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Public International Law (Atty.

Daryl Largo Discussion based on his syllabus) 1


402 (A.Y. 2017-2018)

Public International Law killing a non-combatant will not be considered an
international crime;
Note: Atty. DBL’s method of discussion is to discuss the topic
based on the outline while sometimes straying away and international- between 2 or more state;
discussing some related topics that may be discussed further in non-international- between regular forces of state and
the next topics. So, bear with these discussion notes if it may another organized group within the same state. It must be
discuss “strays” to the main heading. Thank you! an organized group.

Rubric for Graded Oral Recitations: Remember, it is not international if there is no third state
30% Ability to Comprehend the Question involved or another state involved EXCEPT in the case of
30% Ability to Spot Legal/ Factual Issues an organized armed group exercising the right to self-
30% Ability to apply the relevant law and precepts organization. An organized armed group which is
10% Communication Skills recognized and fighting, it may be called a national
liberation movement. A national liberation movement is a
TOPIC A (INTRODUCTION) group exercising the right to self-organization

Public International Law is an evolving concept (Meaning of What is a high contracting party to the Geneva convention?
International Law) A party to an armed conflict that is required or who is required to
observe the rules of war. If a regular armed force captures a
What evidence can you offer to prove this proposition? member of a national liberation movement, the member may only
Look at the definition itself. In Brierly’s traditional definition, be treated as a prisoner of war and not an ordinary criminal. In that
international law was defined as the body of rules and principles of context, private individuals may be considered subject of
action which are binding upon civilized states in their relations with international law.
one another. Then, International law governed only states or
International law was viewed to govern states alone (international What is another example of individuals who may be considered
law was regarded as state-centered). When you speak of actors of subjects of international law?
international law, they were only referring to state actors. Refugees. They are persons of one state who may be subject to
persecution by reason of race, religion, ethnicity. If that happens,
In Hackworth’s modern definition, it is the branch of public law as part of the reaction of any human being, they would leave the
which regulated the relations of states and other entities which country. If they leave the country and are waiting to be welcomed
have been granted an international personality. to the state, they are called asylum seekers. If the State agrees
that they are refugees, they may be accepted. The moment the
However, in Section 101, Restatement (Third), American Law refugee is accepted; it gives rise to the obligation not to return the
Institute of the Foreign Relations Law of the United States refugee to his state.
(post-modern definition), international law consists of rules and
principles of general application dealing with the conduct of states How is that principle in the Refugee Law (principle not to return the
and of international organizations and with their relations inter se, refugee to his home state)?
as well as with some of their relations with persons, whether natural Principle of non-refoulement
or juridical. This definition now includes not only states but
international organizations and even individuals. Nature of PIL

Can individuals be subjects of international law? Why is international law considered a horizontal legal system?
Yes, but only under certain conditions. For example, when they It is horizontal because unlike the command theory of John Austin
exercise their right to self-determination. It is a right which has for example, we learned in Philo of law, unlike in a positivist
already ripened into a customary norm and can be exercised perspective wherein the law is imposed by a higher sovereign, PIL
against states. It may happen that the State where the minority is more on consensus based rather than command. That is what
belongs tends to disregard the unique culture. As a result, this Akehurst mentioned in his book. This is based more on consensus
particular state or government will only pass one set of laws, one agreed upon by states rather than imposed upon states
set of legal system, one set of policy and disregarding the unique
culture of these minority groups. It may also happen in times of Basically, it operates without a higher political authority imposing
armed conflict in the application of the Laws of War (even when such.
the armed conflict only involves the state itself against its own
nationals in their pursuit of their right to self-determination). This Why do you think even in the formulation of PIL, it is considered
opens the doors to the Internationalization of Human Rights. problematic?
However, the state may also deny this right to self-determination, It is because the states are forced, they constantly pursue their
upholding their own right to territorial integrity. This right to own interest so it could be that if the law operates against them or
territorial integrity is the right of any state to maintain integrity. if it is disadvantageous they may not concede to it. In the case of
states trying to come up with an international rule, the problem if it
What are the two kinds of armed conflict? is based on convention would be precisely the disagreement
1. International armed conflict—apply the rules of war; between states
when a crime is committed, it is considered an
international crime (e.g. if a combatant kills a non- Don’t we have for example the UN? Does it not serve as the higher
combatant, it will amount to a crime of murder. However, political authority?
since it is in the international armed conflict, it is No. It is an international organization that is composed of different
considered an international crime and the jurisdiction is states wherein they come up with convention and agreements to
with the international court) implement and enforce rules and procedures to govern the
relationship of the states. But it doesn’t serve as higher authority,
2. Non-international armed conflict—if the same act of it is merely an organization that comprise of the states that agree

