt and if we are talking about
crim law then the individual may be sent to jail by force. But That is one of the problem areas when it comes to peaceful
that is not or that cannot be done in international law. settlement of disputes through the ICJ because the ICJ can
only do so much because of the requirement of consent. If
So whats the problem with the ICJ for example? one state refuses to submit itself to the jurisdiction of the ICJ,
C: I think sir the way they implement the judgment it is the ICJ cannot compel that state precisely as you have
regulated. I mean it has.. mentioned earlier we have the concept of sovereignty and
the very concept of sovereignty, the authority of the state
So theres a way that the ICJ will implement their must not be subordinated by any higher authority that is the
decision? basic essence of sovereignty.
C: By imposing sanctions.
If you have a situation where, a court or a tribunal can
The ICJ will impose sanctions? Unlike the case of the compel or precisely compel a state that itd be subjected to
court but the ICJ, can it impose sanctions? If it can, its jurisdiction then that diminishes the concept of
how is this possible? sovereignty. So that is basically naturally in PIL that almost
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everything is always based on consent. So jurisdiction of the Lets say bilateral treaty, these states signing now the statute
ICJ is based on consent. of the ICJ suits itself to the jurisdiction of the ICJ and of course
such submission to the jurisdiction of the ICJ should not be
But do you know that the ICJ while largely based on treated as a diminution of sovereignty precisely because of
consent, there is also what we call the compulsory what you learned in your Consti 1: the doctrine of self
jurisdiction of the ICJ? Yes? Have you encountered that auto-limitation.
in your reading?
C: Yes. Which states that you cannot actually diminish sovereignty
because sovereignty by its very essence can never be
In the case of Nicaragua vs US, the very first paragraphs of diminished otherwise it is not sovereignty at all, but what can
the case, dealt with the issue of jurisdiction because the US be diminished is exercise of thatsovereignty.
in the first phase of the case questioned the jurisdiction of
the ICJ then the ICJ said: ex. So if a state entered into a treaty or convention and
Well this is covered by the compulsory jurisdiction of the makes a commitment to perform a particular act and such
ICJ . performance of an act in a way limits the exercise of
sovereignty, According to the doctrine of self auto-limitation
And then eventually when the US, lost in the jurisdictional that imposition of its own limitation in the exercise of its own
phase, it announced its unwillingness to participate in the sovereignty itself is a manifestation of its sovereignty.
proceeding, and that is what China is trying to copy in this
case between the Phil.
By the very fact that a state enters into a treaty and
Well of course there is this idea of compulsory jurisdiction of
imposes upon itself voluntarily certain limitations to the
the ICJ but do not confuse this with the general conception
exercise of its own sovereignty, the doctrine of self auto-
that the jurisdiction of the ICJ is still based on consent
limitation is by itself a manifestation of such sovereignty
because the compulsory jurisdiction of the ICJ is still based
because if dili pa siya sovereign then that state will not
on consent.
be able to even limit itself.
How does this operate?
When states signed the UN charter and within the statute of
the ICJ, states were asked whether they are willing to submit **Does it make sense? Even that concept of compulsory
to the jurisdiction of the ICJ in certain controversies in jurisdiction of the ICJ that is still based on consent, advance
advance. So it did happen in the past that some states did lang. Take note of that because if your examiner is a
signed the statues of the ICJ and declared that whenever professor of PIL that can be a very good question in the bar.
there is a controversy arising out of a particular subject
matter. Explain the compulsory jurisdiction of the ICJ, does it
diminish the states sovereignty?
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|Selfless Notes|
So you can say that the jurisdiction of the ICJ is problematic affirmative action on the part of the Security council. That is
and the other of course problem that we encounter in a single veto of the security council it has to be unanimous.
international law is the enforcement of international law. The Same thing with what happened to Syria.
answer? Not only do we lack a world court we also dont have
international police. Much less international tanods, walana. When news erupted that somehow the government of Syria
used some sort of biological weapons even against its own
But diba Sir there is a security council? can we not citizen violating therefore human rights law the US wanted
liken it to an international police? to take action, it asked the security council to authorise the
Have you not observed it in the news that if a state US because actually you can use that. Its either you ask the
misbehaves, more often than not the Security council will security council to take military action by the security
have to send troops prevent any atrocities committed by a account or you can ask for authorisation. You can tell the
misbehaving state like Syria for example. Security council:
So, why cant we liken the Security council to an dont worry you dont need to deploy your UN troops, your
international police whats wrong with the security blue beret troops. We can do it on our own, just authorise us
council?
1. legally and politically limited. The use of force will be justifiable, of course that was not an
option because Syria was a good ally of Russia and Russia
Why politically limited? will never give its vote in favour of such military account by
Of course political reality whether you like it or not theres the US since Syria is an ally because of oil, as a main supplier
world politics. Its a fact. of Russia. So politics really is working there.
Ex. Remember what happened to Ukraine, involving Crimea We dont have an international police precisely
and in relation to Russia. So Russian military forces invaded because of the what you call legal and political
and occupied Crimea which is a part of Ukraine, the US problems surrounding the institution of the security
resisted that because thats what the US will do almost council.
always. Youre big brother image, it wanted to of course ask
for the consent/authorisation of the security council to use A: What about the case of Afghanistan? Did the
force against Russia. But of course it did not even bother Security councilauthorise the deployment of US
because the security council consist of 5 permanent troops?
members and one of the permanent members is no less than Yes of course. So its either the security council itself. ..which
Russia. part of the history of Afghanistan were you talking about?
Why is that important? Well thats one of the areas of public international law.
It is important because a singular veto by one of the 5 will Unilateral use of force or military intervention when is it
not result to a positive action or will not authorise or really justifiable. You get to understand this later when we
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talk about the use of force discussed in Nicaragua. Why? Are you looking at states with some sort of
altruistic feelings? They want peace in this world?
Problem with the formation of international law: P: I think sir, the outlook of these sovereign states is to
lessen any problems to encounter with other sovereign states
1.So theres: enforcement you have the problem of so they conform to more or less so that it would discourage
formation because one if it is conventional law, problems to be encountered.
disagreement,
2. If it is CIL the problem of consistency, uniformity, Can you contextualize that? So for example why
generality. should state A obey a particular international norm?
3. The problem of identifying exactly opinion juris Because it wants peace and order?
element is complied with because it is a mental P: Yes Sir.
element. Whether or not in fact states observe a
particular norm because of the belief that it is So youre looking at the state as something that
legally binding. transcends self interest that it would really want
lasting peace in the world? If inganapalang class then
world peace, thats what we mean.Its like a question in a
Not only in the formation are there problems but also in the beauty pageant. But it may be true, of course, the good thing
enforcement of international law, we dont have a world about international law is very few rules are fixed and even if
court, you have the ICJ but its jurisdiction is largely based on they are fixed somehow they evolve, they develop. Then
consent. If ever parties have submitted themselves to its probably yes. But to be realistic about it, most states are
jurisdiction any judgment can hardly be enforced because we interested in their own interest than the interest of
dont have an international police. We have the security the entire community.That explains why we have the
council yes but there are problems in the institution itself problem on climate change. Because if we are responsible
both political and legal. Veto rule for example is a and all we want is to save mother earth, then there would be
problematic institution in the security council. no climate change. But the thing is that all of our activities
are geared towards promoting our own self interest.
Even if theres a problem in the formation of International law Development for example s a major concern of every state.
and the problem of enforcing international law, we ask the
question is it not the fact that despite these observed The preservation of the environment is a secondary interest.
problems states do obey PIL. And so we ask the question: That would take a lot of altruistic feelings from the state.
Thats difficult because you cant even expect altruism from
Why do states obey international law? individuals states pa. How many of us are selfless? Its human
P: although there are problems with international law the nature to be selfish.not less you become a buddha under
states would prefer to abide by the laws to have unity or buddhism, the enlightened one, kana pwede.
place within the community of states.
The other reason perceived as a reason why states do
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observe international law is that it is a reciprocal

thing. They obey international rules with the expectation Thats still to the best interest of the state? To comply with
that other states too obey international law and that would the terms and conditions of trade agreements because it will
favour all states alike. definitely improve the economy of both states? But maybe
you are talking about one of the theories on why states
For example if two states are entering into a treaty of observe international law, sometimes because of this
extradition. State A has citizens in State B. A citizen is to be psychological fear of sanctions. Thats the opposite now of
prosecuted in State A s country, of course you cannot self interest or maybe its the same. The negative way, fear of
forcibly abduct. What you can do is you enforce it through sanctions.
the usual process of extradition assuming there is an
extradition treaty. So under the principle of Whats a doctrine of self help by the way?
pactasuntservanda, agreements or stipulations of treaties (From Use of force: war and Neutral Peace Treaties kay I cant
must be complied with in good faith. Pactasuntservanda. understand kay sir.)
So if we have for example a treaty, international law In a broad sense: the unilateral protection and enforcement
mandates that State X should comply with that obligation. By of rights characterizes one of four possible ways of
entering into an extradition treaty, State Xs obligation is to managing an international conflict.
honour State Bs request for extradition. When B makes a -the others are inaction which could also encompass
request that X extradite Bs citizen so that he will be withdrawal -> negotiation between the parties in dispute and
prosecuted in your country I will be obligated to favourably listing the help of a 3rd party as a go between mediator,
grant the request because of the obligation that if it happens arbitrator or judge.
to our state and we make the same request in you -the legal literature indeed often uses the term self help in a
government we also expect you to obey. Of course this will broad sense not so much as an independent concept but
be in the best interest of this state. Diba selfish siyagihapon? rather as a heading under which various traditional doctrines
Theres nothing wrong with that because it is part of human of international law allowing unilateral measures in
nature. Thats like falling in love, part of human nature. Just international conflicts are treated (ex. self defence; reprisal:
make sure it falls in the right person. intervention;->retorsion;->nonrecognition; blockade or
termination of contracts.
Thats one, what do you think are other possible
reason for observing or copying with international (Masabtan portion na) The term self-help should
law, other than self interest? therefore be reserved to reactions against violations
P: If there are any misunderstandings or conflicts between of a states rights that do not occur in the form of an
states it would also affect their economy.. armed attack.
This is related to the problem of enforcing, we dont have
Just because a state is involve in a conflict it will international police, world court so we ask the corollary
affect the economy? question, if we dont have such things, how do we enforce
P: if for example they are trading partners. international law, other than relying on the chance that the
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state will comply international law for whatever reason. maayokaayomanghatag, generouskaayo why? Because thats
good for business. So sometimes be careful with persons that
But let us assume it does not believe in international are too generous, Im not saying that suspicious ta all the
law, it will not really comply with international law, time but its a fact of life, there are people who would do that
what are the other ways by which we can compel because of some expectations thats in the future. The
states to obey international law, this is where the foreign policy of the US, economic aid because maybe sooner
doctrine of self help applies? or later, that recipients of these grants or aids may be of use
We cant sanction the injuring state through a higher to US interest. And The Phil is one of those. Who are unlucky
authority because there is no higher authority. Remember in the radar of the US because of our strategic location in the
that international law is based on consensus. So we pacific. Theres no way the US will give up the Phil no way.
police ourselves in a way. So the doctrine of self help
complements the theories on why states observe So Nicaragua was one of the recipients of economic aid, so
international law. when US discovered that suspended niya and eventually
cancelled it in the third quarter of 1981 because there are
P: the other party wasnt able to get the judgment it usually two forms of self help:
deserves 1. Retorsion - is a lawful act which is designed to injure the
S: but not only that, even if there is no judgment yet wrongdoing state -for example cutting off economic aid.
somehow compliance to, obedience to international law can 2. Reprisal - are acts which would normally be illegal but
be demanded of a state like what US did to Nicaragua. When which are rendered legal by a prior act committed by the
the US perceived Nicaragua as having supportive logistically, other state.
financially and militarily the rebels or guerrillas in El
Salvador, an ally of the US. Distinguish?
Retorsion is a lawful act so if you do that no international
The US had some sort of a mutual defense treaty with El legal consequences. Whats an example of a retorsion?
Salvador. The gov of El Salvador was fighting against rebels -cutting off of economic aid.
and El Salvador didnt have a friendly relationship with
Nicaragua. Nicaragua was accused of supporting the rebels in Of course because no one is compelled to be generous. If you
El Salvador because Nicaragua at that time became a cut off economic aid that is perfectly legal so when the US
communist state, and El Salvador on the other hand was suspended and eventually canceled its economic aid that
capitalist. That is why ally of US. So this communist gov of was actually trying to tell Nicaragua: hey Nicaragua obey
Nicaragua supported allegedly to the rebels in El Salvador. international law, do not intervene with the affairs of El
The US discovered that, the US sometime in January 1981, Salvador. So thats how states tell other states to obey
suspended its economic aid because Nicaragua was a international law.
recipient of economic aid from the US.
The intense form of self help is reprisal.
You know that foreign policy of US is akin to a merchant, Illegal expropriation by some states. There is such a thing as
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extrajudicial expropriation. No court proceeding. A property And we have already studied the various reasons why states
or business is taken by a foreign country without due process observe international law.
of law, no compensation and all and so the injured state can
also do the same to the companies or whatever in the In brief:
territory of the injured state. So thats illegal because you Why do States obey?
cannot as a general rule expropriate without just 1. It is a reciprocal thing.
compensation. Due process is an international accepted 2. Fear of sanctions
principle of international law so that is what you call reprisal.
Were looking the problem of enforcement, yet we are looking II

at the ways by which, despite the problem, states may be
compelled to observe international law. Dont forget the Evolution of International Law
doctrine of self help.
To know how it evolved, we look at how it is defined by the
After all this discussion do you honestly believe that authorities of the matter and viewed from the auspices of
international law is a true law? This question should be utilitarianism as we learned last time where international
settled first on agreeing on certain assumptions and this can community had viewed states as the only participants in
be done by using several lenses perspectives or views of international law and therefore at that time of course then
what law means. considered the only subjects of PIL. So you add the traditional
definition of Brierly himself when he said that PIL is a body of
If Austins command theory is used, international law can rules and principles of actions which are binding upon
never be a true law because there is no higher authority to civilised states in their relations with one another.
speak of. But that is not the only lens.
If our idea is law is law because it is binding, then the Traditional Definition: J.L Brierly (1881-1955): the
conception of law in accordance with HLA Hart. Case theory body of rules and principles of action which are
on primary and secondary rules that the primary rules are binding on civilized states in their relations with one
binding only when they are in accordance with secondary another.
rules. So law can be perceived on the basis on whether it is
binding or not. If it is not biding then it may not qualify as a
law for that perspective but here, international law can be As I have said, utilitarian belief have contributed to such
binding. Yes? thinking and even in the Philippines we started to veer away
Q: PIL can be considered as true law since anything that from the idea of utilitarianism even only upon the adoption of
coerces the states to behave in a particular manner is to be the 1987 consti.
considered as a law.
For example, what did the 1935 and 1973 constitutions say
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about the role of the government? If you have studied even your modern definition of modern international law.
our past constitutions? And distinguish it from the way we
perceive the role of the government under the 1987 Of course your contemporary and post modern definition as
constitution. already mentioned in your outline would have to be that
which would have to be framed by the US restatement, the
Remember that even in the 1935 and the 1973 constitutions third restatement of the law institute of foreign relations.
the role of the government was perceived to promote or
rather to protect the state. Our conceptions of what matters
in our society as referring to the interest of the state had Postmodern Definition: Sec. 101 Restatement (third)
been changed in the 1987 constitution because under the of the law by the American Law Institute of Foreign
1987 consti, instead of declaring the role of the government relations Law of the US (1987): rules and principles
is to protect the state that is no longer the case. of general applications dealing with the conduct of
states and of international organizations and with
Whats the role of the government now under the
their relations inter se, as well as with some of their
1987 constitution?
relations with persons, whether natural or juridical.
To protect the people.
So from state to people. So we started veering away from

that utilitarian concept in the same way that the international Now dont confuse this with the idea that why refer to a
law also developed instead of simply looking at states as the domestic document in regard to finding a better definition of
only relevant actors in international law. PIL when as we have learned last time. PIL is basically a legal
system based on consensus rather than command. So why
The modern definition of modern international law already look at some sort of document found in the domestic regime
infused non-state actors as well and thats how we call them of the US. Well, after the US made such a definition, how did
by the way in PIL. We distinguished between state actors the rest of the international community react to such
and non state actors and many times well be referring to this definition?
in different issues in PIL ranging from liability responsibility
effects of state actors and non state actors. So Hackworth The reaction was affirmative and in fact widely accepted by
already added other entities which have been granted many authors and so the idea is, the international community
international personality and this is where your advisory had put a stamp of recognition that this represents the
opinion of the right of the UN for example to make a claim at modern definition of PIL. If you look at the definition, that
the international level as a result of the death of an officer of would now include not just states, or not just international
the UN in the territory of a nonmember of the UN. That is organizations but even persons whether natural or juridical
so this is where from your readings of Akehurst he mentioned
Modern Definition: G.H Hackworth (1946-1961): It is about multinational companies, NGOs apart from the UN of
that branch of public law which regulates the course, WTO, and the various organs of the UN including
relation of states and other entities which have been
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granted an international personality
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individuals. C: when it comes to persons, they dont have legal

personality because they will first seek the assistance to the
So if I may ask this question, a very good question a possible domestic law before going to the international and it will be
good question in the bar, and if we are to talk about those their country who will file a case to the international court of
that play active role in the formation of International law, to justice.
be governed by international law, we call them subjects of
international law. So a very good question in the bar would Is there a term to that process? Are you familiar with
be: the term of diplomatic protection or espousal of claim
process? Whats an example of that?
C: when the japanese people, the comfort women atty in the
How do you treat individuals subjects or objects of philippines, when they filed cases and suits because of the
PIL? Explain? abuses that was done to them by the Japanese people they
C: treated as objects of international law because they dont cannot go directly to the international court of justice
have the legal personality. because they have to seek relief from the Phil government.
What do you mean by legal personality? There should Was that the ruling of the SC that they cannot? Or
be added to that statement. They dont have legal there was no basis asking the government to
personality to what? represent them? Thats a relevant observation indeed, well
C: they dont have the capacity to file cases directly to since you have mentioned it. It was not because the comfort
international courts. women could not but it was simply because the SC
characterized the perceived offences committed by the
So including private corporations they dont have Japanese forces at the relevant time, rape for example as
personality? constitutive of war crimes among the war crimes was not yet
C: Yes. considered as CIL or jus cogens norms at that time of course
it was not CIL or jus cogens prohibition then the government
Are you sure? If a foreign investor in the Philippines for might bail in representing the comfort weapon although of
example is victimized by certain gov regulations as when for course they received a lot of criticism because it was not
example unreasonably expropriates or takes assets of that supposedly for the government to make that judgment, well
private corporations in the territory of the Phil, are you not it could have probably just well, they could have the guts to
aware for example that that Private company can actually say that well just test this at the international level.
sue the Phil government for damages at the international
level because the Phil has agreed to be sued actually before What you are telling us individuals are objects of
what we call the ICSID (I dont know unsani but, sounds like) international law.
so it may happen really that individual can even bring a claim
at the international level. What she was telling us class is this: true, the ICJ would only
allow states as parties to it.
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What it means is that when individuals are victims of If you think subjects of international law as those that are
behaviour of states like foreigners not treated justly and fairly governed and can derive rights under international law, then
because understand that we have a rule in PIL that a individuals can also be
moment a foreigner is admitted in the territory of another considered as subjects of international law.
state, that receiving state is governed by at least the
minimum standard of treating the foreigner fairly and Ex. We have the concept of the regime of international
justly. We call it the fair and just treatment of foreigners. humanitarian law, we call this the jus in bellum regime of PIL
When it happens that the receiving state violates even that what it means is that in times of armed conflict there is a
minimum standard it may give rise to state responsibility. The new regime applicable to the participants of the armed
offence is not against the foreigner maltreated by the conflict. This is of course governed by the laws of war. Later
receiving state but the offence is against the state of which on we will study the international humanitarian law and you
the foreigner is a national and it may be a case of diplomatic will learn that the primary objective of this modern field of
protection. international law really is to protect civilians and civilian
objects.
What youre trying to say is that since an individual
cannot directly present a claim at the international What this regime tells us therefore is: you see individuals
level, then an individual can never be a subject of are also protected by international law and the
international law. protection, the duty to protect is addressed to states.
So when states engaged themselves in war or armed conflict
Well if your perspective or idea of subject is on the basis of they are bound by certain rules and the rules essentially are
whether it can maintain a claim at the international level for the protection of civilians to the extent that states are
then individuals may be considered really as generally required to behave in a particular way in times of war in
objects of international law, but the answer to this question is order to protect the rights of individuals, civilians for example
that individuals are actually (generally) objects of will support the contention or view that individuals in this
international law but it doesnt mean that they will never be case are subjects of international law because they are
subjects of international law. accorded protection.
So the approach would be:

Another example as mentioned by Akehurst is a situation
Generally individuals are objects of international law where in an armed conflict for example it involves groups
but in cases and under certain circumstances exercising the right to self determination and when
individuals can actually be considered subjects of certain groups in an armed conflict exercise the right to self
international law especially if you change lens in the determination and they become what we call national
way we perceive subjects of international law. liberation movements because they have been subject to
some racist regimes colonial occupation and more or less
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similar discrimination then the armed conflict is relationships of international persons, states and other
characterized or is considered an international armed conflict international persons inter se (meaning as between them). A
where normally when there is no foreign state involved the private international law is also known as conflict of laws.
conflict will be characterised only as internal armed conflict
and not international armed conflict. The result would be Public vs Private International Law
since it is an international conflict then some provisions of
the 1949 GENEVA conventions will be applied especially Public International Law governs the activities of states
common article 3 of the four GENEVA conventions on the and other international persons/entities in relations to each
protection of captured combatants where they are generally other. It governs relationships of international persons inter
afforded certain rights as prisoners of war. Meaning, you se.
have a situation where there is actually no third state or
foreign state involved. Conflict is simply between the regular
Private International Law governs the activities of
armed force of State A and an armed group in the same state
individuals, corporations, and other private entities when
in the same territory but exercising the right to self
determination under the international humanitarian law, that they cross national borders and in controversies involving
is to be governed by International armed conflict rule and foreign element. It resolves conflict of laws.
therefore under the GENEVA conventions the combatants
captured by one of the belligerents will have to be treated or It is Private international law problem if the focus of the study
accorded prisoners of war privileges ex. prisoners of war is would be to look for the law applicable to a controversy that
sick then he has to be given medicine or would be allowed involves foreign element. So we have an example here:
access to reasonable medical treatment and other likes
appurtenant to prisoners of war. X a citizen of state A is the ambassador to State B and X
official archives and documents was ceased by the police of
So you notice mostly of the humanitarian law principles State B and he was subsequently subjected to State
protect individuals and so to that extent we can safely argue sponsored torture in State B. State A filed a suit for
that individuals may be considered also as subjects of compensation before the ICJ. Is State B liable?
international law. There is therefore good reason to adopt this This is governed by PIL because this pertains to the alleged
definition as reflected of the modern or rather contemporary liability of State B to state A.
definition of PIL.
Private international law problem would usually involve a
We need also to distinguish between Private and Public situation where for example the same ambassador in State B
international law for purposes of proper framework of what had funds in various banks in State B but also acquired other
we are studying. Do not ever think that just because a funds and properties in another state like State C and State
problem for example involves several states it is already a D. So when X died the question is, with law shall govern the
PIL problem it depends on what we are trying to talk about. distribution of the estate of X. In fact I think you have
So it is public international law if we are talking about the encountered a conflict rule already when you were studying
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family law in the first year. What is this contribution of treaty to PIL?
Probably we simply dealt with the concept of consti 1 here
HISTORY OF PIL we need to understand the contribution of the treaty of
westphalia.
Study the history of the PIL because we should expect for the
bar exams. You know of course the Treaty of Westphalia ended the 30
years war in Europe. If you know history, angmga colonizing
1625 - Hugo Grotius [father of international law] states before especially those largely influenced by the
published On the law of War and Peace [In 1609, he roman catholic church, the roman empire for example, one of
also wrote Mare Liberum (the freedom of the seas)] the unwritten mission was to of course plant the catholic
religion or at least the Christian faith in colonized territory. Of
course thats what happen with the Philippines for example.
Hugo Grotius. Who is he? It just so happens that in Europe, there was also the
Father of PIL in the sense that as early 1609. Hugo Grotius protestant religion and there were states that opposed to the
already wrote an important document that largely influenced catholic faith and so it started the war. That is why it was
what is known now as UNCLOS. Especially the freedom or the called the cold war.
various freedom of the sea now found in UNCLOS 3. This was
called the Mare Liberum, the freedom of the seas authored Eventually, states agreed to settle their differences and
by Hugh Grotius and of course at around the same time also ended the war by signing the treaty of Westphalia. Among
he was able to write already a book entitled on the law of war the important provisions in the treaty were the provisions
and peace. recognizing sovereignty of each states, it was then called
monopolization of power within a state, meaning in a given
territory there should only be one sovereign power so in
1648 - Treaty of Westphalia (Spain, Roman Empire effect any act by third states that would affect the exercise of
etc.) political power in the territory of another would be an
intervention or a violation of the sovereignty of that state. It
16th 17th centuries were the classical age of Public
also gave rise to the principle of co-equality of states,
international law
precisely no state can interfere or intervene with the affairs
1789 - birth of the term international law by J. of the other because of the principle of co-quality. So this
Bentham treaty of westphalia introduced us to the concept of
sovereignty of states and coequality of states. Of
Another important document is Treaty of Westphalia in 1648. course the term international law was first coined by a
This is important because probably the examiner of PIL is a Philosopher economist, Jeremy Bentham.
consti 1 teacher. And then he will ask what is Westphalian
concept of sovereignty.
1863 -Lieber Code (Lincolns General Order No. 100 or
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the Lieber Instructions), the first document that Nations was established, the precursor to the UN, it created
governs the conduct of war. the permanent court of international justice.
1922-1946 -Permanent Court of International Justice

