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State practice

Acts of individuals acting as agents authorized by their states

Two characteristics:

1. General (not necessarily universal) – number of states observing the

practice. Majority. Does not have to be universal. Good number of states.

Minority? Yes. If general within that region.

2. Consistent (not necessarily uniform) – repeated. Majority of times.

Nicaragua v US 1986

Opinio juris – a conviction that a certain form of action is required or mandatory. Not bemere
convenience, or comity

How do we prove? A particular action to determine whether it was done out of a belief that it was an
obligation. Or show that a failure to act is a result of a reaction.

Look at judicial decisions analyzing state practice.

Look at the works of highly qualified publicist – Magallona, Bernas?

International agreement

-establishing rules expressly recognized by contesting states

-create law for the states parties thereto

-may led to the certion of customary international law ehen such agreements are intended for
adherence by states general and are in fact widely accepted

1. Between states
a. Verbal – e.g. 2 presidents, 2 kings
b. Written –
i. Governed by law on treaties (Vienna convention only covers written treaties)
2 types of international agreement
1. Treaties – in PIL, intl agreement in the generic sense. In the Philippine legal
system, we refer to TREATY in its specific sense (written, those ratified by
the president with the concurrence of congress. If ratified by the president
only, it is called executive agreement.)
2. International agreement

Between states and international organizations

N.B.: specify which Vienna convention (b/w states, b/w state an intl org)

There are international agreements between State and a non-international organizations (e.g. foreign

The test: what law governs. If what governs is national law, it is not an international agreement.

International agreement is one way that rules become binding.

C. General principles of law*

1. good faith

2. unjust enrichment

3. responsibility of wrongful act

4. duty to make reparations

5. estoppel

*may be invoked even there is no intl agreement, no custom, no opinion juris

Note: they may be invoked as supplementary (merely suppletory)

How re binding rules created?

SOURCES OF LAW: Three types of process by which law become binding

Process by which we create general principles of law

Is there a hierarchy of rules?

A: treaty and custom

Constitutional term in art 2 sec. 2 is different from general principles of international law (it refers to
customary law) – GAPIL

Between treaty and custom, is there a hierarchy?

Some argue that treaties are more binding but theoretically, they are of the same weight.
Exception: there is a certain type of customary

1. JUS COGENS – (Vienna convention on the law on treaties between state) – type of
customary rule that is superior to treaties

No derogation is allowed. E.g. PH and IND cannot enter into an agreement allowing
genocide because protection of human rights is peremptory.

2. When a treaty is more specific

3. More recent in terms of time

What will happen if they conflict with one another?

Resolve by:

1. Looking at the type of rules.

a. Is it jus cogens? Customary? General principle?
i. Type, manner, source which the rule went through
ii. Terms -
iii. Timing - which is more recent?

Custom and treaty ay coexist.

Is positive result a basis to make a rule binding?


It is binding if it went thorugh the processes.

What were the sources Nicaragua invoking? 1. Treaty

Is it possible for one act to violate different types of obligations? YES! Example in PH law: B.P. 22

Doctrine (Nicaragua v US): Customary rules have independent basis of existence. Not mutually exclusive.

A treaty may provide for a dispute mechanism.

Customary rules, ICJ.

Formal sources:

Agreed upon or accepted processes of creating rules

Creation of PIL rules through “formal sources”:

-treaty ryle-making process (intentionally created)

-customary rule-making process (result of state practice with opinion juris)

-general lgal principle making process (looking at major national legal systems and deriving what are
common principles)



Or look state practice in case of customary rules.

Existence and content of a PIL rule determined through materials (called “material sources”):
-principla means (e.g. text of treaty, state practice)

-subsidiary means (e.g. judicial decisions, teachings of publicists)

Creation of rules is not unique in the international law system.

Memorize. 38

101, 102, art 2 sec 2 consti

Art 8 sec 5 power of judiciary

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