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with each other. - 2 elements:
1. objective element (general state practice)
Are there any international laws that are not formed by agreement 2. subjective element (opinion juris sive
or through convention? necessitates)
Yes, there is customary international law. We will talk about CIL (2) Through agreement by the states
more later. - PIL may be enacted by agreement of a group of
states. It may be considered a positive law by the
Is PIL a law? contracting parties
It depends on the POV you take. - Through conventions or treaties

According to Austin’s Command Theory, it cannot be a law as there Basically, it may be by convention, treaties or practice.
is no higher authority which imposes penalties and judgments in
case of infractions. There is also no higher legislature which What about opinions of jurists and decisions of courts?
commands and no policy-making body imposing rules. Basically, Yes, such as the ICJ but check the sources of law as these are
in international law, there is an absence of the 3 main branches of subsidiary sources.
government.
How is PIL enforced?
However, according to Akehurst, it is a law. At some point, states Generally, it is difficult to enforce PIL since there is no higher
are compelled to behave in a certain manner and it is in this executive authority to enforce this. No international police.
manner, through observance, that international law may be
considered a law. It is then a law between states that are compelled (1) Through the Doctrine of Self-help (on retorsion and
to obey it by reason of being a party to a treaty or a convention or reprisals)
because the norm is in the nature of a jus cogens norm.
These are called countermeasures. Retorsion is a
Why do sovereign states obey international law? lawful act which is designed to injure the wrongdoing
States are understood as organisms and therefore, need to state. Reprisal is an act which would normally be illegal
survive. Various reasons include: but are rendered legal by a prior illegal act committed by
1. Self-preservation (International community perceives the other state
compliance of IL on the basis of natural law. “If I attack
your territory, it is possible that you will retaliate so I will The use of force is generally not valid but in some
not do such”) instances, it may be justified.

2. Self-interest (“It is of my best interest that if I obey the Note: Contemporary international law does not use
terms and conditions of the treaty, by the time that I will “retorsion or reprisal” anymore. We now call it
have to request, I can expect compliance from your end.” countermeasures. There is an emphasis on the
It is of the best interest of the state to comply IL. The state prohibition of the use of force and even the threat of use
can have benefits in trade, investment, or political in of force. IOW, we still have to learn about retorsion and
exchange) reprisal but we have to recognize that in contemporary
international law, these are now called countermeasures
3. Acculturation (it is part of their culture to easily obey
these norms) The difference between reprisal and self-defense is
that self-defense is when there is a state which declares
4. Legitimacy (State obey a particular norm because it is war against another and the recipient of such declaration
just, right, reasonable, or pragmatic. Even if we talk about engages in defensive war. In reprisal, there is no
certain policies in our company, there are rules that we declaration of war.
easily obey. It is not because we are compelled to obey it
but sometimes, we obey the law because we feel that it is History of International Law
a good law or that it is a sensible law)
Hugo Grotius
5. Positivist theory (At least in so far as conventions and He is the “Father of PIL”. He published “On The Law of War and
treaties are concerned, states obey them because of Peace”. In 1609, he also wrote “Mare Liberum” (The freedom of
consent. This is otherwise called the consent based the seas). He laid the foundations of international law based on
theory. A contracting party to a treaty of course is bound natural law. He wrote an important document that largely
to obey because it had already consented to the terms influenced what is known now as UNCLOS. He conceptualized that
and conditions) there must be a limit to what can be demarcated to entities but
there must also be an area that is “free-for-all”.
6. Some forms of peaceful enforcement of PIL:
a. Voluntary compliance 1648- Treaty of Westphalia
b. Force of public opinion
c. Self-help What is the Treaty of Westphalia and its contributions to
d. Treaty-based enforcement international law?
Among the important provisions in the treaty were the provisions
How is PIL formed? recognizing sovereignty of each states, it was then called
(1) Through state practice monopolization of power within a state, meaning in a given
- PIL may come into existence as a result of practice territory, there should only be one sovereign power so in effect any
of states couple with the belief that it is practiced act by third states that would affect the exercise of political power
because the norm or conduct is binding upon in territory of another would be an intervention or a violation of the
states sovereignty of that state. It also gave rise to the principle of co-