The Lieber code is also an important document to consider. It (PCIJ) of the League of Nations, then replaced by the
has been considered as the document that governs the International Court of Justice (ICJ) of the Un
conduct of war and so thanks to Abraham Lincoln.
What was the Lieber code all about? Whats the relevance of PCIJ?
Diba Civil war in the United States? You know you have to The decisions of the PCIJ are still relevant even up to the
praise Pres. Lincoln for taking it upon himself to be governed present. I told you that when you research for the ICJ
by certain rules of war even though he wasnt actually decisions you go to www.icj.org even PCIJ decisionsis still
required to do so. found there. So thats the relevance of the PCIJ. It was
shortlived it was then replaced by the ICJ which of course was
When of course the civil war erupted where the southerners the court or tribunal under the auspices of the UN which of
wanted to separate from the union okay and so it resulted to course replaced the league of nations.
Southern vs Northern states and so civil war erupted. Lincoln
ordered his friend, a German National who had mastered 1948 The UN created the international law commission or the
military law to draft a code that will govern the conduct of ILC, tasked to codify international law. Now the relevant
war. It was called the Lieber code. From the authors last question always is what is the contribution of the
name, Lieber. So it contributed a lot to International international law commission.
humanitarian law for example on the rules of the conduct of In PIL we will be studying several conventions and normally
war. when you see a multilateral treaty that carriers the name
convention it is a multilateral treaty that had been created
1899 -Permanent Court of Arbitration upon the initiative of the UN. Because later on you will learn
1907 Hague and Geneva Conventions (there were four that treaties will be created or established in different ways.
Geneva Conventions in 1949) Like in a bilateral treaty for example that one state will
prepare the treaty and ask the other states to simply sign it.
Or that they meet at an international conference for
1907 Marked the beginning or ended the classical history of example, this is not at the instance of the UN but they are
PIL. States then began to voluntarily meet and enter into part of a loose association and so they meet at a conference
multilateral treaties and conventions in order to put an end and they decided to make a treaty.
to war and to make sure that combatants of war would have
to observe certain norms and so we have The Hague and the A treaty can also be established in that way or even an
Geneva Convention in 1907. Of course when the League of international organization can actually draft a treaty and then
present it in a conference. Like for example the ICRC
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(International Committee on the Red Cross) had been a armed conflict, environmental deterioration on a
contributing draft treaties in several conference and other worldwide scale, awareness of human rights
organizations. violations, rapid and vast increases in international
transportation and a boom in global communications
Now the moment, the UN initiates a convention, the one saw the importance and usefulness of PIL, which at
good example of this is the Vienna Convention on the law of this time began to establish new and modern areas in
treaties or the VLCT of 1969 which entered into force in 1980
international law (trade and investment, technology,
upon the establishment of a convention, you will note that
human rights, environment, space, etc.)
before it had been established, before ratified and signed by
states that undergone deliberations, discussion and so there
is what we call preparatory works to a particular convention
and normally the international law commission will be asked Its possible that the question in the bar example is:
to prepare the evidence of this preparatory works and What is the normative value of the works of the ILC in
therefore the interpretation of the International Law PIL? Or maybe what is the ILC? What is the normative
commission (ILC to a convention that had been initiated by value of its works in PIL?
the UN would be very helpful in interpreting treaties. So you The 19th and the 20th centuries of course saw the
have conventions that had also commentaries by the ILC. emergence of new areas in PIL why? This was the beginning
Every now and then the ILC would come up with certain of modernization,globalization and so therefore activities of
reports especially in certain conventions. The observation men got complicated as early as 19th century so there was a
therefore of the international law commission would be very need also to acknowledge that there should be some norms
helpful in interpreting conventions or treaties. governing this emerging areas in the activities of states. Well
talk about that later on.
Later on we will study interpretation of treaties and one way
to interpret a treaty is to look at the text and the Three regimes/Divisions of PIL
circumstances under which it was enacted, we refer to the 1. Law of Peace
context under which it was enacted but we also need to look 2. Law of Treaties
at the object and purpose of the treaty and since the object 3. Law of the Sea
and purpose of the treaty may not be readily available by 4. Diplomatic relations, etc.
looking at the convention or the treaty itself we might find
the discussion of the ILC helpful in the same way when we The Laws of War
study for example and try to look for the intent of the -Jus ad Bellum (legality of engaging in war)
framers of our constitution we consult the deliberations as -Jus in bello (legality of conduct of war)
well of the members of the constitutional commission. So
thats the relevance of the work of the ILC. The Law of Neutrality
-Governs the conduct of states not engaged in war.
19th, 20th centuries - the increase in global trade,
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III
Now here, very important. When you study PIL always
have this in mind: the whole body of PIL considered it The idea of a subject means that it can make a claim at an
as one pie and divided it into three. One bigger slice of international level
that big pie would have to be the law of peace, laws of war 2 aspects
and there are at least two regimes of the laws of war one we It can make a claim
call Jus ad bellum and ad in bello. It has rights
Diplomatic Protection
When you say Jus ad bellum, we will be talking about the
rules in justification in engaging into war meaning, are there o When a state lodges a complaint because of an
rules governing legality or validity of engaging in war. So injury suffered by its national in the terrirtory of
here we will study for example when will a state may validly the other state.
use armed force. o Must establish nationality
Functional Protection
Example, terroristic attack to more than 500 citizens in o When an international organization lodges a
France would that justify an immediate military action by complaint
France in regard to the supposed authors of the terroristic o No need to establish nationality
act? Ok. So example we have been talking about self defense
o Reason is it cannot perform certain functions or
whether there are some threshold to be observed, when to
invoke self defense. it cannot function effectively to make the
organization function without giving it
Thats jus ad bellum. Now the moment, war arises, whether it international personality.
is valid or not, whether it as invalidly engaged in or entered Subject of international Law
into states doesnt matter. The moment, armed conflict exists o Enjoys international legal personality
then it would be governed by another regime, we call jus in o It is only states that are subjects of international
bello regime or the legality of the conduct of war. Basically
law as a general rule.
this concerns international humanitarian law and of course
for those states not engaged in war. They are also governed
by another regime which is the regime of the law of Sources of PIL
neutrality.
Does art 38 of par 1 of statute of the ICJ enumerate the
How will they conduct themselves when some states sources of PIL?
engaged in war and they are not participants. So always take o It does not really say that the following are the
a look at this framework because you will see the relevance sources of PIL.
of this framework later on.
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o The context is when the ICJ decides a case they on how the law was formed. It talks about the manner or
will have to base their sources of PIL as listed in process of formation that made it binding. Example a treaty
par 1. can be viewed as formal or material. It can be formal when
o These are the sources of PIL in so far as the ICJ parties can be bound and they want to know why made it
is concerned. bind and the reason is consent. It can be also a material
o The international law commission said that source by looking at the subject matter. It made it binding
these are based on experts perspective on because it is found in the treaty. There is a provision in the
treaty that made it binding.
sources of PIL.
How do you distinguish?
What is the relevance of dividing the sources into
Refer to the definition of formal and material source in the
primary and subsidiary?
book of akehurst.
(mura wa man na tubag c mik2 ga recits ani)
IV
It can be a source in a universal application or it can be a
sources as between states.
Significance of distinguishing primary and subsidiary
A treaty can be a codification of customary international law
sources
or a progressive development of customary existing
Intended to separate the law creating processes. Meaning
international law. It can be a codification or an establishment
that international law will develop either by custom,
of a new customary international law.
convention, or general principle. Opinion of a qualified
publicist is not a subsidiary source. Opinion of a high
A treaty creates a new international law. Lahi ratong 2 states
qualified publicist is not a subsidiary source. But opinion of
kay ang uniformity or consistency requirements cannot just
the most highly qualified publicists is a subsidiary source.
be formed by 2 states, as compared with multilateral
Most Highly qualified publicists is a law determining
treaties.
processes because he only determines or locate the law that
leads to formation of an international law.
You have to distinguish a treaty where the parties are just
few because there is a sufficient practice of CIL that will
Is there a hierarchy of sources?
evolve into a new one.
In conventions or treaties it is binding between the parties
and it is international law between the parties. The name of
Relevance of formal and material source?
the treaty does not determine whether it is international law
Trying to find out the binding efficacy of the particular norm.
or not.
For ex if it is a formal source it is more than just a description
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Since we are talking about treaties as a source of PIL. The The state practice must be extensive and virtually uniform
relevance is to limit it to what we call as law making treaties. but recount only those practices of states whose interest is
It is a law making treaty if it general in application and affected. We call this as relevant state practice. We look at
mandates the observance to a particular rule of conduct. only the practice of those states that are specially affected.
Contract treaties are those more of a commercial in We dont count those who do not have continental shelf in
character. Those treaties made by private individual and relation to the north sea continental shelf case.
applies only to the parties of the treaty. Reciprocity also
what characterizes what a contract treaty is because it only V
applies to both parties.
In the case of Nicaragua what customary international
Custom law principles were discussed by the ICJ?
Custom as evidence to general practice accepted as law. One Principle of Non Intervention as one of the considered CIL.
is objective element or general practice. Second is subjective
element is the opinion juris. What did the US do that impelled the ICJ to talk about
the principle of non intervention?Was it considered by
the ICJ as CIL?
How was State practice established in the Paquete
Yes
Habana Case?
Fishing vessels doing commercial activities were held for What was the basis of the ICJ in say that it is CIL?If ICJ
public auction by the US as prizes of war. considered the norm as CIL and you will be ask whats
the basis in saying that it is CIL?
In this case state practice was evidenced by previous Automatic na class, you prove the elements.
treaties, and official acts such as judicial decisions, official
issuances, etc. made by the US and other states in relation to Is the particular norm a CIL? And you will answer yes
capturing of prizes of war. and you will be ask whats the basis?
Then automatic, state practice and opinio juris.
Is universality of practice required?
No, what is required is general practice. But the question here is just like in the Paquette Habana
case, you need to know.(Let us not talk about the state
How do you determine or establish general practice? practice for a while), let us talk about the opinio juris. How
did the ICJ conclude that the Principle of Non Intervention had
been practiced by states with the understanding/belief that it
There is no specific threshold in determining generality.
is a legally obligatory conduct?
In the North Sea continental shelf cases:
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What was the evidence of the finding of opinio juris the UN and all 193 signed the UN declaration, declaring that
that principle of non intervention is CIL? the use of force is to be prohibited, isnt it an indication that
It is not difficult to really locate state practice, we have these states do believe that the observance of the norm is
certain acts of the state that will indicate that the certain really out of the belief that is a legally binding norm or how
state do practice a particular norm so thats not difficult, else would they sign the resolutionwhat else?
though it would be quite a process of determination. But the
more problematic element would be psychological or What are the proofs of opinion juris apart from
subjective element because it is a mental element. declarations? What about treaties, convention?
In particular for example if you talk about opinion juris on the
Its hard to distinguish whether a particular behavior of a prohibition against the use of force and non intervention
state is such that it adhered to a norm because of the belief principle, number one proof of that opinion juris is general
that it is a legally binding norm or it is simply for the sake of assembly resolution 2625.
convenience. We have to find a way to establish opinio juris.
And the reason why we are reading Nicaragua case is we
want to see how the ICJ found out opinio juris in the principle What is it? What do you find in it?
of non intervention including the principle on the prohibition Its a list of certain principle or declarations of friendly
of the use of force. relations of the state. I think the first four declarations ( if you
have time take a look at 2625) it really speaks of the
Whats the best way to prove opinion juris? prohibition on the intervention of the internal affairs of others
It must be proven that the state actually follows. states, not to intervene in the political independence of other
states and not to interfere with the sovereignty of other
Are we just focusing on the US? Even in this case d ba, states.
gidebunk man gani na nacontention. We are not just to look
at the practice of the states involve in the case but we have There was a prohibition on the use of force, so what we are
to look at the practice of the other states. Not just the parties looking at is a resolution signed by a large number of states
to the caseso, again, we look at what? It is given that they as proof of that opinion juris. Conferences, and even the
practice the norm out of the belief that they are legally Montevideo convention on the rights and duties of states
binding norm. provide mandates on the prohibition on non interference, non
intervention as well as the use of force. So with all of these
The question is how do we establish that? included of course in the list are other numerous related
general assembly resolutions, then ICJ concluded that states
One way of looking at opinion juris is by looking at the acts of do observe this out of the legal obligation and therefore there
states through numerous declarations especially if it states is opinion juris.
about general assembly resolution ( general assembly gud na
class thats a plenary). It is a resolution agreed to by the Just to give you a list of the principles involved in the
member states of the UN. Imagine there are 193 members of Nicaragua case. Just so you will have an idea, the moment
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we will talk about this, well refer back to Nicaragua vs US. So I dont want to use the term adopted if it is CIL, I think the
make this as your framework, the moment we talk about the better term here is practice.
principle of non interventionthe prohibition against
violation of sovereignty of another states, the prohibition on So time is not relevant in determining CIL?
the use of force against another state, the right of self No sir.
defense which would require the threshold of armed attack
against the invoking state, thats also another important So a CIL can exist even for a brief period of time?
principle discussed by the ICJ thats why even if it is rather Yes Sir.
long case it does not matter because it covers several
principles anyway. In fact if you have studied Nicaragua case I dont want to really say that long period of time is irrelevant
you have already studied the entire discussion of CIL. There because actually you can make use of long period of time as
is a question definitely in the midterm exam.This is evidence of opinion juris because thats evidence of repeated
important, and it was asked in the bar exam several times. act, thats evidence of generality. I know what you are trying
to drive at, whatever case you have read in relation to this,
General CIL has been determined of course by the first Im sure you are talking to north sea continental cases, and
element, general practice of the states and as Ive said, not its called instant CIL law in Akehursts and its also called
just by the states party who are in dispute before the ICJ, accelerated CIL.
because the US was adamant that it was not practicing what
other states has been practicing. And opinion juris may be What it means only is that a short period of time will not
reduced from the attitude of the parties concerned and that necessarily bar the formation of CIL. But that is not the same
of states to certain general assembly resolution. as saying that long period of time is irrelevant. It simply
Like for example, if you will be ask in the bar exam, there means that a short period of time will not necessarily
might be a question difficult for beginners in PIL What is bar the formation of CIL, and so there is a possibly of
the normative value of general assembly resolution? instant CIL or accelerated CIL. Normally it happens when
While general assembly resolutions are not binding because there is a fundamental change in the international situation.
these are just resolutions, these are however reflective of the Normally instant CIL develops because of some important
opinion juris of a state. While not legally binding they have significant events happening in the international community.
normative value, that is the establishment or proving of And I think I made an example last time about terrorism
opinion juris. because of 9/11. So the world perceived terrorism differently
after 9/11 compared to before 9/11. So what used to be
What is an accelerated CIL? probably not acceptable universal criminal jurisdiction
Those customs or practices which did not go through a long applicable to terrorism, it may Im not saying it is at present,
period of time but are adopted by the states despite non but it may be a good basis for saying that even universal
passage of time. jurisdiction can be exercise in relation to terrorism. And
therefore, terrorists may be prosecuted anywhere regardless
of where the crimes had been committed. It is now emerging
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CIL but of course we can only surmise that thats the case you delimit now the continental shelf? There are two rules
until and unless it will be affirmed of course in a publication possible. Equidistance principle and Equitable principle.
of most highly qualified publicists and decision of tribunal.
1. Equidistance principle regardless of the distance
Why was it relevant in the case of the north sea between two points, you cut it into half.
continental shelf? What happened there and what was It may be possible that there is gradual
the issue? dropping and it so happens that the minerals are there. So
Germay was in an agreement with Holland and Denmark with state A may claim that dili equitable ang equal distance but it
regards to the delimitation of the continental shelf. should be the other form of delimitation which is equitable
delimitation base on equity.
What is a continental shelf by the way?
The sea is not part of the continental shelf that is governed In 1958 continental shelf regime truly advocates
by a different regime, it is governed by the exclusive equidistance principle, exception ang equitable.
economic zone. Beneath the superjacent water is continental
shelf and when it extends further when it is not slopping In UNCLOS, the first rule is agreement. Parties are required to
already then that becomes the seabed or subsoil it is first agree on how they delimit. If they cannot agree then the
governed by different regime. Up to 200 nautical miles, the equidistance principle will apply. Except, if applying the
superjacent water is governed by exclusive economic zone equidistance it will not result to equitable delimitation. Why?
regime. So kanang fishing rights and other living resources Because it says that equidistance shall be applied unless
above the continental shelf it is governed by exclusive there are special circumstances that would warrant the non
economic zone regime. Beneath the seabed or subsoil or the application of the equidistance principle.
continental shelf of course there are minerals, thats
governed by another regime, continental shelf regime. And of The problem in this case is that Netherlands and Denmark
course we started with that regime in 1958 with the 1958 argued that the binding principle for Germany is equidistance
convention on continental shelf. because it is in the 1958 continental shelf regime and it says
it is equidistance principle. Germany said that it has not yet
We have this question on delimitation on continental shelf entered into force, in so far as Germany is concerned, we
occurs where two states are opposing each other with both have not yet ratified it at our domestic level, so we cannot be
continental shelf. (illustration) What if the two states have bound by it. Denmark and Netherland countered that even if
overlapping continental shelf? It can go as far as 350 nautical Germany has not yet ratified it is a CIL. D ba regardless if
miles, but if its 200 nautical miles ended its slope it is up to whether you are a party to the convention if the rule found in
200 nautical miles. Problem is that if the distance between the convention is just a reflection of CIL, then you will still be
state A and state B is less than 400 nautical miles, lets say bound. Germanys counter-argument, is that how can it be a
300 nautical miles, so nag overlap sila. Of course state A and CIL when it was only in 1958, and we are now arguing about
state B cannot insist on the 200 nautical miles. So how do it and it has been 3 , 4 or 5 years. It is impossible for
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equidistance principle to have ripened into CIL for that short Lets talk about the asylum case. Whats the
period of time. relevance of this case?
For the CIL to apply it must be in accordance with the
So what did the ICJ say? concept and uniform usage practice by the state in question
On that point, we say that the short passage of time is not such as the Colombia and Peru in this case. In this case Dela
necessarily a bar to the formation of CIL. It is a different torre revolted against his government and was granted
perspective in saying that period is not relevant or long asylum in the embassy in Lima. Peru refused to give safe
duration of time is not relevant. It is still relevant but of passage to dela torre to go out of the country. Thats why
course not conclusive. That is not the only test. Precisely the Colombia brought this matter to the ICJ because Colombia
best approach is that duration of time is not conclusive and it contended that it was qualified or competent to grant
is not required, but it has significance, because in a way it political asylum to Delatorre.
can prove the fact that the practice has been repeated over
time and because it has been repeated over a long period of So what was the IL in this case? You know what
time its a good indication also of opinion juris. We are not asylum is?
saying it is already evidence of opinion juris but it can help. In fact it is CIL that state should respect the grant of asylum
On the other hand, short passage of time will not necessarily but Peru questioned the grant of asylum by Colombia. Dela
bar the formation of CIL. Although eventually of course the torre was a rebel in Peru, he revolted against Peru. Peru also
ICJ did not say that it should be equidistance principle, it argued that he committed crimes not related to rebellion, so
should still be equitable, but on that point there is already a what Dela torre did was that he sought asylum in the
pronouncement from the ICJ. embassy of Colombia stationed in Peru. Of course it granted
the asylum.
Is long period of time relevant and important in
determining formation of CIL? If asylum had been granted, it is CIL that all states must
Well it is relevant but not that important although we can say respect because it is part of CIL. As a matter of course the
that it is not that indispensable but definitely a short period person granted asylum would have also be granted the safe
of time will not necessarily bar the formation of CIL. It is the passage. Meaning he should be allowed to leave the territory
meaning of instant CIL. of that state not being subjected to prosecution, arrest, and
detention. It was disagreed on the basis that its not for
In Libya v Malta. There was also a discussion on the nature of Colombia to characterize or to qualify the offense as political.
the 1982 convention on the law of the sea. All you need to Because the only way you can ask for asylum is to say that
understand is that the UNCLOS - united nations convention you have been the subject of political persecution. But if you
on the law of the sea is also a codification of already existing are an ordinary criminal and has committed common crimes,
CIL. There are principles that had been carried over, practice such as murder, robbery, of course asylum is not available.
before and now found their way in the provisions of the But if you claim that you have been persecuted politically, so
UNCLOS. you have committed for example an offense in violation of
your own, like rebellion, or any other political crimes, then
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you may seek for asylum. Its not the issue that Peru refused
to respect the grant for asylum. The issue is that its not for And then didnt ICJ also notice of the general
Colombia alone to characterize the offense as political statements in the Montevideo Convention, it was not
because Peru said that it was not a political crime. specific as invoke by Colombia?
Yes sir.
What was the argument of Colombia?
Colombia argued that it is the CIL of Latin American What other conventions where mentioned other than
countries. There is a prevailing CIL in the Latin American the Montevideo Convention?
countries where it is said that the state granting asylum has It also made mention of the Havana Convention.
a competence to determine or qualify the offense as political
or not. How was it discussed in the ICJ whether or not it
What is the evidence presented by Colombia?Didnt offered proof of that CIL?
Colombia and Peru peruse a certain conventions in Basing on the ruling of ICJ it was not proven that the
Latin America? What conventions became relevant in Colombia government has this state practice when it comes
determining there exists such CIL in Latin America to having this unilateral qualification of allowing those
that the state granting the asylum has the political refuges.
competence to qualify the offense as political?
It was the Montevideo Convention on the rights and duties of Other than the Havana convention what else? We have the
states. ICJ needs to analyze the claim of CIL insisted by Montevideo Convention, we have the Habana Convention,
Colombia. It is the CIL among Latin American Countries. what is the other one? What about certain extradition
treaties, (not sure sa words) did it mention about it?
What does it tell you by the way when you said CIL So all these conventions did not categorically establish what
among Latin American Countries? was claimed as CIL by Colombia. And so according to the ICJ,
It is a different kind of CIL. the burden of proof lies with the party alleging the existence
of the custom. It must demonstrate that the custom relied
What do you call it? upon was established in the manner as to become binding on
It is a regional CIL, so there is such a thing as CIL and the other party. And this is the most important principle, an
well see the importance of knowing whether the CIL involve alleged regional custom demands a greater uniformity
is regional or universal. in practice than a general custom.
What about the Montevideo Convention? Because the What this case therefore tells us is that you need to first take
ICJ said that it is not an evidence of this CIL invoked note of the fact that if you are dealing with regional CIL it
by Colombia. Why? requires higher threshold. But there is no specific threshold in
Because it actually accepts the right of unilateral International Law but the fact remains that greater uniformity
qualification on which Colombia rely and which was not is required when it comes to regional CIL.
ratified by Peru.
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|Selfless Notes|
It can be explained based on the fact that when it is regional the form of legislation, in the form of official pronouncements
CIL then there are only few states and most of these states by the president and other officials, and these of course are
share more or less the same culture, practices, and beliefs so the pronouncement we can see in papers and official records,
it should be more or less uniform. Whereas if it is universal administrative issuances, decisions in courts. And when the
CIL, there are so many states involve, its not also sensible to state concerned ratifies or enters into a treaty or convention
require a very high standard on uniformity because states do so thats the way to tell or determine whether a particular
not share the same history, practices, culture, and beliefs. state has practice a particular norm.
You dont require a higher threshold of uniformity when it
comes to universal that is why I said earlier unanimity in the The problem is with the subjective or psychological
practice is not required, what is required only is extensive element because we need to look into the mental element
and uniform practice, and not just practice of all states but of of the states. And since the state does not have a mind, we
only that of the relevant state practice. have to look into a lot of things taken together thats the only
way we can say that there is such observance of the norm
Is it possible for a state to be exempt from the with the believe that the norm is a legally binding norm.
application of CIL? It means that covered sya
supposedly but d lang cya mo observe, is that Ways on proving subjective element of opinion juris
possible? Tell us something about the Anglo
Norwegian Case ( UK v. Norway). What was the issue 1. General Assembly resolutions
all about?.
In Nicaragua vs US weve learned that we can see this
VI usually and common example would be when states affirmed
or agree on some united nations general assembly
Weve learned that accepting CIL by a court confronted with resolutions. Weve learned that while general assembly
a question whether there is a law applicable to a particular resolutions are not binding because they are just expressions
controversy would require that CIL should be establish. The of what the member nations of united nations would happen
court cannot just accept CIL without proving that the in a particular case but its a manifestation, its an evidence
elements are complied with.
of the belief of this state that this norm embodied in a
general assembly resolution is a legally binding norm. And so
Elements are:
while general assembly resolutions are not binding in
objective or material element of state practice
themselves they however have normative value.
subjective or psychological element of opinio
juris. 2. General Practice
And weve learned that there are ways on how to prove these Another way of looking at whether the practice norm is
two elements and by the objective or material element of done with the belief that is it a legally binding norm is when
CIL can be deemed from the official acts of the state, in there is usually a general practice of that, so meaning
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|Selfless Notes|
while it proves an objective element it can also establish looking at the state practice of the relevant states. That is
subjective element if it had not been generally practiced. You why you say its a relevant state practice.
can probably say that what good reason why many states
North Sea Continental Shelf Cases.
observe the norm is because probably this is a binding norm
otherwise it would have not been generally or uniformly Germany in the middle and Netherlands in the other is
practice by the states. Denmark, so opposing states. It may happen that some
maritime regimes will actually be overlapping with one
3. Practice for a long period of time
another.
Another way of proving that indeed the practice is one What is a Continental Shelf? Because this case involves
with the belief that it is binding norm is when it had been Continental Shelf. Try to imagine our Exclusive Economic
practice for a long period of time. Although length is not Zone (EEZ). Our EEZ is 200 nautical miles from the baseline
conclusive as you may have encountered in your reading, it of the coastal states. The regime on EEZ refers to a natural
may help in establishing the value of that particular norm. resources, living or non living natural resources found in the
However, that is not to say that a CIL cannot be established superjacent water. Although when we speak of EEZ, it
or cannot be form for a short period of time. practically refers to the superjacent water. Although when we
That is why in this question, is it possible that a study the law on the sea later on, you will notice that in the
norm not practiced for a long period of time can result way the UNCLOS is, has been written it started with the
in the formation of the CIL? So we have the cases of the discussion of EEZ in the more general term. It also includes
North Sea Continental Shelf cases. This is the pronouncement not just water and also the sea bed and the subsoil, but since
of the ICJ in the said case It does not say that yes CIL can after the discussion of the EEZ, there is another regime
be established even for a brief period of time. What it says adopted in the UNCLOS which is the Continental Shelf
is that short period of time will not necessarily bar the Regime (CSR).
formation of CIL. So what Im trying to say is on the time of This CSR means that you have EEZ in general and you also
whether short period of time can bar the have the CSR in particular. In effect if you talk about EEZ,
establishment of CIL?The answer is it cannot bar. But will youre talking about the rights of a coastal state over the
it be able to establish?The short period of time alone will sources in the superjacent water. Meaning, excluding a
not. So you cannot say that the short period of time can seabed or subsoil already found in a continental shelf. You
establish, that alone will not because there are other factors already know what Continental Shelf is, of course beneath
to be considered. In this pronouncement of the ICJ the __to the water of the ground of the earth and the territory of
consider is not so much of the time but how they conceived course, if you think of that point where the water meets the
the practice is and how uniform the practice states who are dry land, beneath that of course slopes down slowly and
affected by the norm. When you speak of state practice, we thats the continental shelf until it reaches a portion where it
are not looking at the state practice of all states, we are
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|Selfless Notes|
is no longer sloping, thats the seabed already. So that just less than 5 years that we talk about equidistance
sloping, natural colongation of the earth under the water is principle.
your continental shelf.
ICJ said that its a wrong argument to say that brief period of
Under the law, two states opposing each other, each is
time will bar the formation of CIL. In fact what is important is
entitled to at least generally to 200 nautical miles also of the
the practice whether it is extensive or virtually uniform
continental shelf, the problem there is, what if the two
practice by the relevant states. But ICJ did not say that it
opposing states have a distance of less than 400 nautical
should be the equidistance principle that should be applied
miles. Okay lang if 400 exactly coz you will have 200 on one
but only on the issue on whether its correct to argue that
end and 200 on the other, there is no overlapping over one
short period of time will bar the formation of a CIL. Is there
another. In this case, its leass than 400. So the problem now
such a thing as instant CIL?(pwede bar question)
here is on how to delimit or delineate the continental shelf.
Another term for that is accelerated CIL . Take note of that at
Should it be applying the equidistance/equidistant
least you can talk about the North Sea Continental Shelf
principle which means simple mathematical calculation.
Cases.
Whats the middle between the point of state a and the other
point of state b. Another example of a recognized CIL would be certain
provisions, rules found in the UNCLOS. Libya v. Malta,
Another principle is equitable delimitation, not based on
letstalk about this when we reach law of the sea. What is
distance but base on equity. Meaning if we divide it, lets say
important here for now is that there are rules in the UNCLOS
60-40 in such a way that the sharing exploitation of the
that are reflection of CIL.
resources in the continental shelf would be more or less
equitable, instead of 50-50. The Federal Republic of Germany Columbia vs. Peru Is an important case to read because
disputed the application of the equidistance principle, while based on the readings on the first few part of the book of
Netherland said that Germany is bound to the principle. And either Akehursts or Shaw, both authors mentioned of
then Germany said: how can we be bound by the regional CIL and universal CIL.
equidistance principle, what is the basis of equidistance
Why is that important?
principle?
Its not just for academic purpose that you know that CIL can
Norway: Its in the 1958 Geneva Convention on Continental only be regional or universal. Theres a legal significance to
Shelf. Germany: It has not yet entered into force, so we that.
are not bound by that convention.
Norway: Even if it is just a convention it is a CIL, the In this case, the asylum case you have a rebellion leader
equidistance principle is a CIL. Dela Torre sought asylum from an embassy of Colombia of
Germany: How can it be CIL when it is just exist for a very course stationed in Peru. Colombia granted the asylum. You
short period of time? It was established in 1958 and it was know what asylum is right? If you are a victim of political
27
|Selfless Notes|
persecution for example, you can seek asylum and the right to identify the Custom whether it is regional or universal.
to asylum is recognized as part of CIL. Because when you are Because the case here allegedly dealt with a regional custom
a political opposition for example you are simply exercising a among Latin American States. And according to that regional
facet of the freedom of expression. So its wrong for a custom, the one granting the asylum should have the
government to persecute one who has simply expressed his competence to characterize the offense. ICJ observed that
political belief, and under the ICCPR that should not be a the proof given to establish that, was not sufficient and the
subject of persecution if you are simply exercising a political ICJ wanted a greater uniformity than general and bare
right. And so it is recognize that individual should not be averments of some conventions.
subjected to political harassment and so asylum is a
Persistent Objector Doctrine
recognized right under the International Law. So Dela Torre
sought asylum, Peru however, questioned the grant of The other important term to consider here is this, may a
asylum, because it said that the crime committed by Dela state validly exempt itself from the application of CIL?
Torre cannot be characterized as a political offense. But Are all states bound by CIL so that if one state objects for
Colombia characterized the offense as political thats why it example a CIL, then that state however, it should set aside
granted asylum. When Dela Torre wanted to leave Peru and its interest and then yield to the rule of the majority? Is
wanted to exercise his right to asylum and therefore, ask for there such a thing?Is it possible? Because all along we
a safe passage or safe conduct. Peru refused. So the Issue thought that CIL is applicable to all, no exception. But is it
there was which state should have the competence to possible for one not to be governed or is bound by CIL?
characterize the offense as political or not for
purposes of asylum. The State granting asylum or the sate Yes. So whats the threshold here? Is not practicing the only
refusing to recognize the grant of asylum. ICJ did not make a requirement? Is non practice enough? It must also be shown
ruling on which state should have the competence to that that particular state has been contradicting that
characterized the offense but it did say that the claim of particular law.
Columbia, because Colombia invoked Certain Conventions What is Persistent Objector Doctrine (bar exam
(Havana Conventions, Montevideo Conventions) the question)other term is the Persistent Dissenter
provisions in this conventions were not categorical as to Doctrine. Its not just about not practicing, its not correct to
whether its the state granting asylum which has been say that if you have refused to practice the norm, and where
granted the competence to characterized the offense. that norm already emerge as CIL that you can already be
According to the ICJ, especially that we are dealing here with exempt from complying with the already emerging CIL. In
regional CIL, it is important for us to note that there is a that situation you can simply be considered as a violator of
higher threshold in establishing a regional CIL.And the CIL.
because there is a higher threshold, the demand for
uniformity must be greater compared to a general What is required in the so called persistent objector/dissector
Custom. Thats a legal significance therefore, why we need doctrine is more than non-practicing the norm. Precisely it
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|Selfless Notes|
says dissector or objector. It should be that (1stelement) at UNCLOS 2 of 1950 or 1960s followed by the UNCLOS 3 in
the inception of CIL meaning at a time that, that CIL 1982.
started to develop or emerge as a CIL the objector must have
already objected express its dissent to practice the norm. At So note that the case was decided not yet under the UNCLOS
the inception meaning from the beginning, at the time it 3. There is now a rule on how to compute all maritime,
started to develop, not when it has already emerged as CIL. territorial sea, EEZ, high seas, continental shelf. The issue is
this, for Norway, so when they computed and delimited, most
Second, (2nd Element) such objection must be
of the maritime zones were unilateral delimitation because
consistent all through out the years it had develop
there was no convention. Sya ang mag decide where ang iya
into CIL. So a singular pronouncement that it does not
extent sa iya maritime zone.
conform to a particular emerging norm which will later on
become a CIL is not sufficient. So objection must be from the
Norway, when it delimited its baseline, ang bay instead of
start, or from the very beginning, and must be consistent all
following the natural configuration of a bay (letter c), ang
though out in the evolution of its norm. Third, (3rd element)
iyang imaginary line, gistraight niya, connecting the two
the objection must be categorical. The threshold indeed
points of the bay, therefore extending further and iyang
is very high, because we are dealing here with an exception
maritime zone. It would have been shorter if iyang gifollow
to the rule. The rule is CIL binds all states whether the state
ang natural configuration of the bay. And according to UK:
dislikes the norm or not that state is really bound by that CIL.
what youre doing is a violation of CIL.
That is the principle applied in Anglo Norwegian Fisheries
Case. A state that from the outset consistently objects
The British argued that under CIL if the two points of the
(element of consistency) a particular practice is not bound by
bay have a distance of more than 10 nautical miles,
any rule of alleged CIL which may arise from the practice.
you dont draw a straight line but you have to follow
Anglo Norwegian Fisheries Case the natural configuration of the bay. It is only when
the distance between the 2 points of the mouth of the
A bay is a natural indention of a landmass (think of bay would be less than 10 nautical miles that you
letter C). Why was this controversial in UK vs. would be allowed to draw a straight line. That was then
Norway? called the 10 nautical mile rule (we dont have 10 now, we
Norway is located in the northern part of England, it is known follow 12). UK argued that its a CIL. ICJ said that first, it was
for fishing. Fishing had been the main industry of Norway. not convinced that there was such CIL observing the 10
The problem is the extent of the fishing area of Norway. At nautical mile rule. ICJ noticed that of states affected by the
this time there was no UNCLOS, there were preliminary talks norm, relevant practice is another word. Meaning all states
in 1940s of the UNCLOS 1 but the provisions were not that have delineated their maritime zones, and states that
comprehensive enough to cover all issues. There was have bays kato ran na practice ang mo matter. According to
the ICJ the practice however in this regard has never been
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|Selfless Notes|
uniform. Some states observe 10 nautical mile rule some perform a particular act and therefore telling the state
states didnt observe the said rule. But even assuming that that such act is prohibited is when and in a way
the 10 nautical mile rule has ripen already into a CIL, the ICJ therefore limiting the exercise of sovereignty is when
observe that Norway had never practiced such norm from the there is only:
very beginning. And it had of course consistently objected to
the practice of the norm. And even assuming that it was a 1. Convention International Law that
CIL, still Norway cannot be bound by it because ICJ there is a law based on treaty or convention.
2. CIL - prohibiting the doing of a
considered Norway in this kind of specific rule on delimiting
particular act.
maritime or fishing zones involving bays, this rule has never
been practiced by Norway. And therefore in the absence of Conventional or
CIL sovereignty must not be restricted.
Fisheries Jurisdiction Case
What is important here is the pronouncement by the ICJ that Lotus Case
rebus sic stantibus is CIL. The outcome in this case is that
there was no valid invocation of rebus sic stantibus In this case, a collision took place in the high seas. When it
because it did not involve a fundamental change in the took place in the high seas no particular jurisdiction will
fishing technique. What was involved there was jurisdiction. apply. Because its a common area so no particular
jurisdiction prevails or local law becomes applicable in that
Principles involved. area. So that collision resulting to the death of Turkish sailor,
and the collision was between France and Turkish sailor. The
1. General Assembly Resolutions may show the captain and the officers on board, when they reached Turkey,
formation of opinio juris. Even if they are not they were prosecuted for the death of the Turkish Nationals.
legally binding, they have normative value. Turkey argued that it has jurisdiction because it treated the
Turkish ship as an extension of its territory and therefore the
2. Applying Lotus case - restrictions to states act committed or the offense committed by the French
sovereignty is not presumed. International Law officers therefore were actually committed in the territory
deals with sovereign states. If we speak of (Extraterritoriality speaking, in the territory of Turkey).
International Law regulating states, you are
necessarily talking about limiting the exercise of France argued that if there is collision in the high seas, it
sovereignty of the states, because you are to require should be governed by the flag state rule. Meaning, only the
states to perform a particular conduct or observe a flag state, where the vessel has been registered will have
particular behavior. And therefore, international law jurisdiction over the persons on board. And since they were
will have to limit the exercise of ones sovereignty. So to prosecute French nationals, they have to ask the place of
how will you deal with this? The threshold therefore is registration of the vessel. Since, it involved a French vessel
very high. The only way to compel the state not to registered in France so France should exercise jurisdiction
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|Selfless Notes|
over the offense. ICJ, however, observed that there was no The 3 voted to say that there is at the very least a CIL
CIL yet in regard to collision cases in the high seas. And since prohibiting the threat or use of nuclear weapon. But since,
there was no convention yet (unlike today that we have now it would depend on how it would be use, they said
the UNCLOS, we now have the rule on collision cases) and there is none.
there is no CIL prohibiting the exercise of jurisdiction for
crimes committed in the high seas, the ICJ cannot rule that They were also unanimous in saying that a threat or use of
Turkey is barred from exercising jurisdiction. force by means of nuclear weapons, that is contrary to
Art. II par 4 of the UN charter that fails to meet the
Legality of the threat or use of the nuclear weapons Case. requirements of ART 51 is unlawful. Art II par. 4 prohibits
the use of force against the independence or territorial
Thats important here because we want to know whether we integrity of another state. However that prohibition is subject
will bar a state from using nuclear weapon or an attempt to to an exception found in Art 51 that deals with individual or
use nuclear weapon. If it is an advisory opinion the court will collective self defense by states. Therefore you cannot read
divide the issues into several parts and in each issue they will art 2 par 4 separately from art 51. To say that use of force
take a vote. They dissect the issue. This issue encompasses may be permitted is to say that it is covered by the exception
several areas in international law. Such as the under art 51. Thats is why it says that a threat or use of
force by means of nuclear weapons contrary to art 2 par 4
Unanimous Decisions but does not fall under art 51 is unlawful.
On the principles that there is neither customary or They are also unanimous that the threat or use of nuclear
conventional international law, any specific weapon should be compatible with international
authorization of the use or threat of nuclear weapons, humanitarian law and international criminal law,
unanimous ang ICJ. It means there is no convention or under specific treaties dealing with nuclear weapons.
CIL authorizing the threat or use of nuclear weapons. That the use of nuclear weapons should be in accordance
There is no law authorizing. with international humanitarian law is settled. But the
threshold as to when it may be permitted and allowed and
On the other hand, is there a law prohibiting the use or when we can say that it is in accordance with humanitarian
threat of nuclear weapon? It does not mean that there is law they did not vote as to the threshold required because
no law authorizing it, conversely it is a prohibited act. You they want to contextualize also the use, they cannot come up
have to settle authorization on one hand and permission and with a rule without looking at the exact situation.
prohibition on the other hand. Its was 11-3. There were 3
justices who believe otherwise on the principle that there is Divided Decision
neither convention or CIL, any comprehensive and universal Since this is just an advisory opinion it is not to dispose an
prohibitions of the threat or use of nuclear weapons as such. actual case, the president of the ICJ did not vote first because
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|Selfless Notes|
they were not to decide they were to make an opinion. It was nuclear weapon. Not just the immediate result of human
enough for ICJ to be divided this way, equally 7-7. This was beings that the ICJ considers. They were also concerned
therefore, the aspect of the use of nuclear weapon where the about the long term effects of nuclear weapons to our
ICJ was divided equally. While the threat or use of nuclear environment. So the ICJ was undecided also, should the
weapons would generally be contrary to the rules of right to self defense be limited because of some
humanitarian law, the court cannot conclude definitively, environmental norm? To allow continuity of our human
whether it would be lawful or unlawful in an extreme race, if it is the survival of the state that is already at stake,
circumstance of self defense in which the very isnt it also being serve by the use of nuclear weapon itself?
survival of the state is at stake. We cannot make a rule
or pronouncement that it is prohibited or that it is allowed in (could be bar questions) What is the status of the use
case of a state exercising the right of self defense in an nuclear weapon in international law?What is an
extreme situation where the very survival of the state is at accelerated CIL? Contextualize your answer. If we are to
stake. So until now, the International Community cannot yet talk about the humanitarian law this is the answer, if you talk
resolve as to whether to prohibit the use of nuclear weapon about self defense this is another rule, if you talk about the
in such extreme cases. The UN has called upon the states to environment (the ICJ also noted the long term effect of the
disarm themselves of nuclear weapons but thats a different use of Nuclear weapons,) and if you talk about the use of
story. There is a call for disarmament of nuclear weapons, but force another answer.
in situation where there is the use of nuclear weapon in order
to defend the state or its territorial integrity, in a situation In the case of France vs. Turkey ( previous case Lotus case).
where it is used, ICJ has not come up with a definitive ruling Principles enunciatedby PCIJ
whether the state will be held responsible for using nuclear 1. Restriction upon the independence of sovereignty
weapons. There are so many things to consider. 1. You cannot of states cannot be presumed.
just say that mere use is to be prohibited because it is
possible that the use of nuclear weapon may still be in 2. Jurisdiction is territorial but international law does
accordance with international humanitarian law. You cannot not prohibit the state in exercising its jurisdiction in
underestimate technology at its present. Do not ever think its own territory over a case related to acts which
that science cannot tame nuclear weapon, theres still have taken place abroad or in the high seas. At the
possibility. So international law cannot come up with a rule relevant time there was no definitive rule yet on CIL
solely on the basis of what happened in Hiroshima and regarding collision in the high seas but in the
Nagasaki. You cannot come up with a rule on the basis of the UNCLOS 3 Art 97 there is now a rule on collision
results of that bombing by the US of Japan. cases in the high seas. Rule: 1. Flag state rule. 2.
Nationality of the offender.
The ICJ was also concerned about the environment
because of the adverse consequences of the use of
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|Selfless Notes|
3. Abstention by some states to exercise its criminal claim that that is in fact the norm as oppose to our flag state
jurisdiction for crimes committed abroad. Does it rule. You cannot say that that is really the norm. Why?
offer evidence of such practice of abstention Because a lot of states had actually abstain from practicing
obligatory? Counter diay sa France because turkey that. What is its normative value of states abstention
said that there is no CIL prohibiting the exercise of to a particular norm in the development of CIL?
territorial jurisdiction over offenses committed (Another can be a bar question)The point is that France
said that Turkey, you cannot say that, that is really the
abroad.
By the way when we study jurisdiction norm, that state can exercise territorial jurisdiction on the
basis of the Effects Doctrine ( in the past it can also be
later on we will learn that territorial jurisdiction may
be (kinds of territorial jurisdiction) subjective called Objective Criminal Jurisdiction) because it has never
been practiced by many states. The next question of PCIJ was
territorial jurisdiction or objective territorial
jurisdiction. Subjective territorial jurisdiction it ang ila bang pag abstain, ang wa nila pag practice) was
because of the belief that it was obligatory on their part to
means that when an offense has been committed in
one state, it had been commenced in State A for refrain from practicing the norm? It was not establish. This is
negative CIL in other words. If gina abstain sya pag practice
example and consummated in another state, State
B, either state A or state B can actually exercise kinahanglan ang pag abstain sad (as oppose to practicing it)
the abstention must be on the belief that abstaining on that
territorial jurisdiction depending on which state are
we talking about. In the case of State A where the norm was also obligatory.
offense had commenced, then it can exercise
Clarifications:
territorial jurisdiction under subjective territorial
jurisdiction. State B also can exercise jurisdiction French rule and English rule in the PHILIPPINES will not apply
under the objective territorial jurisdiction to crimes committed in the high seas.
because it was consummated in State B. Turkeys argument was that this is really practice by CIL so
France is bound to respect the norm.
So it can happen therefore, that the state can exercise France: I dont think thats really the norm because a lot of
jurisdiction even if the act was committed somewhere else states abstain from practicing that. So it means that its not
(abroad) but its effects are felt in that territory of the state, CIL because there were a lot of abstentions.
then that State can exercise its jurisdiction, we call this in the Follow up discussion is that lets take a look at whether this
international law the Effects Doctrine. Acts committed abstention occurs because of the belief that it was obligatory
abroad or anywhere else even if committed in Mars if the not to practice the norm. It was established that they abstain
effects of the criminal acts are felt in a particular state that because it was obligatory for them to abstain, then such
state can exercise territorial jurisdiction. Precisely that was abstention adds to the proposition that states should not
the argument of Turkey, France counter argued, you cannot practice criminal jurisdiction for collision cases happening
33
|Selfless Notes|
abroad. But since it was not establish that the abstention was then it can resort to some general principles of law. And this
based on the belief that it was obligatory not to practice general principle of law can be located in the jurisdiction of
criminal jurisdiction. domestic courts and legal systems.
Third source of International Law General Principles For example, Barcelona Traction Case - ICJ said that in
of LAw the absence of applicable International law cognizance must
be given to the relevant institution of domestic law otherwise
How do you distinguished general principles of law from CIL? the ICJ would lose touch of reality particularly as there are no
If you talk about CIL, then you are referring to norms develop corresponding institutions on international law to which the
through state practice but general principles of law are court could make reference. There is no stare decisis when
norms that had been practiced at the domestic level and not it come to ICJ decisions. Its never safe for ICJ to always refer
applicable to states but had been applied to disputes at the to its previous decisions. There is also no also formal
domestic level between litigants, between parties at the relationship between the ICJ and other tribunals (Hague
domestic level but they had been applied by the ICJ in Permanent Court of Arbitration, or the ICC, WTO). ICJ cannot
various cases and other tribunals and in the process where right away rely on the decisions of other courts.
international tribunals had applied certain principles of law
originating from domestic jurisdiction, that they had Barcelona Traction Company was registered in Canada,
transposed a domestic principle to international law (the nationality of the company si determined by the place of
principles. Examples : estoppel had been applied by registration). The nationality of this company is a Canadian
domestic courts in local cases involving individuals for firm. It had a branch in Spain and it issued some bonds which
examples, not involving states, yet for some good reasons matured eventually. The company suffered some financial
international tribunals applied. reverses and did not want to pay all the bonds it had issued
when they become mature and payable, but Spain forced
Principles of good faith, principles of prescription, them to pay, which resulted to the bankruptcy of the
Akehursts explained that the preparatory works of the company. The company alleged that it was wrongful on the
international law commission in the drafting of the statute of part of Spain to force them to pay the bonds, it alleged Spain
the ICJ particularly art 38, they did not of course intent that of having committed an internationally wrongful act and
these 3 should be observed or treated in a hierarchical form, therefore it should be held responsible. When Barcelona
only the primary and secondary. But the intention really was traction went to Canada (you know the idea of spousal of
to find a solution were there may be a gap in the law when claim? Or diplomatic protection- if you go to the ICJ you need
there is for example neither conventional nor customary your state to do it for you because you dont have the
international law applicable to the case. If an international personality, so you need diplomatic protection) Canada did
tribunal confronted with a problem when there is no treaty or not exercise diplomatic protection, so way choice ang
convention applicable or when there is no CIL applicable, Barcelona Traction. The stockholders are Belgian nationals,
34
|Selfless Notes|
majority of the stockholders, so the stockholders ask Belgium Student: Because these principles that are usually found in
to exercise diplomatic protection for and in their behalf. So the municipal level are those common in the legal system in
the issue was whether Belgium had the personality to the world.
sue Spain on the basis of the nationality of the
Sir: Yeah, but that does not answer the question why the ILC
stockholders? The ICJ ruled that similar to domestic
decided that it is a source of PIL in the form of General
corporations in our domestic jurisdiction, the corporation has
Principles of Law. We already have conventional law, the 1 st
its own personality separate from the stockholders, so it was
primary source and then, we also have customary
therefore, incumbent upon Canada to exercise diplomatic
international law, what is the travaux preparatoires there?
protection because the damage was to the company, to the
corporation and not to the stockholders. That principle is Sir: The international law commission found it necessary to
domestic principle but applied by the ICJ at international put a third source of public international law because they
level. That is an example of domestic law being transposed conceded, I mean the members, a special [] to
to international law as part of the general principles of law. international law commission, conceded that there are
controversies or there may be controversies where no
VII
conventional or customary international law may be applied
Sir: When we are talking about the 3 rd primary source of squarely or categorically to a particular issue. Correct?
Public International Law, recall the General Principles of Law And so, as matter of practice by International tribunals, some
What again is your understanding General Principles principle of law, that had their origin at the domestic level,
of Law as a source of PIL? had actually been transposed into source of international law
where they have been applied in certain cases. Especially
Student: The General Principles of Law are those principles when there is no conventional or customary international
that under the domestic law are those that the judges use in applicable to the case. Yes?
order to justify their decisions.
So, I think we mentioned about the Barcelona Traction Case,
Sir: How come it becomes a source of PIL if these are the issue was whether Belgium could properly exercise
principles use by judges under domestic level? What is diplomatic protection for and in behalf of the Belgian stock
the travaux preparatoires of General Principles of holders of Barcelona Traction. You remember the ruling of
Law? Why the International Law? Why did the the court?
International Law Commission decide on having a
general principles of law as source of international Student: Yes sir. The Court said that it ..
law? Sir: The Court said, since the cause of action was really a
cause of action that pertains to the company or corporation.
It should be the nationality of the corporation itself that
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|Selfless Notes|
should be controlling. And since Barcelona Traction was Sir: No, because what principle of law was applied that allow
registered in Canada, it should have been Canada which ICJ to dispose the case without resolving the merits?
would espouse the claim or exercise diplomatic protection.
Student: Estoppel?
Because while the stock holders were injured by the act of
Sir: Yes, estoppel. But in what particular? That one that goes
Spain, the injury was only indirect, and the injury that was
to court he must come to court with clean hands. We call that
direct pertain actually to the corporation. So, Belgium
the CLEAN HANDS DOCTRINE.
improperly exercise diplomatic protection.
A general principle of law also applicable at the domestic
What about in the case of River Meuse Case?
level. The clean hands doctrine was applied. More often than
What general principle of law was applied? not, just to find a way not to resolve the case, this can be
applied.
Sir: Netherlands and Belgium agreed on how to manage/
administer the River Meuse that of course pass through Now, you have encountered in your readings the concept of
Netherland and Belgium, what happened there? soft law, right?
Student: Netherlands here entered into an agreement with What is your understanding of this soft law? How is it
Belgium in order to delimit themselves from making another distinguish from hard law?
construction that would divert the flow of the water.
Student: Soft law are those things that generally are not
Sir: It was a reciprocal treaty, correct? binding because it does not have in itself the consent of the
states.
Student: Yes, that neither of the party should do something
to violate the treaty. Subsequently, Netherlands, constructed Sir: The lack of consent that makes a soft law distinguishable
a canal, (Juliana canal). Since Netherland on that matter from hard law?
violate the treaty, so despite of the protest of Belgium,
The Universal Declaration of Human Rights, is it soft law or
Netherland continue constructing. Belgium now also
hard law?
constructed a canal of their own because the result of the
construction of Netherlands somewhat obstruct the water or Student: Soft Law
more water coming out.
Sir: You can categorize it as soft law, but Im sure it had been
The Netherlands complain. ratified by almost all members of the United Nations. Whats
the relevance of consent? Still soft law but ratified.
Sir:Did the ICJ rule on the merit of the complain?
Soft law are indeed principles of law that are not meant to be
Student: No sir.
legally binding in the sense that invoking it would
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|Selfless Notes|
automatically render or rather would charge another state Bar Exam Question: What are soft laws and hard laws?
responsible. However, not also totally irrelevant, because How do you distinguish?
there is a normative value of a soft law.
Of course hard laws are readily enforceable principles of
Most soft laws are meant to be mere declarations of international law.
principles but become hard laws when they are applied
Soft laws are not readily enforceable, usually they are
domestically, enforced by the state domestically.
dependent upon the implementation, usually through
We have for example the Universal Declaration of Human legislation by the states themselves.
Rights, there is a list of human rights principle.
It doesnt mean soft laws are totally irrelevant. You remember
But until and unless, these human rights principles are your article 2 of 1987 Consti?
implemented at the domestic level, of course, through
You were ask these are not self-executing provisions? Yet we
relevant legislations, you cannot say that a particular
learned that while they are not self-executing provisions, they
individual has violated the UDHR, but instead you would say
serve important purposes.
because of the UDHR, this RA 12345 has been enacted,
when one violates this statute, then the violation would be What is the normative value of PIL? How do you response if
against the statute and not with the UDHR. asked in the BAR.
But of course, validity of statute would also be tested, on the It could be guidelines for our legislative assemblies as to the
basis of UDHR. But the problem however, is that being in a kind of laws that will be pass and that the law should be in
horizontal system, the most that human rights courts do will line with the mandate of these soft laws.
simply to declare that a legislation contravenes the mandate
of the UDHR. It is also useful for the Executive Department. When the
executive implements certain statute then it will be guided
But of course, the court cannot say, that it is an invalid law by principles also found in soft laws. It can be the executive
and therefore, one should be exempt from obeying. That is also mandate to observe our officials of existing soft laws or
also a problem in international law because even if conventions that are soft laws in character.
international human rights courts will declare that it is
against a soft law like UDHR, the only way that it can be It will also guide our supreme court, many times, the SC had
considered as null and void at the domestic level is for its applied provisions of the UDHR, ICCPR. That is also another
own court to declare that in indeed it is against the UDHR. utility of soft laws although they are really legally binding.
They will guide judicial reasoning. How the court reasons in a
Good if its own SC will agree with the international tribunal particular controversy.
that its own Congress violated the UDHR and it will nullify the
law. But what if it will not nullify the law?
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|Selfless Notes|
Now, lets talk about equity, it is a General Principle of Law,