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equality of states, precisely no state can interfere or intervene with Public International Law vs. Private International Law
the affairs of the other because of the principle of co-equality. So
this treaty of Westphalia introduced us to the concept of How are they different?
sovereignty of states and co-equality of states. Public International Law governs the activities of states and other
international persons/ entities in relation to each other (what their
1789- Birth of the term “international law” duties, rights and obligations are).
It was Jeremy Bentham who coined the term “international law”
replacing the old, classical term “law of nations”. Private International Law resolves “conflict of laws”. It does not
govern relationships between states but rather it governs what type
1863- Lieber Code of law will be applied to a particular legal controversy (when there
It was created by Abraham Lincoln. It has been considered as the is a foreign entity involved— “which law is applicable in a particular
document that governs the conduct of war. This was because of controversy?”)
the Civil War in the US where the southerners wanted to separate
from the union (which resulted to Southern vs Northeren states and How is it possible that a court resolves a controversy using foreign
so the civil war erupted). Lincoln ordered his friend, a German laws?
National who had mastered military law to draft a code that will Generally, when activities of individuals, corporations and other
govern the conduct of war. It was called the Lieber Code, from the private entities when they cross national borders and in
author’s last name, Lieber. It contributed a lot to international controversies involving foreign element. The moment a foreign law
humanitarian law on the rules of the conduct of war. is involved; chances are it is private international law.

1899- Permanent Court of Arbitration Subjects vs. Objects of International Law

1907- Hague and Geneva Conventions (4 Geneva Conventions in What are subjects of international law?
1949) Those that enjoy international legal personality and being capable
of possessing international rights and duties, including the right to
1922-1946- Permanent of Court of International Justice (PCIJ) of bring international claims.
the League of Nations, then replaced by the International Court of
Justice (ICJ) of the UN Difference of subjects and objects of international law
Subject is the bearer of rights with the power to maintain and
Relevance of the PCIJ pursue such rights. Object is not the bearer of rights nor can pursue
PCIJ decisions are still found in the ICJ website. The PCIJ was claims. The difference lies in international legal personality (see
short lived. It was then replaced by the ICJ which of course was ICJ Advisory Opinion)
the court or tribunal under the auspices of the UN which of course
replaced the league of nations. What are the remedies of objects of international law?
Aggrieved parties may go to their respective government and
1948- UN created the international law commission or the ILC address the issue for the state itself to espouse its claim since it is
(tasked to codify international law) only states who can appear before the ICJ. This is called “Espousal
of Claim” (“Diplomatic Protection” is the term more accepted in
What is the contribution of the international law commission? international law).
The international law commission is a specialized body of the UN
tasked to codify international law. For example, the UN initiates a What is Diplomatic Protection?
convention, the one good example of this is the Vienna Convention It is when a state lodges a complaint because of an injury suffered
on the law of treaties or the VLCT of 1969 which entered into force by its national in the territory of the other state. The state must
in 1980 upon the establishment of a convention, you will note that establish nationality (as taken in PIL)
before it had been established, before ratified and signed by states
that undergone deliberations, discussion and so there is what we What is functional protection?
call preparatory works to a particular convention and normally the It is when an international organization lodges a complaint. There
international law commission will be asked to prepare the evidence is no need to establish nationality. The reason is it cannot perform
of this preparatory works and therefore the interpretation of the certain functions or it cannot function effectively to make the
International Law commission would be very helpful in interpreting organization function without giving it personality.
treaties. The observation therefore of the international law
commission would be very helpful in interpreting conventions or Just and Fair Treatment of Aliens
treaties It is the minimum standard required. So the moment a foreigner is
admitted in a foreign soil, that state is required by CIL to afford the
19th, 20th centuries - the increase in global trade, armed conflict, foreigner a just and fair treatment. Treating the alien with
environmental deterioration on a worldwide scale, awareness of discrimination on the basis of nationality without any justification
human rights violations, rapid and vast increases in international becomes a violation of this right of the state to which the person
transportation and a boom in global communications saw the discriminated is a national of. It becomes an “internationally
importance and usefulness of PIL, which at this time began to wrongful conduct”. This presupposes responsibility on the part of
establish new and modern areas in international law (trade and the wrongful state. But, because the individual herein is just an
investment, technology, human rights, environment, space, etc.) object of this claim, he will have to go to his state to espouse his
claim in the process of diplomatic protection.
The 19th and the 20th centuries of course saw the emergence of
new areas in PIL why? This was the beginning of modernization, Reparation for Injuries Case (ICJ Advisory Opinion, 1949)
globalization and so therefore activities of men got complicated as Note: ICJ can give advisory opinions unlike our SC. The tripartite
early as 19th century so there was a need also to acknowledge system of government is not present in international law.
that there should be some norms governing this emerging areas in Therefore, it is okay for the ICJ to give advisory opinions. In fact, it
the activities of states.

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is clothed with such power by the very statute that created it. It states conduct themselves when some states are engaged in war
does not violate the ‘separation of powers”. and they are not involved in it; the state will declare that it is a
neutral state and duties will be imposed upon the belligerent state
What happened in the case? and rights afforded to the neutral state
The Chief UN Truce Negotiator Count Bernadotte, a Swedish
national, was killed on September 17, 1948 in Jerusalem. The Difference between neutral state and neutralized state
assassins were allegedly a gang of terrorists. Israel was not a Neutral state—a sovereign state which officially declares itself to
member of the UN at the time of the incident. be neutral towards the belligerents in an ongoing conflict (governed
by Law of Neutrality)
The issue was WON UN had legal personality to bring a claim with
the view of obtaining reparations in respect to the damage caused Neutralized state—state whose independence, political existence
to itself, to the victim or persons entitled through the victim or WON and integrity are for all future time guaranteed by treaty, on
it is just exclusive to Sweden with regard to its own national. condition that such state binds itself not to engage in war (e.g.
Belgium, Switzerland during WWII)
The ICJ said The United Nations, is at present, the supreme type
of international organization, and it could not carry out the intention
of the founders if it as devoid of international personality. While it
is conceded that original international legal personality belongs to
the main actors of international law, namely states, the United
Nations has an international legal personality through the fact that
its member states, by the very fact of creating such an
organization, must have transferred some of their powers over the
organization (derivative international legal personality). The claim
brought by UN is not based upon the nationality of the victim but
rather upon his status as an agent of the Organization.

What did the ICJ say about International Legal Personality?


International Legal Personality is the ability to possess
international rights and duties and the power to sustain these
rights by bringing international claims.

What cases may the ICJ decide?