so equity can be a source of international law as a general But the parties agreed NO, we feel because of some
principle of law. But there is also such thing as the Principle fundamental changes or important supervening events, that
of ex aequo et bono where equity is also applied. the application of customary international law or
conventional law, may not be actually fair to both parties.
So distinguish equity as a general principle of law and equity
as applied by the ICJ ex aequo et bono? So, they are willing to agree, ok we will just submit it to the
court, that equity will be applied in the decision, never mind
Student: Di ma klaro.. sorry applicable rules. THATS EX AEQUO ET BONO. Precisely the
Sir: Did you read Article 38 (2)of the ICJ Statute? requirement that parties must agree to that application of EX
AEQUO ET BONO.
2. This provision shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto. Now, you should be able to distinguish between Non liquet
and ex aequo et bono.
Sir: You know the English term of ex aequo et bono? It
means a decision in which equity overrides existing rules or Sir: Then there is also the importance to distinguish between
overrides all other rules. custom and comity or usage.
So, what does it suggests?
What distinguish from one with the other is the absence of
The principle of non liquet, implies equity is applied as a opinion juris sive necessitatis.
general principle of law in the absence of conventional or
customary international law. So, in CIL, the example here is state immunity from suit.
Comity, simply practice of states not because of the belief
So, that is the 3 rd primary source, that equity as a general that this practice is legally binding but on mostly for
principle of law is actually from this principle of non liquet. convenience. E.x. Alternat
But if you apply equity under the concept of ex aequo et In the signing of a treaty, we are operating under the
bono, it does not contemplate of a situation where that here principle of co-equality, it is also a question in the signing of
is neither customary international law nor conventional law treaties, which state should appear first in the list. Is it
applicable, precisely the requirement that the parties should alphabetical, or from developing to developed, v.v. etc
agree there to. This presupposes that actually there is
conventional or customary international law applicable. The ALTERNAT has been adopted in treaty signing. This
means that, for example, we are all the designated
You see if there are conventional or customary international representatives of our states, we are no to sign the treaty, in
law applicable, the court is mandated to apply the existing a conference, each one of us will go home with our own copy
conventional or customary international law. of the treaty because it will be ratified.
38
|Selfless Notes|
norm from which no derogation is permitted and which can

What will appear in your copy, is that your state appears first be modified only by a subsequent norm of general in
in your copy. In that sense we are equal, that is alternat. But ternational law having the same character.
of course that is just for convenience. It does not provide for
a specific rule of conduct actually. We can or cant follow it. What makes jus cogens non derogable?
Another important point we need to talk about, is Jus cogens can actually be changed, can be set aside but that
there a hierarchy in the sources of PIL? would require another norm of similar character, meaning it
should also be in that kind of norm, similar to a jus cogens
What it had been agreed upon is the primary sources and norm.
subsidiary sources.
Non derogable means, remember International law is divided
We have already learned the meaning of primary and into at least 3 regimes, laws of peace, war and neutrality.
secondary. But one thing is definite, this such norm that When a norm is applicable in either of these regimes,
stands out, which means it will prevail over all other sources, because the idea here is when you apply the law of peace
is JUS COGENS NORM. during peace time and then war breaks out, generally, a new
regime is applied to the conflict.
It can be viewed as, qualifying status of a particular norm or
you can mention of jus cogens norm as the norm that will So, not all, but most laws of peace cannot be applied during
invalidate the treaty provisions. times of war. But if the norm exist in both times then that is a
norm that is never derogable.
In fact under article 53 of the VCLT, that is where you will find
the jus cogens norm. It enumerated the grounds that will Example, GENOCIDE, prohibited during peace and war time.
invalidate a treaty. One of which is, the violation of In fact it is a war crime under the Rome Statute.
peremptory norm or non derogable norm. Other ex: torture
Article 53. TREATIES CONFLICTING WITH A PEREMPTORY While there is no clear pronouncement that there should be a
NORM hierarchy we should observe, jus cogens is definitely cannot
be least among all others.
OF GENERAL INTERNATIONAL LAW ("JUS COGENS")
But if you are to come up with an argument, whether you
A treaty is void if, at the time of its conclusion, it conflicts prefer conventional as more of a persuasive norm compared
with a peremptory norm of general international law. For the to customary international law. What argument can you
purposes of the present Convention, a peremptory norm of advance?
general international law is a norm accepted and recognized
by the international community of States as a whole as a
39
|Selfless Notes|
Or which do you think should prevail in case of conflict? Erga omnes inter partes norm, it is a more specific kind of
Conventional or customary? erga omnes because the exercise of the duty, is address
towards protecting, promoting a specific right of specific
Student: [Sorry not clear] states.
Sir: CIL even applies to non-observers unless they qualify as
persistent objectors. Even those who doesnt like CIL and do Example: one state has a need for environmental protection
not qualify as persistent objectors, they are also bound by CIL because of some endangered species in a particular state.
whereas a treaty is binding only between parties, this Then it may be a duty of all other state promote or conserve
presupposes also that a treaty does not partake a CIL purely the environment and therefore prohibit acts that will violate
conventional. the rights of the state.
Akehurst also, discussed about the applications of statutory So the performance of that duty is not a duty towards the
construction. entire international community but only to address a specific
right of one state.
Lex posterior derogat legi priori, a later law prevails over an
earlier law. Usually exercise between co-parties to a convention.
lex specialis derogate legi generali special prevails over VIII

general law.
Continuation on Sources of PIL
One final point, we have been talking about jus cogens, you
Philippine Practice
have encountered the principle of erga omnes norm.
Sec. 2, Art. II, 1987 Philippine Constitution
What is the relation of jus cogens and erga omnes norm?
Section 2. The Philippines renounces war as an instrument
Student: [di ma klaro sorry..]
of national policy, adopts the generally accepted principles of
Jus cogens- is the norm, international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation,
Erga omnes duty to promote or abide to that norm, not and amity with all nations.
only to prohibit but to actively prosecute
Sir: This has been known as the INCORPORATION CLAUSE.
Have you encountered erga omnes inter partes? How do you
distinguish it from general erga omnes? 2 methods of making PIL part of the law of the land:
Sir:Erga omnes norm becomes the duty towards the 1. By way of incorporation
international community in general with no specific state 2. By way of transformation
whose rights are to be promoted by the exercise of the duty.
In PH, how?
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|Selfless Notes|
Front Door through incorporation. practices on detention, arrest, investigation. If there