The ICJ can decide contentious cases (a claim by a state against
another state) and advisory opinion cases (the court will render
an opinion regarding a specific case presented to it).

Regimes or Divisions of PIL

Three regimes/Divisions of PIL


1. Laws of Peace
2. Laws of War
3. Laws of Neutrality

The Laws of Peace


Law of Treaties
Law of the Sea
Diplomatic Relations, etc.

Killing during peace is not permitted. However, killing during times


of war may be justifiable (e.g. killing a combatant during war, there
is no crime but killing a civilian during war, there is a crime).

Whenever diplomatic relations is terminated, members of the


diplomatic mission must be given sufficient time to leave the host
country and go back to their home state safely. They must be given
safe conduct.

The Laws of War


Jus ad Bellum (legality of engaging in war; e.g. rules whether the
use of force is permissible in entering into war)

Jus in bello (legality of the conduct of war; basically concerned with


international humanitarian law—other term for jus in bello;
regardless WON war is unlawful or not at the instance; applicable
to the civilians and belligerents)

The Law of Neutrality


Governs the conduct of states not engaged in war; how will these

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TOPIC B (SOURCES OF INTERNATIONAL LAW) are better understood as “law-determining” process. IOW for him,
primary sources are the formal sources, while the subsidiary
Sources (Formal or Material) of PIL sources are the material sources.

Formal source However, according to Shaw, there is a possibility of the


Binding source by reason of the manner or method of its overlapping of sources. The problem arises when which
creation. Formal source is also normative not merely descriptive. international law is more persuasive in an international court.
It tells you why it is binding.
Paramilitary and Military in and against Nicaragua v USA
For example, if we talk about a treaty, this may be formal or There were rebels in Nicaragua. US gave economic aid (weapons,
material. Its characteristic depends on what we are talking about. training, abetting) to the Contras who had been fighting to
If state A and state B enter into a treaty and state A is bound to overthrow the Sandinista government. The US was even accused
comply with a particular article, then the driving force here is of planting mines in the internal waters of Nicaragua which
consent. This consent is what makes the provision binding. This constitutes armed force. Nicaragua invoked Article 2(4) of the UN
was created through the process of treaty-making which Charter on the prohibition of the use of force. However, US’
presupposes consent. Remember, IL is consensual. defense was that it made a reservation when it signed the UN
Charter that it cannot be subjected to the JD of the ICJ in matters
Material source that involve multilateral treaties (UN Charter is a multilateral treaty).
For example, if we are to say that state A is bound to do this, why
would it be bound? If the answer is because state A is bound by a The ICJ said however, that despite US’ reservation, Nicaragua was
particular provision, example Article 5 then the location of this still correct in invoking the provision because it is actually invoking
obligation is the material source (perspective of where it can a CIL on the prohibition of the use of force. The US argued that CIL
be found or located) being codified as a treaty lost its character as a CIL. The ICJ
clarified that CIL never lose their character as CIL despite it being
• Art 38(1), Statute of ICJ: ICJ will decide the cases codified as a treaty by the ILC.
submitted to it applying:
- Primary Sources: Remember, for multilateral treaties, there is no such thing as “take
o International conventions it or leave it”. Sometimes, it is beneficial for a state to become a
o International custom party of the treaty even when such state objects to a particular
o General principles of law provision/s. This constitutes a “reservation” which is what the US
- Subsidiary Sources (applied only if the primary did.
sources are not available or if there is no source at
all): Recitation questions about this case:
o Judicial decisions and teachings of most Why did the US aid the Contras?
highly qualified publicists What is the title of the case?
(Judicial decisions need not always be ICJ What was the defense of the US?
decisions) What was the US’ reservation all about?
How did the ICJ rule?
Article 38(1) of the Statute of the ICJ prescribes these sources that
the ICJ may use in contentious cases. These do not become International Conventions/ Treaties
sources of PIL because the Article 38 says so. The listing in the “whether general or particular and establishing rules expressly
Article is demonstrative of what the sources of internal law really recognized by the contesting State”
are. SO, in the test, you must say “The sources of international
law are… as reflected in Article 38(1) of the Statute of the ICJ” The term “convention” includes and actually means “treaty”
NOT “According to Article 38, these are the sources of the
international law…” To be clear, the 1969 VCLT does define the word “treaty” but only
for the purpose of applying the 1969 VCLT. Meaning, for the
Is there a hierarchy in the sources of international law? Where can treaties not entered into in accordance with the VCLT of 1969, they
you find it? What is your material source? are not to be governed by the 1969 VCLT. They will instead be
No, there is no specific hierarchy. In the travaux preparatoires governed by the larger corpus of the law of treaties but not
(preparatory work) of Art. 38, it was suggested that the sources as necessarily the VCLT. The difference between the original body of
listed should indicate hierarchy of sources but it was not carried law of treaties and the VCLT is that some provisions of the VCLT
out. There was only the agreement to categorize these sources as are progressive in character, not codification of existing CIL.
either primary or subsidiary. The sources of international law are
not therefore arranged in a strict hierarchical order. IOW, when we speak of the law of treaties, we are not only referring
to the 1969 VCLT. The law of treaties will apply to treaties entered
However, while there is no hierarchy among sources, there is a into between states in writing to be governed by international law
consensus among states, that of these sources, jus cogens under the VCLT and those treaties that do not fall under the
should be considered as always superior to the others. definition of the VCLT. We can speak of treaties between states,
states and International Organization and between IO themselves
What is the relevance of dividing the sources into primary and (so either between states or non-states). But, the VCLT only
subsidiary? speaks of treaties entered into between states.
Note: Do not understand primary and subsidiary as in the ordinary
sense. There are even some scholars who regard “primary” and So, the possible question in the Bar may be—What is the
“subsidiary” sources in different light. difference between the law of treaties and the VCLT? The law of
treaties can be best described as the body of rules and principles
According to Schwarzenberger, primary sources are better governing treaties in general, treaties entered into by non-states.
interpreted as “law-creating” process while the subsidiary sources But when we speak of the VCLT, we are only referring to that