are certain practices about it.
We can also adopt a principle of international law that does
3. The Judiciary, only by a decision of our SC. Under civil
not partake of a nature generally accepted principle of
law, only SC decisions, become law of the land.
international law through treaties that is the back door in the
sense that even if it is not a generally accepted principle of If asked in the BAR exam, how may international law
international law and since the Philippines will become bound become part of the law of the land, you should mention
to that treaty or convention which involves a norm or rule both.
that is not General Accepted Principles of International Law
(GAPIL) still the Philippines is bound then you have an Kuroda v. Jalandoni
international law principle entering our legal system through
The government created a military commission to
the concurrence by the Senate of the ratification made by
prosecute certain officials, japanese military commanders
the President of that Treaty.
of war crimes, the ability of the state to prosecute
Remember your Ichong vs. Hernandez case, the treaties individuals for war crimes must have been because
when duly ratified by the President and concurred by the certain war crimes has been defiend by the Hague and
Senate they become part of our legal system similar to the Geneva Convention as punishable, the problem there was
statute we already have. the Philippines was not a signatory to the Hague
Convention at that time. SO, the creation of that military
Treaties therefore partake of the nature of a statue. commission was questioned. How can the Philippines
Almost all principles can become part of the law of the land. create a military commission, authorize that commission
GAPlL through incorporation, non- GAPIL through the to prosecute someone for war crimes and the basis or
treaties. source of that authority supposed to be the Hague
Convention and PH is not a party.
By transformation, it can be done many ways,
SC said, there is no need for the PH to be party to that
1. Congress will enact laws by simply copying a treaty or convention for purposes of prosecuting military officials of
a convention regardless of the nature of that principle war crimes because the provision of the Hague and
of international law, whether GAPIL or not, it does not Geneva Convention partakes or based on generally
matter since Congress anyway has transform the accepted principles of international law applying
principle of international law as part of the law of the incorporation clause they for part of the law the land.
land by legislation. That is the most common way. US vs Guinto, US vs Ruiz, state immunity from suit. The
2. The other is by executive action, president, for principle involve there is par in parem non habet
example it pertains to executive functions, like the
41
|Selfless Notes|
imperium states are co- equal and therefore no can Between jure imperii (governmental functions) and
exercise jurisdiction over the other. between jure gestionis (proprietary functions) Why is that
important?
Because if one exercises jurisdiction over the other, then
it diminishes the equality principle between and among It is important to know the function involve because in IL
states. the principle of state immunity from suit becomes
relevant only where the function involve is jure imperii,
Remember if we talk about state immunity from suit in
therefore when the function involve is jure gestionis then
international law, we are not dealing here with a situation
the principle of state immunity from suit will not come
where a case is filed in PH court against the Philippine
into play.
state.
Note in Consti 1, remember the principle when the state
State immunity are divided into 2 kinds, there are cases
enters into a contract it descended to the level of a
involve a suit against the Philippine state in PH courts we
private individual and cannot anymore therefore invoke
dont apply the principle par in parem non habet
the privilege of state immunity from suit.
imperium because no foreign state is involve.
Privilege of Royal Dishonesty
However if the state involves filing of a suit in PH court
against a foreign state that is where you apply the There is a need to clarify that because under our law we
principle of par in parem non habet imperium because have a commonwealth act amended by 2 more PDs
there is now the foreign element and therefore you are involving money claims arising out from contracts. Money
looking at a situation where PH court and therefore PH claims ex contractu, if you are the claimant you have
state will be asked to exercise power over that foreign money claims against the government, how do you claim?
state. The Philippines cannot do that w/o the consent of
Do you distinguish between contracts entered into
the other state.
in jure imperii and jure gestionis?
Why is that important?
No, our government, has already consented to be sued
You know state immunity from suit while it is a generally
when the money claim is based on contract. Where will
principle of international law, in fact customary
you go? To COA.
international law, another aspect of that discussion.
What do you expect from COA, it will decide to reject or
Another principle of CIL is the need to distinguish between accept your claim. COA is given 60 days. After the laps of
2 functions of a state in entering into contracts. 60 days and t he COA will reject. That is when you go to
the regular court.
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|Selfless Notes|
But if this involve a foreign state, X files a case for became parties there around 159. Allow foreign investors
damages, Phil Vet. Assoc. Case, state immunity from suit to directly initiate a suit for arbitration and conciliation
becomes relevant if it involves either, one, claim for involving disputes against states.
money like claim for damages and second, property of not
Instead of invoking state immunity from this situation, the
money.
consent is already given because of the ICSID framework.
Not all claims are within the purview of discussion No permanent court or tribunal. ICSID will facilitate the
paradigm on state immunity from suit, only those claims assignment to an accredited arbitral tribunal. Like
that will require the state to perform, that positive or Permanent Court of Tribunal.
affirmative act of releasing from the public treasury,
In the BAR, what is the importance of the ICSID framework
public funds or public property.
in the doctrine of state immunity from suit.
If that is the situation, you file a case against the PH
In Reyes v. Bagatsing, this case involves a conflict
government and its money claims arising from contracts,
between the suppose exercise of the freedom of
we have a law that allows the case to progress but it
expression by our own citizen and the duty of the
involves a foreign state, at 1st instance can already make
Philippine state of a diplomatic mission like US embassy.
a claim that when the function involves a governmental
function then it can properly invoke state immunity from The demonstrators rallied from Luneta towards the gate
suit. That is a well recognize principle of IL. or near the US embassy to conduct some protest, they
were barred from doing so because of the policy of
The principle that the state has descended to the level of
conducting beyond 500 meters. That policy was
an individual when it enters into a commercial contract.
questioned as violation of the freedom of expression.
However, because of the need for states to cooperate and
SC noted that on the contrary, it is an act complying of
in view of significant global interactions between states
the mandate of the Vienna Convention on Diplomatic
especially on the area of trade and commerce and
Relations which it reflects CIL. The duty to protect the
finance.
premises of diplomatic missions is part of CIL. Freedom of
States have entered into treaties where they have already expression here is simply regulated not suppress.
waived the right to invoke state immunity from suit in
LAW ON TREATIES
certain cases involving foreign investors.
First, we need to distinguish terms that have been used
So, the study of state immunity from suit, we have to
by some interchangeably but should actually be
study also along ICSID framework. There is this
distinguish.
International Center for Settlement of Investment Dispute.
So members of the World Bank and those signified The law of treaties must be distinguished from treaty law.
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|Selfless Notes|
Treaty Law, we are talking about the substantive content in a single instrument or in two or more related instruments
of a treaty in relation to a particular subject matter. Ex. and whatever its particular designation;and to be governed
What is the treaty law on genocide? We have a particular by the international law regardless of the name or phrase
treaty of Genocide. given.
The Law of Treaties, we are talking about that regime that What it means therefore is any treaty that is not entered into
governs formation of treaty, effectiveness of treaty, validity between states will have to be governed by another regime,
of treaties, withdrawal, suspension, termination and many there is a regime between treaties entered into between
other aspect of treaty-making and treaty-executing states and international organizations and between and
procedures. among international organizations.
What we will be studying is the larger regime on the law of A treaty for purposes of the application of the 1969 VCLT
treaties. means an international agreement concluded between
States in written form and governed by international law,
What is a treaty? whether embodied in a single instrument or in two or more
Art. 2, 1 (a) of VCLT: related instruments and whatever its particular designation;
1. For the purposes of the present Convention: There are treaties in generic term or international
(a) "Treaty" means an international agreement concluded agreements.
between States in written form and governed by
international law, whether embodied in a single instrument In the 1966 ILC commentaries, it was explained, the 1969
or in two or more related instruments and whatever its VCLT is a codification of CIL on treaties. It codifies CIL on
particular designation; treaties that had been practice by states before 1969. Like
pacta sunt servanda, rebus sic stantibus, they existed before
Indeed it is a misnomer, usually we are asked what is treaty the 1969 VCLT.
we looked for a definition in a convention.
Because of the peculiarities of IL, they decided to separate
The Vienna Convention on the law of treaties would give us a treaties entered into by states and non-state actors for
definition of a treaty but that definition under the ILC simplified rules and convenience. If you look at article 3 of
travauxpreparatoiressimply means it is a definition of that VCLT:
kind of treaty which will be governed by the VCLT.
Article 3. INTERNATIONAL AGREEMENTS NOT WITHIN
It is not a definition of what a treaty is but it simply means THE SCOPEOF THE PRESENT CONVENTION
that a treaty for purposes of the VCLT means that an
international agreement concluded between States in written The fact that the present Convention does not apply to
form and governed by international law, whether embodied international agreements concluded between States and
44
|Selfless Notes|
othersubjects of international lawor between such The only significance of the phrase concluded
othersubjects of international law, or to international between states in the definition of a treaty in the 1969
agreements not in written form, shall not affect: VCLT is only for the purpose of applying the provisions
of the VCLT.
(a) The legal force of such agreements;
(b) The application to them of any of the rules set forth in the So all other treaties that are not within the definition of
present Convention to which they would be subject under a treaty under VCLT will be governed by other regime
international law independently of the Convention; including customary international law on treaties and
(c) The application of the Convention to the relations of of course other regimes.
States as between themselves under international
agreements to which other subjects of international law are The present Convention applies to any treaty which is
also parties. the constituent instrument of an international
organization and to any treaty adopted within an
Calling it a treaty is one thing, calling it as binding is another. international organization without prejudice to any
Even if it is oral it might not be considered treaty for relevant rules of the organization. (Article 5,
purposes of the VCLT because in VCLT it requires in writing VCLT).
but it does not mean it is not binding. It is still binding
between the parties concerned. WTO, there are parties to the WTO if let say all SEA
members of the WTO will enter into a particular treaty
dealing with a product peculiar only to the South East
IX Asian Nation, unsa kaha na? banana [.] That
particular treaty may be governed by the relevant
May the rules found in the VCLT be applied in the ff:
provisions of the WTO itself. So you notice that there
1.)A dispute involving a treaty between State A and are voting requirements for example for the adoption
IMF World Bank (International Org.) of the treaty. That may be governed not by the VCLT
but by the relevant provisions of the organization. A
The term treaty can actually be used to any international treaty may be governed by another regime in other
agreement entered into by international persons or entities words. Not necessarily by the VCLT.
excluding of course individuals so international
organizations can be parties to a treaty The use of the term treaty therefore is proper in
this case even if it is entered into by State A and
"Treaty" means an international agreement concluded the IMF World Bank which is an intl org.
between States in written form and governed by
international law, whether embodied in a single Article 62 of the VCLT thats fundamental change of
instrument or in two or more related instruments and circumstance. You know that Rebus Sic Stantibus is the
whatever its particular designation (Article 2, VCLT). precursor to the fundamental change of the
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|Selfless Notes|
circumstance principle is a rule on the law treaties and Non-Retroactivity of the Present Convention.
a CIL. Without prejudice to the application of any rules set
forth in the present Convention to which treaties would
So may State A insist that the provisions of this
be subject under international law independently of
treaty between State A and IMF world bank will
the Convention, the Convention applies only to treaties
be suspended because of some fundamental
which are concluded by States after the entry into
changes in the circumstance?
force of the present Convention with regard to such
Well if the elements are present then that principle
States (Article 4, VCLT).
may be applied. So even if we are talking about an
international organization because we are not applying So if we apply for example, of course I am sure in any
the rule of the VCLT as a rule of VCLT but as a principle international agreement okay both states will have to
of law. be governed by the principle of pacta sunt servanda
noh that the treaty must be complied with in good
2.)A dispute involving 1960 Treaty between State A faith. A breach of a treaty will engage State
and State B Responsibility for which reason the breaching, not
bretch, State will have to be liable for some forms of
Way problema puro man ni states. Let us assume in
compensation or any other scope of responsibility
writing siya, let us assume further that both States
even if this was concluded before the VCLT. It is
intended the treaty to be governed by international
international law in general that is applied in this kind
law. The concern now is the date when this was
of treaty.
entered into by States A and B. It was entered into
before the effectivity or before the VCLT entered into 3.)A dispute involving a 1995 treaty between State A
force in 1980. Very simple question, sir if the rule that and State B which are not parties to the VCLT, so
were talking about partakes of the nature of CIL then this was concluded already at the time the VCLT
that rule will still be applied to that treaty even if there entered into force but of course they are not
is a principle on non-retroactivity on Article 4 of the parties to the VCLT.
VCLT. The VCLT shall be applied only to treaties that
Same answer if the rule that you are talking about is
have entered into force or rather that have been
CIL it is still applicable to the States even if they are
enacted upon the entry into force of the VCLT. Non
non parties to the VCLT.
retroactivity of the present convention without
prejudice to the application of any rules set forth in the 4.)Is an agreement which has the nature of a treaty
present convention to which treaties will be subject but is not reduced to writing a treaty? Is it binding
under international law independently of the to state parties to the agreement?
convention.
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|Selfless Notes|
If you look at Article 3, treaties that do not conform the VLCT will not affect the legal force of such
with the definition of a treaty under the VCLT may agreement.
however be binding.
In the Bahrain Qatar Case for example, it did not follow
The fact that the present Convention does not apply to the required form of a treaty because it was just
international agreements concluded between States actually Minutes of the Exchanges or the Discussion
and other subjects of international law or between between representatives of Bahrain and Qatar but
such other subjects of international law, or to which of course was signed by the representatives.
international agreements not in written form, shall not NOT treaty under the VCLT but considered binding.
affect:
5.)Australia entered into an agreement with the
(a) The legal force of such agreements; Philippines stipulating that Australia Naval Forces
will lease Phil. Government patrimonial property in
(b) The application to them of any of the rules
Subic for its Naval and Military Exercises in the
set forth in the present Convention to which
Phils. for 5 years in the amount of 10 million. Is this
they would be subject under international law
a treaty?
independently of the Convention;
I think the better questions is Is this a treaty under
(c) The application of the Convention to the
the VCLT? Lets say that this is in writing between
relations of States as between themselves under
states, it is an international agreement. Whats the
international agreements to which other
fourth element? To be governed by international law.
subjects of international law are also parties.
(Article 3, VCLT) So we ask the question, is this a kind of treaty that is
to be governed by international law or any other
The only conclusion here is that this kind of treaty
regime? Of course the other regime other than
because it is not in writing will not be governed by the
international law, that would be the domestic law.
VCLT. So if State parties or a state party to a treaty for
example would want to withdraw from the treaty it If you look at the nature of the agreement it seems like
cannot invoke the grounds provided for in the VCLT that this is more of a contract than a treaty. So this
because it cannot invoke the VCLT. Because the VCLT partakes of a nature of what international law calls
does not apply. Not unless the ground for withdrawal Contract Treaty in a way, why? What are the
partakes of the nature of CIL. characteristics of contract treaties as opposed to law
making treaties which can therefore be sources of
However, is it binding?
international law and contract treaty shouldnt be
Article 3 says the fact that the international agreement treated as generating a conduct that will form as basis
does not conform to the definition of a treaty under for CIL.
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|Selfless Notes|
Distinction between Contract Treaty and Law foreign territory not unless this involves
making Treaty environmental concerns. So more or less this is
to be governed by municipal law and then. It is
Most lawmaking treaties are more or less
not a treaty under the VCLT if you are going to
permanent in character whereas contract treaty
rephrase the question to is this a treaty under
on the other hand is more or less temporary.
the VCLT
A law making treaty binds or demands from a
6.)What is the difference between a signatory to a
party to a treaty the performance of an act or
party to a treaty?
conduct regardless of the performance of the a.) As to meaning
obligation of the other party. IOW, more or less it b.) As to obligation
is not operating under the principle of
reciprocity. If it is a law making treaty State A is What is the difference between a concluded
really bound to perform the obligations under treaty and a treaty that had entered into
the treaty regardless of WON the other party force?
performs its own. Otherwise if the performance
* A signatory to a treaty will have a different
of the obligation by the one party would depend
obligation from a party to a treaty. There is also
largely on the performance also of the obligation
a variance in the way a signatory will withdraw
appurtenant to the other party then there is this
from the treaty and where a party withdraws
principle of reciprocity applied to the treaty. In
from a treaty.
most cases if there is reciprocity for the
performance of obligation. The obligation is A.) As to meaning/definition
dependent upon the performance of the other
partys obligations then it is more or less a a signatory to a treaty is one who has or which
contract treaty. has of course signed that treaty other term in
Continental-European language is signalled.
Well of course we still have to check whats
inside the agreement whether it will be a PARTY is one who is already bound by
governed by international law or contract law? the treaty while a signatory is simply one
In this cases the law on lease. So obligations which has signed the treaty but not yet
and contracts ang applicable in this case not bound by the substantive provisions of the
unless if the parties have intended that this treaty.
agreement be governed by international law. Signature is just a possible expression of
Now if it will be governed by IL unsa nga consent to be bound. See article 12 for ways to
international law applicable to the lease of express consent to be bound. One way of
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|Selfless Notes|
expressing consent to be bound remember that automotive industry, nya gipang apil ang uban industry not
its not that the state is already bound it is covered by the authority so the president has still the
simply an expression of consent to be bound. opportunity to check the exercise of the power of the
Most common way of expressing consent to be representative whether it is in accordance with the authority
bound is Signature. Normally a mere signature given.
will not yet bind a party to the treaty because of
It is very important because at the end of the day
the practice of domestic ratification not unless
treaty making is the power of the president not by the
the treaty itself provides that the signature itself
representative.
will already amount to a legally binding
instrument. It is very seldom. It also enables of course the state concerned to ponder
further on its decision whether or not it will be bound by the
Ratification
treaty.
What is the purpose of ratification? What do you mean
So the time from Signature until Entry into force of the
by a treaty is ratified?
treaty will also give enough time for the leaders to consider
In the Philippines for example, who ratifies our treaties? whether or not it will be bound by the treaty with finality.
Under EO 459 The president. Whats the role of the Senate?
So for example, the case of the US when it signed the
Concurs with the ratification. In some jurisdictions, they dont
Rome Statute creating the International Criminal Court in
provide for that mechanism. The only exception where
year 2000 the senate, congress in general, conducted several
ratification may not be required any further probably will go
series of discussions, debates and the prevailing sentiment
straight to concurrence is when it is the president himself
then that only by ahhh..wait Rome statue creating the ICC,
who signs the treaty but more often than not the president
individuals may be charged with certain international crimes.
does not go to a conference and sign the treaty. The
Under the Rome Statute pwede ka charge.an ug genocide,
president will simply send a representative.
war crimes, crimes against humanity and acts of aggression
Ratification enables the head of state or whoever is unya one of the very controversial provisions in the ICC is the
empowered to enter into treaties the opportunity to inquire compulsory surrender of individuals made respondent in the
into the scope of the authority exercised by the ICC. so kung party ka sa Rome Statue or ICC you are bound
representative for example if the representative was by the ICC to surrender individual charged before the ICC and
authorized to sign a treaty for let say 50 years but the found in your territory.
representatives signed a treaty for 99 years.
Example: So if Former General Juan dela Cruz is being
Or lets say the representative was authorized under its full charged for war crime and found in the Philippines, the Phils.
powers in french it is called plaines pervau.If the authority is being a party to the Rome Statute is bound to surrender
to enter into a treaty in a particular industry lets say General Juan dela Cruz. Dili man ana ang US because ingun
49
|Selfless Notes|
ang US but anywhere you go in the world you will see Example si Mr. Gocuan ni deposit sa iyang instrument
Americans kahibaw na ka anang America conglomeration of ratification on 2005. So from 2000-20005 wala pa ni
man na of so many races Asians, Black Americans, White, enter into force ang treaty even if nag una ka pag
(Brunettes? #uhuh) so anywhere you go. Its easy to become 2000. Wala pa na ni enter into force as nimu wala pa.
an American citizen because of the Jus soli principle of kay we are waiting for the 20 th instrument of
Americans mmm para kita pa hilas2 ta ug Jus Sanguinis ratification pag abot sa 20 th instrument of ratification
murag mga gwapo diba.. kanang mag Jus Sanguinis katu ra mu enter into force na siya kay mao may naka butang
nang mga gwapo kaayo nga nihit kaayo ug mga itsura. sa treaty.
So 2 years after US withdrew their signature because If wala pa ni enter into force dili pa na sya legally
of the prevailing sentiment. Thats the purpose of binding nga instrument.
ratification. So what Im trying to say is a PARTY is one
B.) As to Obligation
who is already bound by the treaty while a signatory is
simply one which has signed the treaty but not yet Whats the difference between a signatory
bound by the substantive provisions of the treaty. from party insofar as obligation is concerned?
Kung ni sign ka but wala pa ka ni ratify, are you
Kanus.a mag entry into force kung binding na
already bound by the substantive content of the
ang treaty?
treaty? Answer:If a state is a signatory to a treaty
It depends on the text of the treaty. In most cases the that state is NOT YET bound by the substantive
treaty will say. After the signature the treaty will content of the treaty. If the treaty has entered into
undergo the process of domestic ratification. Upon the force, the party will now be bound by the
submission of a particular member state. For example substantive content of the treaty.
mu ingun siya ug Upon the submission of the 60 th
But that does not mean that there is no
instrument of ratification, the treaty will now enter into
obligation at all on the part of the signatory
force
because of Article 18 of the VCLT.
IOW, lets say nag sign ta ug treaty kita tanan mga
Article 18. OBLIGATION NOT TO DEFEAT THE
representatives. Nag sign tag treaty pag 2000 and
OBJECT AND PURPOSE OF A TREATY PRIOR TO
then we provided in our text of the treaty that this
ITS ENTRY INTO FORCE
treaty after having been signed by all the negotiating
states will enter into force upon the submission of the A State is obliged to refrain from acts
instrument of ratification by the lets say 20th which would defeat the object and
signatory. purpose of a treaty when:
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|Selfless Notes|
(a) It has signed the treaty or has So the basis of state responsibility is not
exchanged instruments constituting the violation of the treaty because it has not yet entered
treaty subject to ratification, acceptance into force but it is a violation of the CIL of negotiating
or approval, until it shall have made its in good faith as found in Article 18 of the VCLT.
intention clear not to become a party to Remember this is CIL and therefore this is binding
the treaty; or even to non parties to the VCLT.
(b) It has expressed its consent to be Example: States A and B entered into a treaty
bound by the treaty, pending the entry whereby State A will cede a portion of its territory but
into force of the treaty and provided that the treaty has not yet entered into force but State A
such entry into force is not unduly nonetheless in the meantime cede the same territory
delayed. to a third state so by the time that treaty between
State A and State B will enter into force wala na siyay
Even if the treaty has not yet entered into force
ma cede kay gi cede naman niya earlier. So there is
all negotiating states are bound to refrain from
inability to perform the obligation.
performing acts which would defeat the object and
purpose of a treaty. Pag sign pa lang sa treaty mu THRESHOLD: if that act will render the State
apply na ang article 18. incapable of performing the obligation under the
treaty.
Article 18 is an example of a CIL codified. The
reason for this is It is customary practice of states that Example of an act that will NOT necessarily
when they have already signed the treaty and while defeat the object and purpose of the treaty? Lets go
waiting for the time that it will enter into force they back to the Kyoto protocol example, all developed
must act in good faith because of the principle that states 1-10 under annex A signed but the treaty has
when we negotiate for the terms and conditions of the not yet entered into force in the meantime instead of
treaty we should negotiate in good faith as well. So the reducing gas emissions nag increase na nuon sila nag
idea of good faith also is important in the whole hyper industrialize na nuon sila so instead of lowering
process of treaty formation. nag increase sila. Is that a violation of the CIL on
negotiating in good faith? So the threshold .. capable
An act violates article 18 if the act already
paman siya to reduce by 20 percent in the next ten
renders the party concerned incapable of
years iya lang gi taas daan nagpa tukod na siya ug
performing the obligation under that treaty
daghan nga mga factories knowing that by the time
when that treaty will enter into force (by Anthony
the treaty will enter into force it is now bound to
Aust).
reduce its gas emission.
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|Selfless Notes|
If the treaty has entered into force, the party perfection, and then you have consummation
will now be bound by the substantive content of and then next litigation (hahaha)
the treaty.
Whats the relevance of negotiation?
Formation of treaties
To know the intent of the parties. Preparatory
1.)Proposal to draft a treaty Works. Article 31 -33 Method of interpretation.
(see VCLT)
can be done by: States, International Non-
Governmental Organizations, Governmental
Organizations. Article 32. SUPPLEMENTARY MEANS
INTERPRETATION
can be done by States--- two ways: in a bilateral
treaty, both states can seat together and draft the
Recourse may be had to supplementary mean
treaty, or one state already drafted the treaty
interpretation, including the preparatory work of the
subject only to the signature of the other state of
and the circumstances of its conclusion, in order to co
course after it had studied it.
the meaning resulting from the application of article 31
can be done by international non-governmental determine the meaning when the interpretation accord
organization article 31 :
EX. 1949 Geneva Convention had been drafted (a) Leaves the meaning ambiguous or obscure; or
because of the efforts of an NGO, guess the (b) Leads to a result which is manifestly absu
international org.. International Committee unreasonable
on Red Cross leading to the drafting of one of
the important conventions regulating armed 3.)Adoption and authentication of the text of
conflict the 4 Geneva Convention. the treaty by the negotiating states
can be done by a governmental organization like Adoption is not expression of consent to be
the UN (convention: initiated by the UN). bound. Gi adopt lang ang text meaning mao ni
ang text mao ni atung sign.an later. We will
2.)Negotiation adopt this well nag draft na ta. Article 1-10,
basa ang tanan, mao na ni ang text? Yes. Oh
Having studied obligations and contracts, you
mao na ni ang e submit for signing for
know that there are different stages in the
signature.
formation of a contract, diba dunay preparatory
stage, dunay negotiation, and then you have
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|Selfless Notes|
Given that we are now adopting the text of the which we have just adopted, enter into
treaty, how do we express our consent to be force? Are reservations allowed? Will we
bound? allow third states who did not participate
in the negotiation to join us thru
accession? Will accession be allowed or
not? How can we tell?
Article 12. CONSENT TO BE BOUND BY A TREATY We can tell by looking at the TEXT of the treaty.
EXPRESSED BY SIGNATURE Meaning the importance of the adoption of
the text of the treaty is that the text of the
1. The consent of a State to be bound by a treaty is treaty now governs the subsequent stages
expressed by the signature of its representative when: of the formation process
(a) The treaty provides that signature shall have that So once adopted na by all negotiating parties
effect; mao na na ang mu govern sa subsequent
stages. Thats the importance of the
(b) It is otherwise established that the negotiating authentication of the text of the treaty
States were agreed that signature
should have that effect; or Accession- a third state has not participated
in the negotiation stage but wants to join
(c) The intention of the State to give that effect to the
anyway so pwede siya mu accede to a treaty
signature appears from the
full powers of its representative or was expressed
during the negotiation.
2. For the purposes of paragraph 1 :

(a) The initialling of a text constitutes a signature of
the treaty when it is established that the negotiating
States so agreed; X
(b) The signature ad referendum of a treaty by a
You know why is it important to distinguish a
representative, if confirmed by his State, constitutes a
signatory from a party?
full signature of the treaty.
There are at least four areas where this may be relevant. In
the bar exam for example, it is important for you to be aware
How do we express our consent to be of the wording used by the examiner. If the examiner for
bound? When will this treaty, the text of example simply states STATES A and B are signatories to X
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|Selfless Notes|
convention but are not parties thereto. What do you treaty what are the obligations of that signatory state as
understand by that? compared to a state who is already a party to that treaty?
Ans: (maylon) I believe sir , a signatory refers to a First area of distinction: MEANING
representative from the state who signed a treaty wherein
A state is a signatory to a treaty if that state through
Sir: You mean a signatory is a person? his representative has signed the treaty but has not
yet expressed his consent to be bound (phrase used in
Ans: yes sir
VCLT), whereas a state is considered a party to a
Sir: States A and B are signatories, meaning you are referring treaty or a convention if that state had already
to the state expressed its consent to be bound.
Ans: okay sir. They signed to the treaty but with regards to a You may ask this: Inig sign nimo, di d y na expression of your
party sir, I think it refers to being bound to the terms and consent to be bound? That is a legitimate question. Indeed,
conditions of the treaty sir because as what I have expression of your consent to be bound actually can come in
remembered not so long ago sir, you could be a signatory but various forms. I asked you to read the content of the vienna
not a party since there are instances where it should be convention of the law on treaties. You want to understand the
ratified first by a for example like what we discussed a year law of treaties? Of course you need to learn by heart the
ago sir that there is a back door and front door. provisions of the VCLT.
Sir: naa gud ratification? So what you are saying is: If a treaty Why? Because the VCLT is a codification of customary
for example had been signed by Ambassador X, an international law on the law of treaties and a progressive
ambassador of the Philippines for example last July 2015. The development of customary international law. There may be
Philippines, being a signatory to that convention in July 2015 some principles outside of the VCLT affecting treaties but
but the Philippines is not yet a party until and unless such more often than not, these principles somehow derive their
signature made by the representative, ambassador X had binding character from the basic principles of the VCLT. So?
been ratified by the president and concurred by the senate. Where will you find it in the VCLT? How does the state
Is that you point. express its consent to be bound?
Ans. Yes sir. What are the ways? There are several ways:
1. Signature
Sir: So we can distinguish a signatory from a party only with 2. Exchange of instruments of ratification
regard to the meaning of who is a signatory and who is a 3. Ratification
party? Aside from that, what other distinctions can you make, 4. Acceptance
apart from the meaning? SO let us talk about obligations for
example. If a state is a mere signatory to a convention or a Which form will govern in particular convention?
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|Selfless Notes|
Well that will depend on what is provided for in the treaty a. In order to check the performance of the function of
itself. So, if the text of the treaty provides that signature is the representative. For example, if the
also the form of the expression of the consent to be bound representative had been authorized only to perform
then the signature will already make the state not only a a particular act or lets say ang representative
signatory but also a party at a single instance because the authorized lang to sign if the following are the
text of the treaty provides that signature is also an provisions of the treaty, then icheck nila if the
expression of the consent to be bound but more often than
representative kay did not perform the function, A
not, signature is not the chosen form of expression of
did not act outside of his function. Kung ikaw ang
consent to be bound.
President kay you would want to know that. The
Why? In many cases states would require that the signature only reason why the state may dispense with the
made by their representatives should still be subjected to a ratification kay only if ang presedient mismo ang
process of ratification in the home state and there are musign.
various reasons why states would opt for a period of
ratification. There are at least two recognized... (nihunong si b. Because they also want to consult the polls of its
sir kay mura daw ug namention ni pagmake up class). own people. Most of the time, if musign ang
Philippines ug treaty outside and then manews
What are the reasons why states would not lang, then people would try to react. At least,
immediately express their consent to be bound after muingon ang President : buanga nu, unpopular man
signature? Why is there a need for ratification? ang move sa Philippines in signing such a treaty,
then murag nagrally nman ni sila. So meaning, it
will give the state a chance to deeply think about
There are two possible good reasons why: its decision and probably we consider if the people
States would opt to have a period of ratification: would propbably not favour the decision of the
executive branch and therefore, the president
What I am trying to say is it is possible that consent, would not ratify and of course the senate would not
in fact it is common that signature rather, is not also also concur because there is nothing to concur.
the mode of expressing the consent to be bound but Meaning it gives sufficient period for deliberation
something else. In which case, you can have the and decision making on the part of the states.
signatory but not yet the party to that convention. Kanang mga signature, as already an expression of
Okay, if signature is not a form of expressing the consent to be bound kung very simple siguro,
consent to be bound. Is that clear? nondisputable na mga treaties or conventions.
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|Selfless Notes|
Other basis of distinction: OF THE OBLIGATION Why?

Part of customary international law is the requirement that
If a state is merely a signatory to a treaty or a when you negotiate. Naa pman ta sa negotiation stage in the
convention. Is that state already bound by the sense na di pa sya binding ang treaty in so far as substantive
substantive content of the treaty? content is concerned that states should negotiate with each
Of course not. It is not yet bound by the substantive content other in good faith.
of the treaty. However, does it mean a mere signatory has no
obligation to observe under the international law? Yes or NO? Precisely article 18 provides that in the meantime while
Is there an obligation of mere signatory lang? What is the waiting for ratification as probably the required expression of
obligation? consent to be bound, a signatory must refrain from
performing any act that will defeat the object and purpose of
Pwede ra daganan ug jus cogens or customary. Check man the treaty until that state manifests its intention not to be
sad pud na. But other than that. What is the duty reposed bound by the treaty. Okay?
upon a mere signatory?
Karemember mo what the US did to its signature after it
It is not yet bound by the substantive content but bound sya
signed the Rome statute prior to 2000, if I am not mistaken.
to what? We go to article 18 of the Vienna Convention of the
You know what the Rome statute is? That is the statute that
law of treaties.
created international criminal court and unsa man jurisdiction
Article 18. OBLIGATION NOT TO DEFEAT THE OBJECT sa international criminal court? Sir, it is the court that has
AND PURPOSE OF A TREATY PRIOR TO ITS ENTRY INTO jurisdiction of international crimes. Sakto pud but in
FORCE particular the crimes of genocide, war crimes, crimes against
humanity and acts of aggression. The four crimes considered
A State is obliged to refrain from acts which would defeat the as international crimes.
object and purpose of a treaty when:
(a) It has signed the treaty or has exchanged instruments What is the important aspect of the Rome Statute that
constituting the treaty subject to ratification, acceptance or bothered the US? Kung mamemeber or maparty ka to the
approval, until it shall have made its intention clear not to Rome Statute,the state commited itself to surrender an
become a party to the treaty; or accused before the ICC who is found within the territory of a
(b) It has expressed its consent to be bound by the treaty, State party, otherwise walay teeth(mao gud naa sa
pending the entry into force of the treaty and provided that recording) ang ICC. Required bya ang jurisdiction over the
such entry into force is not unduly delayed. person. So the idea of compulsory surrender of the person of
the accused before the ICC. Mao d y na niana ang US. Ngano
You know article 18 of the law of the VCLT is a man? Wherever you go kay daghan Americans. Hinuon ang
reflection of customary international law. mga Pilipino sad. Ang mga pinoy nuon naa all over the world
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|Selfless Notes|
kay tungod sa trabaho. Ang mga Americans kay work, accused at the domestic level. It is only then that the ICC will
business or as tourist, etc. Unya concerned ang US kay basin have jurisdiction. So the argument of US: Okay man ni na
iuse nya ang process to harass its own citizens. That is why agreement because dinami musurrender for the purpose of
when the US signed the wrong statute in 2000, ang mga prosecuting the individual at the domestic level, so it does
Americans kay invoice out sa ila concern about it. That is why not violate the object and purpose of the wrong statute, only
I have said that this is the period when you decision will have because of what we call the complementarity principle. The
to be considered more briefly (di mklaro). That is why the US jurisdiction of the ICC can be triggered only when the
decided after two years pag 2002 not to be bound by the domestic court fails to prosecute the accused at the domestic
wrong statute and so it manifested before the UN that it is no level or is unwilling to prosecute the accused at the domestic
longer intending to be bound by the wrong statute. level. That is thecomplementarity principle. So gicomplement
Giwithdraw niya iyahang signature. After which, unsa giingon na bali ang ICC jurisdiction sa domestic jurisdiction. It has to
sa US? You are not familiar with the non-surrender agreement be so because we are sovereign states. Di pwede na nay
entered into between the Philippines and the US in your supra court, when our domestic courts are functioning. Are
consti 2? Well at least in consti 1, we were distinguishing a you following?
treaty from executive agreement. The RP-US non-surrender
agreement was signed by the US and the Philippines without So for example, the textbook example about this is the
the concurrence of the Senate. Of course, our Supreme Court principle found in the kyoto protocol involving climate
said there was no need for Senate concurrence because it change.
was a mere executive agreement.
Sir, It is a treaty signed in Kyoto which deals with
environmental law especially climate change. Aw naa na gud
Why? Because the RP-US non-surrender agreement actually
ka masuwat. Di gud na pwede wala. The Kyoto protocol,
said that kung ang Americans for example found in the
under the climate change flavour(favour or flavour? Di
territory of the Philippines is accused of a crime before the
maklaro) nagprovide na sya ug mechanism on the
ICC, the Philippines committed itself not to surrender the
compulsory reduction on carbon dioxide emission kay after
American to the ICC. Reciprocal sad na. Kung Filipino found in
scientific study, emission of carbon dioxide or monoxide,
the American soil charged before the ICC. The US committed
basta carbon, destroyed our ozone layer that resulted to the
itself not to surrender the Filipino to the ICC.
warming of the earth. As a consequence, grabe na kau
mucreate ug mga natural calamities. So karon kay naa sya
The question here is: It may be a little bit complicated but
targeted emission level sa mga states. Matestingan man na
there is a principle in the ICC law that says, we call it
ug unsa nga level ang air at a particular time.
thecomplementarity principle which says the ICCs
jurisdiction however will only be appropriate where the So for example States A, B and C signed the Kyoto protocol
domestic court fails to prosecute at the domestic level the but wa pa sila nagexpress sa ila consent to be bound. Under
accused for unwilling (di maklaro 23:10) to prosecute the the Kyoto protocol, river states when they become parties are
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required to reduce gas emission up to lets say 20 percent of know of course the rule on the international law commission.
the current level. Kay signatory pman sila, States A, B and C You can take it from there.
are not yet bound to reduce the carbon dioxide level at 20
So you know of course the task of the international law
percent of the current level because that is the substantive
commission. ILC was tasked to codify customary
content of the treaty, di pa sya bound.
international law but of course since it would not be
However, in a situation say where the obligation of State A is pragmatic to just codify customary international law, the ILC
to cede a particular portion of its territory to state B. So there also put in the Vienna Convention of the law of Treaties.
is a treaty, State A is bound under the treaty to cede a Certain provisions that they considered fair, reasonable and
portion of its territory to State B but States A and B are not that why we are not yet customary international law since
yet parties to the treaty because they have not yet ratified they are expected to be followed by states. Then we say it is
the treaty but they have already signed the treaty. In the a progressive development of CIL.
meantime, State A before ratifying the treaty it had with
I think that is something that you have encountered in your
State B ceded exactly the same territory or subject matter to
readings that the VCLT is a codification of both CIL(customary
State C.
international law) and at the same time, the progressive
Do you think that this act of State A violates the development of CIL. In fact, some o f the provisions that are
object and purpose of the treaty of State A and B by not codifications of CIL and therefore only progressive
seeding the territory to State C? development of CIL may in fact have ripened into CIL at this
Well that is the textbook example of an act that violates the time. Imagine, this was drafted in 1969 and entered into
object and purpose of the treaty. Tan awa gud class, nisign force in 1980, so since 1980 up to the present, they had been
sya sa treaty but di pa sya bound to deliver, di pa sya following international community of this progressive
required to cede kay di man sila parties, but State A is development of customary international law, when states
required to refrain from doing an act which will violate the entered into treaties, they had complied with progressive
object and purpose of the treaty. So state A ceded the same development of international in VCLT and so probably one
territory, subject matter of the treaty between States and B can argue that this time these provisions have ripened into
in favour of State C. Well, that violates the object and CIL but those are just observations though. It could require
purpose of the treaty. confirmation of either an international tribunal or a most
highly qualified publicist.
XI
We will see later on in the course of studying the text of the
VCLT, which provisions are codifications of CIL and which are
I suppose you have encountered from your readings,
not.
describe as part of the(di maklaro 0:07) treaty itself, but
being the word of the international law commission, you
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So, there is an instrument that will help us understand better

the provision of the VCLT. The VCLT itself is an extensive Just a caveat class, when your read the commentaries, the
document that you have to study but if you want to study commentaries for me I think around 1960s or 1961 many
further, especially if you want to study the background of years before the final draft. It may happen that an
how a particular provision came into being, you may want to explanation of by the ILC of a particular provision. Lets say
read the commentaries of the ILC (international law art 21. The final draft will not reflect the exact article number.
commission) on the VCLT. Because of course, the ILC would Art 12 in the 1969 VCLT is not art 12, it is article something
but the provision is more or less the same. I think in no
explain the development of a particular provision and on
particular time, we have discussed about a definition of a
why they ended up on this provision. And they will help you
treaty.
understand if it is CIL or not. You know also the importance
on knowing on whether it is CIL or not. Because if in the I think we learned that the definition in the VCLT does not
problem in the bar for example. Iintrigue ka ba. mean that that is what a treaty really means. It simple means
States A and B entered into a treaty, however, states a and B that for the VCLT to be applicable, then that treaty, subject
matter of an inquiry should fall under this definition. It is an
are never parties to the Vienna convention of the law of
international agreement concluded between States in written
treaties, when State A violated an essential provision on the
form and governed by international law, whether embodied
treaty. State B accused State A of material breach and wants in a single instrument or in two or more related instruments
now to terminate the treaty. But State B has not submitted or and whatever its particular designation. I did mention that
communicated his intention to terminate the treaty. It simply treaties come in various names. Some carry the name: fact,
declared that the treaty had been terminated and so State A understanding, protocol. I think I explained this already.
now claims, you cannot just get out of the treaty simple
because of an allegation that we have breached the treaty Conclusion and entry into force of treaties Part II,
and then the other party may say that I am not required to VCLT
observe some procedural rules because we am not a party to Process of conclusion of a treaty/ How formed:
the VCLT and the Procedures are found in the VCLT were not 1. Proposal to draft a treaty.
parties to it. 2. Negotiation and drafting of the terms.
3. Adoption and authentication of the text of the treaty by
The question would be: what about the procedural the negotiating states.
requirements in terminating treaties? Are this CIL? Authentication is optional; it is usually done much alter
The legal significance of steps 1 to 3 is the way the text of
So whether a particular procedure is required to be observed
the treaty should be adopted, that is, how states are to be
in a the termination of the treaty. We have of course in the
bound when the treaty enters into force. How?
VCLT a required procedure. But is that CIL?SO, we may be
a. Base on the Travaux Preparatoires (preparatory works) as
able to understand whether a provision is CIL or not by trying these are relevant to interpret what happened during the
to look at the commentaries of the ILC. negotiation stage.
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4. Signature/ expression of consent to be bound by the treaty Of course, after proposal, any negotitation and
by the individual states, types: drafting of terms. Is it important for one studying a
Signature Ad Referendum subject to ratification/ particular treaty to know what transpired during the
approval later in the home state to bind it. negotiation?
Already as an expression of consent to be bound (Art 12) Yes. What is the importance of knowing what transpired
5. Ratification of the treaty by the individual states. during the negotiation?
6. Exchange of instruments of ratification and Entry into
force of the treaty.
7. Accession to the treaty by states wishing to join after its (and the pusil begins)
entry into force, if any (and if allowed by the treaty).
Donna: I think sir it is know the intent of the parties.
This is basically how a treaty should be formed, executed and Sir: why do we need to know the intent of the parties
there are necessary stages in the formation of a treaty and in entering into a treaty?
each stage has its own legal significance. Very quickly, of
course every formation of a treaty would start with the Donna: (di mklaro)
proposal to draft a treaty. It may done in many ways. It can
be done by one state for example proposing a draft to Sir: so you think that knowing what transpired during
another state and then they start a negotiation. It is also the negotiation would be _duntful___(di klaro 17:48) in
possible for several states to meet together in a conference interpreting the treaties? Where can we find it?
and agree to draft a treaty applicable to those attending a
conference. It could be that the treaty is drafted by a non Donna: Di klaro
state actor, usually the international organization, non
governmental organization. Sir: kindly locate for us the provision in the VCLT which
talks about intent, interpretation. Something like that.
Ex: 1949 Geneva convention governing international ...... okay Article 31. How do you interpret a treaty?
humanitarian law, meaning the geneva convention governing
armed conflict. The 1949 geneva conventions had been Donna: (di mkalro)
proposed not by states but by the international comity on
Red Cross (ICRC). What ICRC suggested to states to come SECTION 3. INTERPRETATION OF TREATIES
together and approve what they have drafted as to govern Article 31, GENERAL RULE OF INTERPRETATION
the conduct of warfare. So the provisions on how to conduct 1. A treaty shall be interpreted in good faith in accordance
armed conflict,international humanitarian law, naa na sa with the ordinary meaning to be given to the terms of the
1949 geneva convention. That was inititiates by ICRC not by treaty in their context and in the light of its object and
states. purpose.
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2. The context for the purpose of the interpretation of a What did we learn in our interpretation of the
treaty shall comprise, in addition to the text, including its constitution? How do we interpret the consititution?
preamble and annexes: Francisco Jr. Vs. House of Rep. In your const 1, you were
(a) Any agreement relating to the treaty which was made taught that based on the case that we should look at first the
between all the parties in connexion with the conclusion of text of the words of the constitution and give these words its
the treaty; plain and ordinary meaning. We call this verba legis- the law
as expressed in their words.
(b) Any instrument which was made by one or more parties
in connexion with the conclusion of the treaty and accepted
However, if giving the words their plain and ordinary
by the other parties as an instrument related to the treaty. meaning, still you do not get the correct meaning of the
3. There shall be taken into account, together with the provision, then we go to the next method of interpretation.
context: We say we go to the next because as said in Fransisco Jr.
(a) Any subsequent agreement between the parties when it explained verbal legis, it said this is where we should
regarding the interpretation of the treaty or the application of start. So naa d y preference of treaty interpretation. Start usa
its provisions; sa text before mu go sa intent. We call this ratio legis et
(b) Any subsequent practice in the application of the treaty animameaning the intent of the law as expressed/
which establishes the agreement of the parties regarding its manifested in the intent of the framers.
interpretation; In interpreting the treaty,we dont necessary follow that. In
(c) Any relevant rules of international law applicable in the interpreting a treaty. Usually, there are three approaches:
relations between the parties.
4. A special meaning shall be given to a term if it is 1. There is this textualist approach where we look at the
established that the parties so intended. words and give these words their plain and ordinary
meaning.
2. There is also the intent of the parties, the intent theory,
similar to our ratio legis et anima.
Sir: unya asa man dha ang intent?
3. Teleological approach, where you look at the object and
Donna: (di ma klaro)
purpose of the treaty. We call it theological from the word
telos meaning object and purpose.
Sir: So, you are telling us that if it is ambiguous, you go by
the intent of the treaty. Actually it is understandable for you
(REMEMBER) The question here is this: Is this similar to
to think that is how treaties should be interpreted because if
constitutional interpretation that we will first apply textualist
ato sugaton, interpretation man gud ni sya so parehas
and if we cannot get the correct meaning, that when we
parehas ra gud ni sya sa interpretation of statutes or
apply the other approach? NO!
constitution.
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|Selfless Notes|
If we look at article 31, it had been affirmed as a the event that there will be different results applying article
customary international law on treaty interpretation. 31, then it will have to adopt at least one of these different
approaches. That is only when the ICJ or any tribunal for that
What distinguishes treaty interpretation from municipal law matter to be justified in just choosing one.So, the
interpretation is that international law requires all three interpretations where the court, the ICJ in particular will not
approaches be made at one particular time as much as be with the text, will not be with the context and must be
possible. That is why in Article 31 its says: with the object and purpose. But in many instances, the
textualist approach is considered the most preferred term or
You interpret the treaty by looking at the text and giving it its interpretation.
plain and ordinary meaning-textualist.,
Now, even then , the interpretation may yield into
Unsay sumpay, in their context-that is intent.
1. Ambiguity
3rd. -And in the light of its object and purpose-theological 2. Unreasonableness
interpretation
If it will result to either of the two, then we go to article 32
Mugawas nya daw sa bar: How do you interpret
treaties? Naa na daw ta answer- Article 31. Article 32. SUPPLEMENTARY MEANS OF
INTERPRETATION
A treaty shall be interpreted in good faith in accordance with Recourse may be had to supplementary means of
the ordinary meaning to be given to the terms of the treaty in interpretation, including thepreparatory work of the
their context and in the light of its object and purpose. treaty and the circumstances of its conclusion, in
order toconfirm the meaning resulting from the
Or another question sa bar puhon: What is the teleologial
application of article 31, or to determine themeaning
interpretation of.. treaties? kbaw nta
when the interpretation according to article 31 :
(a) Leaves the meaning ambiguous or obscure; or
So, however most of the times as what authors say. Since
many treaties undergo a very long and very comprehensive (b) Leads to a result which is manifestly absurd or
treaty making process. Most of the times, looking at the text unreasonable.
in their context and in the light of their object and purpose
will yield similar results. However, there had been instances
also , not all treaties are perfectly done. So there had been This where we go to the supplementary means of treaty
circumstances where the interpretation of the text will not interpretation and there two.
necessarily been compatible with the context and/or its
object and purpose. In which case, the court should not force 1. The preparatory or the Travaux Preparatoires
itself, of course it will have to try to apply article 31, but in
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|Selfless Notes|
2. The circumstances or we call it the contemporaneity that treaty enter into force? How will the states express their
principle(wa ko sure sa term. Paspas ayu pagsay ni consent to bound. There are a lot of ways of expressing the
sir)- the circumstances of this conclusion. consent to be bound such as signature, etc. Which of these is
the mode of expressing the consent to be bound in the treaty
Before, the international tribunal will make use of the our example?Are other states allowed to become parties by
preparatory works in lieu of other approaches. It is accession?
required that the use of other approaches as I have
mentioned earlier will result to ambiguity or Donna: yes sir
unreasonableness. But many times also, applying any
of the approaches mentioned earlier and applying the Sir: In this treaty that we are talking about? How do
Travaux Preparatoires of preparatory works, we we make sure the accession is allowed? Are states
sometimes yield in the same results. In which case, it allowed to make reservations in the treaty that we
is okay for the international tribunal to make use of had?
preparatory works. Meaning to add to its
interpretation. Preparatory works and contemporaneity Donna:It depends sir if it is provided in the treaty
circumstances of its conclusion. That is why it is Sir: It is provided in the treaty because the treaty can provide
important to know what transpired during the that reservation be not allowed. Can you give an example
negotiation in the drafting of the terms because we where reservation cannot be allowed? The Rome statute
want to know the circumstances in the conclusion of
allows no reservation.
the treaty.
What I am trying to say is all those questions that I have
The same thing daw in OBLICON. asked can be answered by looking at the text of the treaty.
What it means when we say adoption and authentication of
After that there is the Adoption and authentication of the text of the treaty is that if we adopt the text of the
the text of the treaty by the negotiating states .
treaty, then what will govern the next stages will be in
accordance with the text of the treaty. Because this treaty,
Question: What is the importance of the adoption and
this assumed treaty that we have already adopted says
authentication of the text of the treaty?
expression of consent to be bound shall be by ratification and
not just by signature. Then the next stages of ratification and
Donna : (di mklaro)
other stages will have to be in accordance with what is
provided for in the text of treaty. When will this enter into
Sir: adoption and authentication is not yet the
force? Of course you cannot answer that because you have
expression of context to be bound. REMEMBER THAT! Wa
to see the text of the treaty. Does it say that it will hve to
pa gni ni signature. For example. We have here a particular
enter into force at a particular day or one year after the 60th
treaty and we have adopted the text of the treaty . When will
party will ratify? We will never know because it is provided in
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the text. That is why it is important to limit sometimes the note its the President but that ratification will be
authority of certain representatives. concurred in by the Senate.
XII International Ratification
Importance of the adoption of the text of the treaty Would come into force when there is already exchange
of the instrument of ratification.
The text of the treaty will now govern the subsequent
stages of the treaty formation so this is where we see In a multi lateral treaties very difficult to exchange
whether states will continue to express their consent instruments of ratification so what a treaty will usually
to be bound. provide is that ratification takes place when the
instruments of ratification are deposited with a
Some states will not adopt a text of a treaty if for
designated depositary normally the Secretary of the
example the treaty provides that NO RESERVATION is
United Nations.
allowed.
After adopting the text of the treaty, is a consenting
Then afterwards there will be the expression of the
state now bound by the terms or the substantive
consent to be bound and the text of the treaty will
provisions of the treaty?
provide for a method of expression of consent to be
bound so that governs primarily and the treaty will NOT YET because a treaty will still have to enter into
choose among the various ways by which consent may force.
be expressed.
Normally treaties do not take into force right away.
Two kinds of Ratification They enter into force after expression of consent to be
bound (e.g. this treaty will enter into force upon the
1.)Ratification at the Domestic Level
deposit by the 60th signatory of its instrument of
2.)Ratification at the International Level
ratification or 1 year thereafter).
Domestic Ratification
In the meantime as you have already learned the state
Done by the head of state. concerned is still governed by a customary
international law on the prohibition against the
President ratifies the treaty and this is appropriate if a doing of acts that would defeat the object and
treaty had been signed for example by a purpose of the treaty (Article 18 VCLT).
representative and then of course in our system the
ratification of the President will have to be concurred Article 18 is a codification of CIL and basically this is on
in by the Senate. Its not the senate that ratifies take the basis of another principle in international law, the
more general one, which require States to negotiate
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|Selfless Notes|
with one another in good faith. Its not compatible with kay otherwise as soon as it has expressed its consent
good faith if while waiting for the time that the treaty to be bound.
will enter into force the state will perform acts that will
PROBLEM: Enter into force
defeat the object and purpose of the treaty.
States A,B,C,D and E entered into a treaty. The treaty

Acts that will defeat the object and purpose of the had 10 different articles. States A,B,C and D accepted
treaty example all ten without reservation. State E however did not
agree with article 10. So it indicated that it needs to
States A and B entered into a treaty whereby State A
make a reservation to article 10. Did State E become
will cede a portion of its territory but the treaty has not
party to the treaty? Assume that State E had become
yet entered into force but State A nonetheless in the
party to the treaty, what is the treaty relationship
meantime cede the same territory to a third state so
between State E and State A,B,C, and D?
by the time that treaty between State A and State B
will enter into force wala na siyay ma cede kay gi cede
naman niya earlier. So there is inability to perform the
obligation. We will go back on this at page 3
THRESHOLD: if that act will render the State
incapable of performing the obligation under the
Reservation
treaty.
A unilateral statement, however phrased or named,
When will a Treaty enter into force?
made by a State, when signing, ratifying, accepting,
what is primarily provided for in the treaty. approving or acceding to a treaty, whereby it purports
to exclude or to modify the legal effect of certain
otherwise if there is no stipulation as soon as all
provisions of the treaty in their application to that
negotiating States have expressed their consent to be
State.
bound.
Reservation vs Understanding or Declaration
In the case of third states which did not participate in
the negotiation it can become parties nonetheless if The difference is if you talk about reservation the State
the treaty itself provides or permits accession by third making the reservation wants a particular provision of
States and when will the treaty enter into force insofar the treaty to be INAPPLICABLE to that state.
as third states becoming parties via accession. That
would again depend on what is provided in the treaty
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No question kung bilateral treaty class. I give you ten the provision is still applicable to it however it should
articles kung mu disagree sa usa wala ta kay unsa be applied to it in particular way in particular context
paman ang pulos ana. Otherwise ang effect atu ning e because probably lain siya ug system.
delete ang Article 10 duha gud ta niya you are saying
Ex. In Federal States may national federal
that article ten should not be applied to you only
government and there are local governments
articles 1-9 then that means e delete na lang na natu,
and there is federal constitution and there are
meaning it cannot be retained in the treaty duha ra
local constitution and there are local statues as
gud ta.
well so if a particular treaty for example
But in a multilateral treaty class say for example 100 mandates that something should be done in a
states it is extremely difficult to require unanimity in form of legislation by all member states so
all the provision. Lain2 man ug interest ang mga states thats the obligation.
lain2 ug political climate, economic standing, culture,
The obligation for example is to pass a
etc. so naa gyud provision nga probably prejudicial not
legislation putting a higher penalty for
acceptable not desirable to one state but very
abuse of authority or transportation of
desirable in another. The process of RESERVATION
certain product.
resolves that dilemma.
The mandate is for the state parties to pass
Okay saying pud, sa ten articles useful baya ang nine
legislation. Kung ikaw ang federal state you
for all of us nya tungod kay 30 states are aggrieved on
have to clarify mu ingun ka oi lain baya ang
article ten dili na ta ka enter into treaty. So the
system sa amoa if the federal government will
reservation resolves that, that one state can say we
pass legislations it would be at the National
are okay with articles 1-9 but when it comes to article
level and there is also Local level.
ten we want to be excluded from the application of
article ten. So for us, we shouldnt be mandated to pass
legislation in all local levels but we can only
*Rhetorical Q: if that is the situation nga nag
pass legislation in the national level. So when
reserve siya party ba siya sa treaty or
this provision will be applied to us we declare
convention?
and it is our understanding that
Understanding- the State making an understanding compliance to that provision means
or declaration does not seek to be excluded from the passing of national legislationonly. So if
application of the provisions unlike reservation. there is no local legislation implementing that
provision in the treaty, it shouldnt be
considered as breach of that provision
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|Selfless Notes|
OR States A,B,C and E as among themselves but as to