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convention applicable only to treaties entered into between states So how do we assess that the practice does exist?
as defined under Article 1. There is no specific threshold in determining generality. The state
practice must be extensive and virtually uniform but recount only
Other terms: agreement, pact, understanding, protocol (it is a those practices of states whose interest is affected. We call this as
treaty but amendatory of existing treaties), charter (treaty “relevant state practice.
indicative of the creation of an IO), statute (treaty creates a court
or tribunal), act, covenant, declaration, engagement, arrangement, The problem is with opinion jure sive necessitates. How can one
accord, regulation and provision tell that this element exists?
One way of looking at opinion jure is by looking at the acts of states
What does the International commission do? through numerous declarations especially if it states about general
Codify CIL assembly resolution. It is a resolution agreed to by the member
states of the UN. If a significant number of states sign and agree
Should we treat primary sources more binding? to the general assembly resolution then it can be said that these
No, again there is no hierarchy between the sources. countries regard this specific norm or act as one that is followed
with the belief that it is legally binding.
Treaties
What is the difference between custom and usage?
Distinguish “law making treaty” from “contract treaties”. It is the element of belief that distinguishes custom and usage.
Law making treaties operate as binding rules and are similar to
statutes. It imposes the same obligations on all the parties to the A. Custom – is a practice that states believe themselves to be
treaty and seek to regulate the parties’ behavior over a long period under a legal obligation to follow. (e.g. state immunity). In
of time. The purpose is to conclude an agreement on universal other words, practice with opinio juris. 