Article 10 States A,B, and C cannot compel State E to
We can say that this mandate in the treaty will
follow because the reservation is accepted.
not be applied in our particular region ha
because in this particular region naay What about State D who rejected the reservation,
indigenous people diha, we recognize their Whats the relation between State D and State E who
rights. So in our country naa miy lugar nga made the reservation?
recognized ilang own practices so kani nga
Reservation of the Genocide Convention Case
provision applicable ra ni sa mao na nga mga
territories wa ni labot nga particular area kay When was the opinion made? 1951. So we didnt have
lain ni sila ug culture. We cannot also compel the Vienna Convention on the Law of Treaties yet on
them to follow the mandate of the convention reservation okay? It is important for you to know that
kay mu contradict sa ilang culture but willing the Genocide Convention Case of Reservation was
ang rest mu comply ana. So thats a good tool to decided before the Vienna Convention on the Law of
use if you want to still become a party and you Treaties entered into force. So the ICJ had the liberty to
still want that provision to be applicable in a design a rule in regard to reservation, why was it
certain way important? Its because well number 1 it involve a Jus
Cogens Rule on Genocide so this therefore led the ICJ
Did State E become a party to the treaty?
to redefine the rule on reservation because if you
So if all of them will say that the reservation is havent encountered it yet in your reading before the
incompatible and will therefore reject the reservation genocide convention the practice of States was to
then state E cannot become a party to the treaty??? adopt the UNANIMITY Rule which means if a States
Yes? Simple rana siya pero what if States A,B, and C makes a reservation and one of the other States
said were okay and I think its not incompatible with objects to the reservation then that State CANNOT
the object and purpose of the treaty but State D become a party to the convention so for a State
insisted that NO NO, we dont accept the reservation making reservation to become a party to a treaty all
its incompatible with the object and purpose of the other states must accept the reservation.
treaty, oh mao nana ang question run, will State E
Ang problema man gud ani class kay Genocide man
will become a party to the treaty if some
gud. Ug di ka mag liberal,this is therefore the result of
accepted the reservation while others objected
the Genocide Convention Reservation Case, you
the reservation?
cannot demand from the reserving State kay di man
Whats the relationship between States A,B, and C with siya mahimong party diba? Ai mag reserve ko unya ni
State E? Parties sila. Articles 1-9 will be applicable to object man mo, kay ni object man mu dili mu party
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unya nag genocide man sa ilang lugar nya karun imu 2.) If the reservation is made on the provision that has
na silang e punish for or charge them of breach of the prohibition on reservation.
the provision against genocide.
Ex. It is possible na out of 10 articles ang article
ICJ:there is a need to liberalize the rules especially in 5 no reservation is allowed, which means if a
regard to jus cogens norm but eventually the liberality reservation is made on Article 5 then that is not
rule as oppose to the Unanimity Rule had found its a permissible reservation but pwede siya mu
place on the Vienna Convention on the Law of Treaties reserve sa all others.
nga dili na ta mag adopt ug Unanimity Rule.
3.) Reservation is really incompatible to the purpose of
So pwede diay nga ma party ka even if naay nag a treaty
object sa imung reservation. But that would depend
Can a reserving State be regarded as a party to a
on the ground of the objection. The object should be
treaty while maintaining its reservation?
grounded on: whether or not that objecting State
considers the reservation as incompatible with If the reservation is objected to by one or more of the
the object and purpose of the treaty in which parties but not by others. Yes he may be a party to a
case as between them the objecting State and convention.
the reserving State, wala silay relationship. As
between them wala silay relationship but as What is the effect of the reservation as between the
between those accepting naa silay relationship. reserving State and:
So in the reservations to the Genocide Convention, A.) the parties w/c objected to the reservation
Can a reserving state be regarded as being a party to B.) those which accept it
the convention while still maintaining its reservation?
On account of the abstract character this question, theres no Concept of Reservation Applied to State Succession
absolute answer, it would depend on whether there is a
A good example of State Succession is when a territory
reservation or not and depending on the ground of
is ceded to another. In our case, we have been under
reservation. The rule then is the reserving state can be
Spain for 333 years under the Treaty of Paris. The
regarded as a party to the convention if the reservation is
Spain ceded the Philippine territory to the US. So
compatible with the object and purpose of the convention.
insofar as the Philippine territory is concerned we have
been under Spain and under the US in the facts, so
When is reservation not allowed?
naay state succession from Spanish Sovereignty to
1.) Not allowed under the treaty. American Sovereignty and eventually on our own when
we were granted independence on July 4 1946. So
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there is an example about State accession now in a So ang successor state mu ingun we dont apply
state succession there is an important consideration tabula rasa or clean slate doctrine, we accept certain
there what would be the effect of State succession to treaties here. So treaties 1,2,3, of the predecessor
treaties entered into by the State when they continue? state we will accept that but we make the following
reservation. So naa na sad siyay power or discretion
not to accept the entirety of the treaties entered into
by the predecessor state.
CLEAN SLATE DOCTRINE or Tabula Rasa 3 instances where reservation may not be allowed
If there is State Succession the rule is, these treaties 1.) If it is prohibited by the treaty (e.g. Rome Statute
will not bind the new State. does not allow reservation in all its provisions).
2.) Reservation is permitted only to some provisions.
Unless of course the Successor State decides to 3.) Reservation is incompatible with the object and
continue that treaty or accept the obligation purpose of treaty.
established by previous treaties or treaties entered
into by the predecessor State. Registration
In the case of the US under the treaty of paris wala Article 102(1) of the United Nations Charter provides
gyud ni dawat ang US nag clean slate gyud siya that:
kanang mga treaties entered into by Spain which Every treatyentered into by any Member of
affected the Philippine territory nag clean Slate ang the United Nations after the present Charter
US. comes into force shall as soon as possible be
registered with the Secretariat and published by
If it happens that the successor state accepts it
the treaties entered into by the predecessor
state now its allowed for that successor state to
make a reservation.
The only effect of non-registration is that the parties
Under the 2011 International Law Commission Guide cannot invoke that treaty in any organ of the United
to practice on reservation of treaties, reservation is Nations. So kung mu ingun ka ug dispute resolution
defined as unilateral statement made by a state when ang organ sa united nation ana is the ICJ .. But sir it
signing, ratifying, accepting, approving, or acceding to does not make sense, binding siya but cannot be
a treaty. A state or international organization, when invoke before the ICJ or any organ of the united
making a notification of succession to a treaty. nation. It makes sense because you can actually
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enforce the treaty not necessarily thru the Every treaty enforced is binding upon the parties to it
instrumentality of the ICJ. and must be performed by them in good faith.
Secret Treaties Article 2 of the UN Charter also impliedly mandates that
states entering into treaties and agreements must also
Secret treaties are treaties that are not registered with
observe the agreements in good faith. It has to be because at
the UN. UN monitors if such treaty is compatible sa
the end of the day, international law is established by states
object and purpose of the UN Charter because under
for the purpose of ensuring friendly relations. So the
Article 103 if Im not mistaken of the UN Charter all
importance of ensuring friendly and peaceful relations
treaties incompatible with the UN Charter di na siya
between the parties mandates that treaties must really be
enforceable and what will prevail is the mandate of the
observe in good faith. However, as you know, there are
UN Charter as you will see later on naa diay treaty
instances where the states may be allowed to withdraw from
nga preferred over others and thats the UN Charter
the treaty. And in fact, I think I mentioned already the
manner in which the state may withdraw from a treaty if it
had already been a party to the treaty. This was when we
where distinguishing party from a signatory.
So its either that the parties have provided for exit provision
XIII in a treaty, then they may withdraw on the basis of the
provision of the treaty. Otherwise, withdrawal can be done
When the treaty already enters into force, then the states only where:
which participated in the formation of the treaty will now be
properly called the parties to it and there will now arise the 1. The parties have intended withdrawal from the
treaty
obligation to comply with the terms and conditions of the
2. Where it is implied in the nature of the treaty
treaty the substantive content of the treaty. And this
compliance must in fact be in good faith because that is a
mandate of a fundamental principle in international law Now, where this is already the case. Meaning withdrawal is
called pacta sunt servanda. asserted or made by a state party to a treaty not on the basis
of the exit provision of the treaty but on the basis of implied
When the treaty comes into force, what comes to mind
authority to withdraw alleging that there is such intention
therefor is the principle of pacta sunt servanda. Agreements
between the parties and second or alleging that the nature of
must be complied with or observed in good faith. Our basis
the treaty would allow withdrawal. The international
for this is Article 26 of the Vienna Convention.
community has viewed that as highly exceptional law. So, the
way international law will view withdrawal from a treaty
where it is based on implied right to withdraw. That should be
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treated as highly exceptional. Meaning there must be clear require a higher evidentiary requirement of clear and
evidence showing that withdrawal can be done. convincing evidence. Same thing in invalidation of a treaty,
also the grounds for termination of a treaty would also
Why is that so? Because allowing a party to withdraw, simply
require clear and convincing evidence to establish the ground
on the basis of an implied right to withdraw is a derogation of
for terminating a treaty such as material breach, impossibility
pacta sunt servanda. So the Internation Court will say, You
of performance and fundamental change of circumstance. In
are withdrawing from the treaty, what is your basis? There in
fact in the Gabcikovo-Nagymaros Project Case and in the
no exit provision in the treaty. And then the state-party will
Fisheries Jurisdiction Case UK vs. Iceland, both cases
say, We are withdrawing Your Honor because it is clear that
established the rule that fundamental change of
the parties have intended withdrawal or at the very least the
circumstance is highly exceptional and the grounds are
nature of this treaty permits withdrawal.Is that so? Kindly
narrow in scope and therefor the evidentiary value required
explain.
to establish the ground would not just be mere
The Court must be convinced clearly. Why? As I have said, preponderance of evidence. That is because of pacta sunt
withdrawal is in derogation of the pacta sunt servanda rule servanda.
and pacta sunt servanda is the more fundamental rule that
Another important provision is Article 27.A party may not
withdrawal or the right to withdraw from a treaty.
invoke the provisions of its internal law as justification for its
Consequently also, the grounds for invalidation of treaty and failure to perform a treaty. This rule is without prejudice to
the grounds for termination of a treaty will also have to article 46. This is a very important rule. Again, pacta sunt
hurdle a higher threshold before they will be admitted or servanda. So you have committed yourself to comply with
accepted by international courts. So grounds such as grounds international obligation, so please do not invoke internal law
for the invalidation, lets say a state pleads invalidation on as justification for non-compliance with international treaty
the basis of fraud, coercion, corruption, error and other obligation. Otherwise, if there is no such rule then easily
grounds to invalidate the treaty. The required evidentiary rule states can just evade from treaty obligations by simply
would require a higher threshold. In fact, some most highly passing an incompatible domestic law. So ma-defeat na sad
qualified publicists would require a clear and convincing ang purpose of international law which is to ensure peaceful
evidence in establishing this. And that is not common also in and friendly relations between states.
our Civil Law, in our Obligations and Contracts. While civil
So this is a classic question in international law? Which
cases would generally require only preponderance of
therefor should prevail, international law or domestic law?
evidence, specific allegations however when these
This provision poses exactly that question, what if naa jud na
allegations would purport to invalidate contract would also
nga internal law? What if naa jud na nga statute? Republic
require clear and convincing evidence. Like allegations of
Act for example, ni-exist na ba and then there is also on the
fraud, for example. Preponderance of evidence as a whole
other hand a treaty obligation incompatible. The VCLT says
but to establish a specific allegation of fraud, the court would
we cannot invoke our own law to justify non-compliance with
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the treaty obligation. Does it suggest therefore that

international law or international treaty obligation is 2. You also have to characterize what do we mean
preferred over domestic law? by municipal law? You know, in most countries that
adhere to the supremacy of the constitution. Meaning
Usually, I tried asking this question sa 4 th year. Ingon sila, in these are nations that are following a written
case of a conflict between international law and municipal constitution, you expect in this jurisdiction a hierarchy
law, first of course, the court will try to harmonize. Second, in in their legal system and hierarchy in the sense that
the event that it cannot be harmonized, then the law that will there is a constitution that is supreme over all other
prevail depends on the forum. Meaning if the forum deciding laws followed by national legislation and then you
the issue or controversy is an international tribunal like the have local legislation in the form of ordinances. So 3-
International Court of Justice, ang usual nga answer mao ang layered na sya in many cases. In some jurisdictions
international law prevails. The proper term in international that do not have a written or codifies constitution like
law is expected to prevail. Or that we expect the ICJ for Great Britain for example, they do not follow
example to let the international law prevail. On the other supremacy of the constitution but supremacy in the
parliament instead. Meaning, they dont have a written
hand, if the case or controversy could be resolved by the
constitution so walay regime supreme than the acts of
local or domestic forum like our Supreme Court, municipal
the parliament kay ang mga acts of the parliament
law will prevail. But the correct thinking is the domestic court along with decisions of courts and customs and
is expected to favor or apply municipal law rather than traditions, they all belong to one category of law in
international law. parliamentary system. So walay supreme constitution
in other words.
If this will be your answer in the bar exam, you will be given
points but this is not accurate. Because this is too simplistic
So mo-matter sad na sya especially in our case for
of an approach to such so very comprehensive question. example, didnt we interpret Sec. 2 Art. 2 of the
Why? Because when it says international law, okay lang kung Constitution, the incorporation clause, when it says
treaty obligations. Pero kung moingon ka nga general sya on GAPIL (generally accepted principles of international
which should prevail, ay you will be making a lot of law) forms part of the law of the land as referring to
qualifications and this will of course confuse us. GAPIL as having equivalent value or legal authority as
our statutes. And thats equivalent to our constitution.
1. You will have to qualify which international law
So when there is a conflict between the constitution
are we talking about. Are we talking about
and a statute, you know that the constitution prevails.
customary international law, are talking about
Similarly, if there is a conflict between our constitution
conventional law meaning based on treaty, are we
and GAPIL, we expect constitution to prevail over that.
talking about general principle of law or are talking
about jus cogens norm? So imoa pa i-characterize,
In fact, no less than Ichong vs. Hernandez confirmed
upat na daan.
that municipal law particularly the constitution can
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|Selfless Notes|
prevail over treaty obligation. The Philippines and SC went on describing police power that it is the least
China first entered into a Treaty of Comity/Amity limitable, most pervasive and most demanding of all
whereby in particular the Philippines committed itself inherent powers of the state. So asa naman ron ang
to treat Chinese found in the territory of the Philippines the state cannot invoke internal law as justification to
fairly and without discrimination. Later, Congress evade treaty obligation? Because it is our SC which
passed the Retail Trade Nationalization Act limiting decided the case. It may have been a different result if
retail trade to Filipinos only. Disqualifying therefor all China brought the matter to an international tribunal
aliens or foreigners engaging in retail trade. Only in and of we have been sued for an international
wholesale because the idea there is that if we allow wrongful act for breaching that international treaty on
foreigners to engage in retail trade, our retailers can amity, then the result would have been different.
hardly compete because of lack of the capital. Because of the thinking nga ang forum sad mo-matter
According to the Court, we are confronted here with a in a way. What I was trying to say is i-distinguish pa
statute (Retail Trade Nationalization Act) and a treaty gani nato ang international law i-characterize nato and
(Treaty of Comity/Amity). then i-characterize sad nato ang municipal law. But
anyway, what Im saying is in the Philippines naa tay
Asa naman karon ang mo-prevail? supremacy of the Constitution, so thats one, mo-
Kay under the Retail Trade Nationalization Act, ang matter na.
Chinese dili na ka retail, wholesale nalang.
Second, of course kung jus cogens norm, do you think
So what did the SC say? it can even limit our Constitution? Definitely jus
SC said nga we can solve this controversy by applying cogens will prevail over our ordinary statutes but what
statutory construction because our incorporation about our Constitution? Can the jus cogens norm
clause only means that GAPIL including treaties declare as incompatible, rather invalid, the
therefor, only partake of a nature of a statute. Nya Constitution? Well of course in international law, it can
nahitabo man nga earlier man ang Treaty of be said that jus cogens will always prevail because it
Comity/Amity, later naman ang Retail Trade involves non-derogable principles. Diba cannot be
Nationalization Act. Of the same character man sila, derogated, not even by a supreme Constitution.
pareho man sila nga general law, pareho sila nga
special law. Ingon pa jud and SC nga in any case What about domestically, do you think the same
without applying StatCon, the Retail Trade thinking will be applied? It is still to be tested right?
Nationalization Act was passed as a general welfare Because in fairness atong Constitution is compliant
measure and therefor pursuant to police power. with international law. So wala nay conflict anang
dapita. But assuming nga naa, what do you think will
Mao na ni karong atong principle, police power cannot be the thinking of the court? Well Planas vs. Hill, our
be bargained away by treaty. In the same manner that own SC said that questions about policies enshrined in
police power cannot be bargained away by contract. the Constitution, thats a political question. Only the
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|Selfless Notes|
people can decide except to the extent that the policy nature because it is God-given in accordance with the
in the Constitution contravenes jus cogens norm. So natural law theory of St. Thomas Acquainas. And since it
kung ang international law that we are talking about is is natural and innate in each and every one of us,
jus cogens norm, it can even prevail as against our according to Hans Kelsen, there is therefor the possibility
own Constitution. of the universality of a law. So its possible nga naa jud
diay law nga mo-exist nga universal. Hans Kelsen referred
3. The outcome will also have to vary depending on the to that law as the international law. So there is only 1
forum. If the controversy is to be decided by an
system therefor even domestic legal system will have to
international forum, it is expected that international
abide by this universal law called international law. So this
law would be upheld. In particular, if you talk about the
ICJ, it is mandated by its statute under Art. 38 Par. 1 domestic law can only be valid if it conforms to
that the ICJ shall consider as sources of international international law. If that domestic court thinks of monism,
law the following in deciding cases. So mandated and then that domestic court will let international law prevail
ICJ to apply international law. On the other hand, if the over its own domestic law.
issue is to be resolved by a domestic court, whats the
On the other hand, if that domestic court is dualist in
rule? The court is expected to uphold municipal law,
thinking, then there is a chance to let municipal law
you should use the word expected because we cannot
come up with the rule that the domestic court will prevail over international law because in the dualist
uphold municipal law. You know why? That will not thinking, there is no singular universal law in this world.
depend whether the domestic court is following the This world is divided by 2 legal systems, one is
monist or dualist approach. international law and the other domestic law. Distinct and
separate. So kung kana ang i-apply sa domestic court,
So magqualify ka sa kung unsay meaning sa pwede sya nga ang international law ang mo-prevail. But
international law, magqualify ka sa municipal law that is not to say that that is the thinking of our court.
on one hand and then magdetermine ka sa forum Many times also, our court has applied international law
on one hand and magdetermine ka sa monist- over domestic law and even over constitutional rights of
dualist approaches on the other. individuals. For example, Reyes vs. Bagatsing. What
where the demonstrators exercising at that time?
Freedom of expression. Unsa may ni-prevail? Our
What does it mean? In monism theory, there is an obligation to protect and remain and consider inviolable
understanding that in this world there is only one legal diplomatic premises, duty to refrain from disturbing the
system. Thats why its called monism. That is premises. Ni-prevail sya over freedom of expression!
international law. This thinking is highly influenced by the
natural law theory and under this theory, each and every XIV
individual is endowed with the ability to determine what is
Previous discussion:
right and what is wrong. And that ability is part of our
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|Selfless Notes|
Reservation, Effect of a treaty after entry into force, A party 1. Text of the treaty (ordinary meaning + context +
cant invoke an obligation of its domestic law to evade object and purpose of the treaty)
compliance. 2. Intent of the Parties
3. Object and Purpose of the treaty
Discussion proper: Means of Interpretation:
Another effect when ~~~~putol at 3:14~~~~ a treaty. But a. Preparatory works (travaux prparatoires)
that is the general rule, because the parties can provide in b. Circumstance of conclusion (contemporaneity)
the treaty it self that I cant be given retroactive application.
A treaty also cannot prejudice a third state without the
consent of the third state. Especially when we speak of state Article 31 of the VCLT is a customary international law and
its different from a person in a sense that theres sovereignty the interpretation there would require a combination of the
in the part of state and of course basic principle on recognized or major methods of interpretation.
sovereignty, A States interest cannot be affected, not be
regulated, cannot be prejudice, compromised or affected in There are three recognized methods of the interpretation of
any way without the consent of that state. Precisely consent treaty. One is the textualist approach thats giving the text
is the exception to sovereignty. or the word of a treaty their plain and ordinary meaning.
Second, in the context, meaning the intent of the parties.
And also as to application of treaties, same thing as to time, The third one is the object and purpose so thats the
its not retroactive generally. teleological interpretation of the treaties from the word
As to its application on territory, general rule it should be telos meaning object and purpose. The idea is that as much
binding upon the territory of state parties. State in the treaty as possible the tribunal interpreting the treaty and this
that it is not applicable to certain areas or territories of that should be in most cases the ICJ, will have to combine all 3
state. Before Art 29 had been very important because some and come up with a specific meaning to the provision of the
states would indicate in some treaties that they wont involve treaty. Meaning you dont interpret a treaty on the basis on
their colonies, when most states still had colonies in the past, one method alone, thats the import of Art 31. So you
in the application in the treaties they have entered into. It combine therefore the ordinary meaning of the text and the
becomes relevant. Nowadays, we dont have similar situation object and purpose of the treaty. So thats how you read the
where a state may be, meaning a territory is still a colony of text of the treaty give it its ordinary meaning then in a
another state. particular context and the object and purpose of the treaty.
The next paragraph of art 31 would have to deal with what is
the meaning of context.
Interpretation of Treaties
Basic Rules: What consists of the context of the treaty?
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|Selfless Notes|
Paragraph 2 in the context for the purpose of interpretation There are several other methods of interpretation. In fact,
of the treaty includes any incidental agreements related to outside of these, there are other methods which may be used
the same subject matter that had been entered into by the parallel to this or which may be used under special
parties. Any instruments which was made by one or more circumstances. For example, there maybe an issue on
parties in connection with the conclusion of the treaty and whether you apply international law today to a particular
accepted by the other parties as an instrument related to the treaty that had been executed many years back where the
treaty because this usually shows the context under which international law or regime at that time had been changed.
the particular treaty had been interpreted. However, putting State the case of the Island of Palmas for example, its a
all 3 together in one process of interpretation may not give a 1927 arbitration case by Max Hubert the arbitrator. One of
definitive result. the issues there was whether the manner by which islands of
Palmas was acquired by Spain which was through used of
So, the ICJ for example, may be compelled to just adopt one force affected the title of Spain because at that time Max
method of interpretation and prefer over the others. Actually, Hubert decided the controversy, use of force already started
the textualist approach had been considered preferred than to develop as a prohibited norm in PIL. But ofcourse, he
the second: the object and purpose of the treaty. Where the declared that at time you cant apply the present
interpretation however will result still to ambiguity or that international law regime to a treaty that had been executed
interpretation will result to ambiguity. Thats the time the ICJ in the past which was then subject to a different regime.
may make use of supplementary means of interpretation. We Thats why there is this method of interpretation called the
have the Preparatory works or travaux prparatoires of that intertemporality of law. Meaning, when you interpret a
treaty and also the circumstances of the conclusion or the treaty, and when youre to apply a particular law to that
contemporaneity of its conclusion. That will also help the ICJ treaty. That law that should be applied to the treaty must be
come up with definitive meaning of interpretation. When we the law prevailing at the time of its execution.
interpret treaties were govern primarily by art 31 thats
So when the Treaty of Paris was executed in sometime in
customary international law (CIL) and we may make use of
December 1898, there was no definitive prohibition yet. As in
other methods of interpretation only when the ICJ cannot get
fact as a CIL prohibition on the use of force. It was only in the
the definitive meaning of the provision of the treaty by
mid 1900 where used of force was definitively declared as
applying these 3 methods so one may be preferred over the
prohibited in international relations. Therefore, according to
other. Theres no rule that, unlike our case, that we should
Max Hubert the manner by which the Philippine Islands
first consider text before the intent. We dont have that in PIL
including the Islands of Palmas had been acquired by Spain
so generally methods of interpretation are flexible in the part
which was through use of force didnt affect its title to the
of the ICJ. Especially the study of PIL is basically a study of a
territory of Philippine Island. Because at that time it was
common law regime. Its more of a common law approach, no
acquired the use of force was not yet considered as a
hard and fast rule, especially on interpretation.
prohibited norm under the international law.
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|Selfless Notes|
The opposite of intertemporality of law theory is to treat and 1) good faith