substantive legal principle. They regulate conduct and more or less B. Usage – is a practice that states generally follow without
permanent in character. It mandates a particular form of behavior believing themselves legally bound to do so. There is only
just like that of a statute. They will create international principles or observance of the conduct out of convenience and not
norms. because they believe it is a legal obligation. (e.g. alternat
– system observed by UN members in the signing of
Contract treaties are not sources of international law but merely treaties in the observance of co-equality) In other words,
legal transactions. They resemble contracts (reciprocal). The practice without opinio juris. 

observance of the contract depends on both contracting parties
(performance of one depends on the other’s) and their willingness Asylum case
to observe. These are non conduct-forming treaties. Following an unsuccessful rebellion in Peru in 1948, an arrest
warrant was issued for one of the leaders of the rebellion (Haya de
Custom La Torre), a Peruvian national. He sought and was granted asylum
by Columbia in its Peruvian Embassy. Colombia sought, but Peru
Custom refused, to provide a “safe conduct” for Haya de La Torre from the
Article 38(1) ICJ Statute: “as evidence of a general practice country.
accepted as law”
Colombia requested the ICJ to rule that it (Colombia) as the state
Section 102, Restatement (Third): “CIL results from a general and granting asylum was the country competent to characterize the
consistent practice of states followed by them from a sense of legal offense as political for purposes of asylum. Colombia based its
obligation” submission on treaty and “American international law in general”
or regional or local custom peculiar to Latin American states.
Why is it called objective element?
It is something we can assess objectively through consistent state What is the name of the Peruvian national?
practice. So basically, this is easy to determine that state practice Haya dela Torre
does exist because it can be shown overtly through evidence.
Did Haya go to Colombia?
What is your understanding of subjective element? No, only the Embassy of Colombia in Peru
It is the mental evaluation or behavior of the state that they have to
follow such with the belief that it is legally binding. This is more How relevant is this case in the principle of Customary law?
difficult to find evidence for since it is a mental evaluation. The burden of proof lies with the party alleging the existence of the
custom. It must demonstrate that the custom relied upon was
Paquete Habana Case established in such a manner so as to become binding on the other
There was the US-Spain war. Fishing vessels that were unarmed party. An alleged regional custom demands greater uniformity in
were captured by the US as prizes of war. The fishing vessels were practice than a general custom.
just out there purely fishing which is regarded as a pure
commercial act. There was no domestic law in the US that There is no requirement of universality but there is such a
recognized the norm that fishing vessels are exempt from being requirement of uniformity. The level of uniformity will vary
captured as prizes of war. Apparently, however, US is adopting the depending on the nature of international law whether it is universal
incorporation clause. The Court found CIL truly exempting these or regional.
fishing vessels from being captured, as evidenced by their
consistent state practice. In this case, state practice was evidenced If it is regional customary international law, a higher threshold of
by previous treaties, and official acts made by the US and other uniformity is required in order to convince a tribunal that there
states in relation to capturing of prizes of war (Note: For Recits, exists such customary international law. There is no formula on
name the evidence of state practice). All of this evidence point to how much greater the threshold is required. It cannot be quantified.
official acts that evidence this CIL. It all depends on the circumstances of the case.

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Germany argued back that such principle cannot be a CIL in
What was the issue about? such a short period of time (1958-1964)
The problem is this, Colombia granted asylum because according
to them the offense that Dela Torre committed was political and Issue: Is “long period of practice” relevant and important in
therefore the grant of asylum was appropriate. It was contested by determining the formation of customary international law? May CIL
Peru saying that it was not political and the crimes committed by be formed in a short period of time? Is there such a norm as “instant
Dela Torre were common crimes. customary law”?