look at a treaty as a leading instrument. This is similar to the
2) giving the words of the treaty in context and in the light of
way some justices of the SC would interpret the 1789 Consti
its object and purpose.
of the US. More often than not in the US they would interpret
the provisions of the Consti which was established 1700 but Invalid or Defective Treaties
to be interpreted in the light of the new norms or principles Head of State or Government disregards constitutional
at the time that it is to be interpreted thats why its called requirements for ratification (theory) vs Art. 46
the living tree method of interpretation. The document Unauthorized representative
in the treaty should be interpreted as if it is a living Ultra Vires (Art. 47), when restriction had been made
instrument therefore it must adopt changing circumstances.
known the other party prior to expression of consent
In the same way therefore, the instrument of the treaty will
Error (Art. 48)
apply what is known living tree method of interpretation. The
a. About a fact or situation which was assumed to
other term is, involutivemethod of interpretation. Meaning,
exist at the time of the conclusion of the treaty
the treaty should be interpreted in a way it should be b. Formed essential basis of consent, and
considered something that evolves and adopts to the c. State has not contributed to the error
changing circumstances. Fraud (Art. 49)
Has the court been given by international law liberty as to Corruption of Representative (Art. 50)
which of this methods will be used? Yes. Theres liberality in Coercion of State by the threat or use of force (Art. 52)
what method of interpretation the ICJ will use. Sometimes Contravenes Jus Cogens (Art. 53)
there is one principle of method of interpretation called the
principle of effectiveness. It is related to the intent of partys
There are many ground by which you can invalidate a
theory. That simple means that a treaty may be interpreted
defective treaty.
to keep effect to the intent of the parties and the object and
purpose of the treaty. There are various methods of What is the effect of municipal law regarding
interpretation that the ICJ may employ in interpreting a competence to enter into treaties that is not being
treaty. followed?
*If you cant remember all these methods of For example, the president is the head of state. In our
interpretation, then atleast try to memorize Art 31, constitutional law, the president ratifies the treaty and such
because that is the most fundamental method of ratification is subject to the concurrence of the senate. What
interpretation* if that is not the concern, will that invalidate the concern of
the Philippines?
We interpret the treaty in
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|Selfless Notes|
Under our domestic law, who may be authorized to express (Classmate) A law enacted by congress or the constitution
our consent to be bound? Under Executive Order 459? itself.
President. If its not the President, Secretary of Foreign
(sir) What is an example of an internal law that isnt of
Affairs.
fundamental importance? Can the president delegate its
Art 7 of VCLT, the head of state, head of government and authority to represent the Philippines in treaty signing? Yes.
ministers of foreign affairs have implied powers to represent How will the president do it? Other than the Department of
the state in all stages of treaty convention. It no longer Foreign Affairs Secretary, any other official may be
requires full powers. However, if there is a domestic law authorized?
requiring further authorization and that is not being followed.
(Classmate) Its said in the EO it could be the secretary of
Let us assume in our domestic law, before the president can
foreign affairs, head of the league of United Nations,
ratify a treaty, the president must have been authorized by
representatives accredited to the Philippine international
congress through a resolution and that has not been followed
conference and there must be an issuance of full powers.
by the president. What then will be the effect of refusal on
the part of the president to comply with the certain If youre the president, the head of state of the government
constitutional requirement? and secretary of foreign affairs, the full powers is implied, so
theres no issue about it. The issue will be if he is not among
Art. 46 (1): A State may not invoke the fact that its
the three, lets say head of diplomatic mission. So the only
consent to be bound by a treaty has been expressed
way that he can be authorized for a particular purpose, other
in violation of a provision of its internal law regarding
than adoption of the text of treaty. Because under Art 7(2)
competence to conclude treaties as invalidating its
implied authority. What is implied for heads of diplomatic
consent unless that violation was manifest and
mission and heads of special mission, only for the adoption of
concerned a rule of its internal law of fundamental
the text of the treaty. All other authority, lets say, expression
importance.
of consent to be bound. I sign na siya, and expression to be
bound ang signature. Kinahanglan pa ug full powers. In order
(Classmate) Generally, the State cannot say that their to validly represent the Philippines, in other words, lets take
consent was violated by the act of its official, except when to look at our consti. Is there anything in the constitution that
the violation of official is clearly manifest or that it violated provides a rule as to when our head of diplomatic mission be
an internal law of fundamental importance. authorized to sign in behalf of the Philippines? None. Its
provided for by EO.
(Sir) Unless that violation was manifest AND concerned a rule
of its internal law of fundamental importance. How do you What we see in the constitution is competence to
interpret internal law of fundamental importance? conclude treaties
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|Selfless Notes|
1) Implied power of president as executive to represent the In Cameron vs Nigeria, that was the bone of contention of
Philippines and therefore to ratify treaty Nigeria when it argued were not bound by the treaty
because it so happens that the head of State of Nigeria under
2) Senates authority to concur with the ratification. All other
their internal law cannot express the consent to be bound of
principles of treaty making representation, you will not see
Nigeria until and unless such signature of the head of state is
that in the constitution but you will see that in executive
to be confirmed or approved by a military tribunal. Thats in
orders. Like EO 459.
their law. The ICJ said it may be a internal law of fundamental
In international law, they didnt say that internal law of importance because its your constitution, but that is not
fundamental importance refers to the constitution, but manifest.
authorities forward the interpretation that they should
Why? That is not in accordance with normal practice. The
pertain to a constitution or fundamental law the very least.
normal practice is for the head of state to be authorized in all
So, if in a particular state the head of state is required to get
stages. Therefore, all other states cant be bound by such
the authorization of congress, youll notice that is not a
internal rules.
normal practice.
Why? Theres nothing in international law to compel all states
A violation is manifest if it would be objectively evident in a
to take cognizance of the internal laws of the other states. Di
State conducting itself in the matter, in accordance with
ka kaiongon nga wala ninyo basaha ang amo constitution,
normal practice and good faith. Its not a normal practice that
mao an amo requirement) A state is not bound to have full
a president will have to get an authorization from congress to
knowledge and understanding of the laws of other states. At
be able to sign a treaty, thats not normal. In fact, when you
the end of the day, international law exists primarily to make
look at Art. 7, implied ang authorization, in all stages.
sure that there will be international peace and security.
Assume that there is such a requirement and its not being
Friendly relations is the objective of the United Nations
followed, will that invalidated the consent of the state? There
Charter for Laws, if you dont have such a provision, that will
are 2 requirements to invalidate because generally a state
spawn a lot of controversies.
may not invalidate A State may not invoke the fact that its
consent to be bound by a treaty has been expressed in Why? A state will easily violate a treaty provision, and then
violation of a provision of its internal law regarding when the other state says, You have breached your
competence to conclude treaties as invalidating its consent obligation, then they will just invoke it as a defense, We
exception is: have not breached a treaty that is invalid, because our law
has not been observed. The only exception if its manifest
1) the violation is manifest
and of fundamental importance. In this case, all states are
2) involving law of fundamental importance. also somehow, constructively informed of such limit to such
authority example, if the authority of the ambassador, is
limited and all member states had been informed of such
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|Selfless Notes|
limit, all other states are now estopped in saying, Were not certain natural resources only for a limited purpose, say this
aware of your internal law, because they have been is for such symbolic uses but not for commercial. Lets say
informed or duly notified of the limits of the ambassador. theres a mineral found in State A that is useful in tradition
and culture of State B.
Another basis for invalidation of a defective treaty, is
unauthorized representative. Next, Ultra Vires, authorized State B: You have X Mineral there, in our culture and
but it exceeded its authority. But, as mentioned in Art 46 with tradition, we use this if we pray.
such distinction, have also been made known to the other
State A: Ok, it will not endanger our natural resources
party prior to expression of the consent, thats covered under
because the exploitation of our natural resources will not be
article 47. Another ground to invalidate a consent is error,
for commercial purposes but just to let you practice your
and there are 3 important elements, before error can be
culture and tradition.
properly invoked. Error must be pertained
The treaty has been going on for 99 years and 20 years after
1) About a fact or situation which was assumed to exist at
from execution of the treaty, it had been discovered that
the time of the conclusion of the treaty.
such minerals can cure cancer. The international
2) Formed essential basis of consent, and pharmaceutical companies of State B got interested. So from
small scale exploitation it became large scale because State
3) State has not contributed to the error this is more similar
B will now import the minerals that will be used by
to oblicon. Although the threshold must be higher here
multinational pharmaceutical companies all over the world,
because states are represented normally in the various
damaging the environment of state A.
stages in the various stages of treaty formation by several
individuals. State A can invoke that there was error because 1)the error
was about a fact meaning, this mineral the parties believed
You cannot expect that a state is just represented by one
that its actually really it cant be used for commercial
individual all throughout the treaty formation process. Lain
purposes but cultural purposes only. Pila ra man na magampo
ang representative sa adoption of the text of the treaty,
gamiton, State B ra mu consume. Which was assumed to
pagabot sa signature lain nasad. Pagratification lain na sad.
exist at the time of the conclusion of the treaty meaning it
How will you analyze that there was error in expressing has no commercial value 2) It formed essential basis of
consent to be bound? Nga lain lain man na ug consent State A would not have allowed State B to exploit
representatives? Very difficult, right? Unlike in 1-on-1 the natural resources had it known that it has actually
contract drafting, kamo jud 2 ang involved. So the threshold commercial value 3) State A must not have contributed to
is higher. For example if the treaty says, okay, State A, the error at the time it was executed, it could have not
authorizes state B, for example to exploit State As natural been discovered by any scientific means that it can cure
resources in each territory on the basis that state B will use cancer.
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What happened in the temple case? Because this case the erga omnes norm is a promotion of a jus cogens norm.
illustrated the 3rd element, the state has not contributed to So, if genocide is jus cogens, prohibiting genocide is erga
the error. If theres an error, the state invoking it must not omnes. Prosecuting those who commit genocide is erga
have contributed to the error. It will bar any claim of omnes, meaning duty. If a treaty contravenes a jus cogens
invalidation of that treaty. norm it is also invalidated.
So you have this case between Thailand and Cambodia A treaty may also be terminated. There are many ways in
between the issue of who owns the temple of Preah. The way which a party may get out of that treaty. 1) withdrawal or
to settle this is to look at the maps prepared by the denunciation and it can be done either pursuant to a treaty, if
committee, some sort or commission troop but with the there is an exit provision or withdrawal or denunciation may
participation of Thailand. Now, when it was found out that on be done even without exit provision in two instances where it
the basis of the maps prepared by the participation of is the intention of the parties or nature of the treaty.
Thailand the temple would actually pertain to Cambodia.
Other than that, theres also invalidation of the treaty. Those
Thailand invoked that Camboadia cant use that map
are the grounds for invalidation of defective treaties.
because there was error in the preparation of the map and
However, where the treaty is not defective, invalidation will
therefore when we entered into some of an agreement, it
not apply, what may apply is the regime of termination of
vitiated our consent because we didnt know that there was
treaties.
error in the map, so the map shouldnt be used. The tribunal
ruled: Did you, or did you not have the participation in the Art 42 is specific, there are no other grounds for termination
preparation of the map? Thailand had a participation in the other than those enumerated in VCLT why? The
preparation, therefore, it contributed to the error. international law commission rafting the VCLT already
enumerated CIL grounds for termination of treaty. There may
You also have Fraud (Art. 49), Corruption of Representative
possibly be some other grounds o terminate a treaty but it
(Art. 50), Coercion of State by the threat or use of force (Art.
may be considered as outside of the VCLT regime and
52) not largely observed nowadays, especially coercion by
therefore, it must develop by itself as a separate CIL.
the threat to use of force is already clearly prohibited under
article 24 of the UN Charter. Definitely of course if the At present, there has been no other ground for terminating a
provision of the treaty contravenes the jus cogens norm (art. treaty yet that has been developed as a CIL outside the VCLT.
53). There are emerging but not yet confirmed. The 3 common
grounds for termination for treaty which every student of
Jus cogens has been defined as peremptory norm where
international law should master:
derogation is never allowed. What is the relationship between
erga omnes and jus cogens obligation? Obligation is erga 1) material breach (art 60) 2) impossibility of
omnes if it is the obligation of the entire community. Any performance (art 61) and 3) fundamental change of
state can perform that erga omnes duty if the performance of circumstance (art 62) *you should know this by heart*
81
|Selfless Notes|
For example in material breach, the Namibia case, the 1.) repudiation of the treaty which is not sanctioned
South West Africa case. The South Africa violated the by the VCLT
mandate of the League of Nations to promote the welfare *repudiation which are permissible:
of the people of Namebia which had been given to South countermeasures- act done by a treaty party which
Africa in trust under the mandate. Meaning, gipa may not be consistent with the provisions of the
administer. The people of South West Africa or Namibia, treaty but is essential in order for the other party
used to be a colony of Germany. When Germany left, comply with its obligations in the treaty
Namibia didnt know how to administer self-governance.
They still had to learn the government. So South Africa Gabcikovo-nagymaros:
was given the obligation to administer South West Africa
but what SWA did, it implemented a discriminatory policy Systems of locks flowing to the Danube river.
of apartheid. They discriminated the black people of Hungary and Slovakia(Czechoslovakia). Changes in
Africa. UN said, instead of promoting the welfare of the administration in both countries; social and
people of Namebia you ended up discriminating and economic. Socialist to capitalist liberal states.
thats a material breach because it was thought thats Environmental law developed during that time.
also a treaty obligation when youre granted a privilege to Hungary welcomed liberal thinking, people
administer a territory under the mandate of the League of questioned the project that there was an allegation
Nations (UN). Material breach is also discussed in that it would pollute the river. Hungary suspended
Gabcikovo-Nagymaros case, same thing with the the project and later abandoned it in 1989. Which
possibility of performance and rebus sic stantibus. lead Slovakia to implement Variant C. Variant C
however enabled Slovakia to utilize more than
XV around 80%-90% of the river. Hungary charged
Slovakia with material breach when it implemented
International law- primarily to aid in international peace and
variant C. Slovakia said cannot be charged with
security
material breach.
Treaties may be terminated on various grounds:
Elements of countermeasure:
1. Withdrawal or denunciation in accordance with the 1. Proportionality of countermeasure was not met
treaties/ Intent of the parties (80%-90% of water from the Danube river).
2. Invoking the invalidity e.g. error (Temple case 2. The countermeasure must be a response to a
Cambodia and Thailand) particular breach committed by the other party.
3. Termination of a treaty which is not defective (Must be Denying the object and purpose of the treaty
invoked when grounds of termination are clearly but is justified due to a former breach.
established)
a. Material breach - Fundamental change of circumstances
82
|Selfless Notes|
The emergence of environmental law did not from the blacks. UN called the attention of South
prevent Hungary from performing the obligation of Africa since they violated the Mandate. ICJ had
the treaty. ICJ said changes in economic, social, complete jurisdiction over the case. Sanctions were
political, and legal system would not necessarily imposed against South Africa. Actio Popularis
tantamount to a fundamental change of initiated the case. Countermeasure permitted.
circumstances. ICJ noticed that the treaty actually
* Slight breach cannot be a ground to terminate a
had a provision that allowed the parties to make
treaty
adjustments if they encountered environmental
problems.
b.) Violation of a provision which is essential to the
accomplishment of the object and purpose of the
Namibia Case:
treaty
Mandate from the League of Nations which states
that South Africa should administer Namibia and Not all violations would constitute material breach.
therefore to promote the welfare and take care of It might only constitute to slight breach but that
the people. Namibia was an emerging state; used would not entitle them to terminate the treaty. It
to be a colony of Germany. To promote the right of might only entitle the party to charge the violating
self-determination of certain peoples in particular party an internationally wrongful act.
inhabitants of colonized territories. UN issued a
resolution for the decolonization of colonized Fisheries Jurisdiction Case:
One of the main reasons why the party entered into
territories. Colonizing countries were asked to
such a treaty. Iceland violated the treaty by
respect the right of self-determination, asked them
extending their fishing area. Extend the 12 mile
to decide on their fate.
fishing area to 50 miles claiming due to the
1. To remain to the power of the state adoption of new fishing techniques. Iceland
2. To declare independent questioned the jurisdiction of the ICJ regarding the
3. To become part of another state fishing zones established since there was a
fundamental change of circumstances which was
Namibia wanted to become independent state.
the adoption of new fishing techniques. Iceland and
Namibia could not yet self-govern. Solution was to
UK both submitted themselves to the jurisdiction of
allow more civilized states to administer for the
the ICJ. Questions whether there was a radical
time being until they could self-govern. South Africa
change of the obligation that would have changed
agreed to such mandate to administer Namibia.
the jurisdiction.
South Africa committed apartheid or basically
discrimination of races. Separated white people Fundamental change elements:
83
|Selfless Notes|
1.) Change must be fundamental

*Fundamental when radical transformation of
the obligation still to be performed by the party. Q: What are the instances when it cannot be invoked?
*radical change- to perform an entirely different A: When the treaty includes boundaries and when the
obligation which is different from what was fundamental change is due to the fault by the invoking party.
contemplated from the very beginning.
Sirs discussion: The same principle in error where the
India vs. Pakistan Case: invoking state by its own conduct contributed to the
India questioned the jurisdiction of the ICAO, fundamental change.
claimed that they have suspended the treaty. The
breach concerned did not revolve around the
jurisdiction of the ICAO to hear the case. Indias Q: Is the fundamental change of circumstance an available
claims for breach did not even state as to which ground that may be invoked by a state party to definite
provisions of the treaty were being violated. treaties?
b. Impossibility of performance There are treaties that do not have specific lifetime or period
c. Fundamental change of circumstances (rebus sic and there are also treaties that have a period. Is the
stantibus) fundamental change of circumstance applicable to both?
Had been modified a bit in certain areas in the vclt
which wanted to develop rebus sic stantibus into a A: (wala gi directly ug answer ni sir but mao ni ang
progressive customary international law explanation)
XVI The international law commission in drafting the VCLT
deliberately used the phrasefundamental change of
Q: What are the other conditions or elements of fundamental circumstance instead of reibus sic stantibus because the
change of circumstance? latter started as a customary international law. In practice,
when the law of treaties were govered by purely customary
A: The circumstance that change must relate to the international law, reibus sic stantibus was the relevant
fundamental character that essentially was made basis of the doctrine, in the past, it applied to indefinite treaties only. The
consent that radically transformed the obligations previously reason was that since these treaties are short-lived they said
contemplated by the parties. Like in the fisheries jurisdiction that we should allow them to terminate on their own. Reibus
case, the obligation was to submit to the jurisdiction of the sic stantibus was applied sparringly to definite treaties. It was
ICJ and despite the change of the fishing techniques in more applicable to those treaties that are considered
Iceland, it did not affect the obligation of the parties to lifetime. It makes sense because the parties cannot be
submit to the jurisdiction of the ICJ.
84
|Selfless Notes|
compelled to comply with obligations that are essentially basis or reason for the measure it proposed under the
different than that essentially contemplated by the parties. circumstances. Next is the proposed measure or what you
intend to do, e.g. suspend or terminate. When the other
party receives the notice, you hold on your intended measure
When the international law commission codified the since it cannot be implemented right away. There is a period
customary international law, they did not put reibus sic of 3 months before any action can be done. Due process is
stantibus in the VCLT. The main reason for this is that they observed here since the other party is given the chance to
cannot allow past practices to be carried over kay state contest or explain their side. Two possible situations after
practice today may not be the same from that in the past. notice:
They were trying to observe how state practice would
develop on this regard.
1. No objection - the other party may now implement the
proposed measure
note: ang point ni sir kay applicable sa duha ang
fundamental change of circumstance kay naay treaties nga
sa early stages pa lang ang obligations sa parties have 2. Objection - measure cannot be implemented, hence pacific
essentially changed and they cannot be compelled to comply means must be availed of to settle the disputes during a 12
with those obligations essentially different from those months period (i.e. arbitration, good office, negotiation,
contemplated upon. conciliation, mediation, etc.). If not settled after 12 months,
the parties can go to ICJ for litigation or submit the case to an
arbitral tribunal. The difference between ICJ or regular
Q: Is there a required procedure to terminate or suspend a procedure and arbitration is that the parties do not have a
treaty? choice regarding the tribunal who will decide whereas in an
arbitration, by mutual consent, the parties can choose who
will decide. It is said that there is more legitimacy in
A: Take note that the party invoking the ground to terminate arbitration than in litigation because the parties are expected
the treaty cannot unilaterally consider the treaty as having to respect the judgment rendered because the arbitrator is
been ended. being chosen by both parties.
There are several important principles when it comes to
termination like the doctrine of operative fact - which means
Sirs discussion: Instrument must be in writing and must be that acts done pursuant to a treaty that has been terminated
duly signed by a duly authorized representative officer under will still be given legal effects or still have to be respected.
the domestic law of the state. The notice should include the
85
|Selfless Notes|
For example, in the course of the treaty, there are properties

transferred to the other party through the enforcement of a
treaty provision. It does not mean nga tungod nga na
terminate na ang treaty, imung kwaon ang property because
that had been performed by the parties pursuant to a treaty
that was then enforceable and legal for all intents and
purposes.
The termination of treaties will still have to observe
diplomatic immunities and privileges because these are
based on customary international law.
86

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PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH.

observe international law is that it is a reciprocal

Were looking the problem of enforcement, yet we are looking II

So from state to people. So we started veering away from

individuals. C: when it comes to persons, they dont have legal

So the approach would be:

1922-1946 -Permanent Court of International Justice

Now, lets talk about equity, it is a General Principle of Law,

norm from which no derogation is permitted and which can

lex specialis derogate legi generali special prevails over VIII

Front Door through incorporation. practices on detention, arrest, investigation. If there

2. For the purposes of paragraph 1 :

Other basis of distinction: OF THE OBLIGATION Why?

So, there is an instrument that will help us understand better

States A,B,C,D and E entered into a treaty. The treaty

OR States A,B,C and E as among themselves but as to

the treaty obligation. Does it suggest therefore that

The opposite of intertemporality of law theory is to treat and 1) good faith

1.) Change must be fundamental

For example, in the course of the treaty, there are properties

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