It is important to note that a crime is whether common or political BASICALLY, how do we delimit continental shelves because we
crime because we want to know if the grant of asylum was cannot have overlapping shelves? This involves the application of
appropriately effected. Because, if the crime was a mere common (1) equidistant principle and the (2) equitable delimitation rule, that
crime, then the grant of asylum was improper and the state may were prevailing at that time.
not respect such.
Held: The equidistant principle is found in the 1958 Geneva
BASICALLY, the main issue is which state has the competence to Convention. This was the contention—that the principle cannot
determine whether the offense is indeed a political offense—the have risen to the level of CIL since the passage of time when it was
state granting asylum or the other state allegedly politically put into force was too short to create such.
prosecuting the one seeking asylum. (In this case, there was an
assertion of a regional custom in Latin Americas by Colombia that ICJ said short passage of time is not necessarily a bar to the
it is the competent state to determine) formation of customary international law. What is controlling is that
the state practice, including that of states whose interests are
Advisory Opinion on the Legality of the Threat or Use of Nuclear specially affected, must be extensive (requirement of generality)
Weapons Case (1996) and virtually uniform (requirement of uniformity) with regard to the
ICJ said that the General Assembly resolutions may show the provision in such a way as to show a general recognition that it is
formation of opinio juris. Although not legally binding, they may a binding law.
have normative value. 

Instant CIL or Accelerated CIL
Lotus Doctrine (customary international law and how to relate it to Akehurst calls this “INSTANT CIL” or others call it
sovereignty) A state is barred to do an act only when it is so “ACCELERATED CIL”. A short period of time will not necessarily
prohibited under a treaty or customary international law because bar the formation of CIL. Do not think CIL can always exist within
restriction to state sovereignty is not presumed 
 a short period of time. Sometimes, the period will be relevant in
determining how general the practice may have been, how
What is the normative value of the UN General Assembly consistent the practice has been. The longer the period, the more
resolutions? it can establish opinion juris.
They not binding because these are just resolutions. These are
however, reflective of the opinion juris. While not legally binding, IOW, this case teaches us that the element of state practice
they have normative value, that is the establishment or proving of presupposes that this state practice that we consider in
opinion juris. Imagine, these are the opinions of the member-states determining whether that is CIL must refer to what is known as
of the UN regarding a specific issue or statement. That is why we “relevant state practice”. This means that if we are to talk about
have the voting. It is evidencing their mental evaluation of the whether there is a repeated, general, consistent state practice, we
norm. do not count the practices of all states. We only count and assess
the practices of those states whose interests are especially
Guide Questions in understanding CIL: (answer at home) affected. Only in those state practice we can derive whether there
- What constitutes state practice? 
 is consistency, generality, uniformity of the practice.
- How much practice is required? (duration, consistency,
Relevant state practice doctrine
repetition, 
and generality requirements) 

Practice of those states whose interests are specially affected. In
- What is the valur of a state’s (1) abstention or failure to protest
counting state practice, we do not necessarily include all the states.
against a norm and (2) protest against a norm? We only count the so-called relevant state practice.
- Are dissenting and non-participating States bound by custom?

- What evidence is required for opinio juris? 
 State practice need not be universal or unanimous. It can be
- May treaties be invoked as evidence of customary law? May general, but it must have wide acceptance of states involved in the
they create customary law? 
 activity. We only count the practices of those states whose
- Is there a normative hierarchy in customary law? 
 interests are specially affected and this is where we look at whether
- Would declarations of law adopted by the UN G.A. constitute the practice is extensive and virtually uniform. For example, if we

presumptive evidence of accepted international law, talk about fishing zones as regards what is the norm of states
irrespective of actual state practice? 
 regarding fishing zones, we only count those states who have
fishing zones which are those coastal states. There is no
North Sea Continental Shelf cases mathematical formula. It is always a case to case basis. No
Facts: This case involves the application of the equidistant requirement on unanimity, only extensive and virtually uniform.
principle of the delimitation of continental shelf and the equitable
delimitation rule. Equidistant rule is provided in 1958 Geneva What is the normative value of a state’s abstention on failure to
Convention on Continental Shelf. Germany argued they are not protest against a norm?
bound by it since the provision was not yet effective at that relevant The Persistent Objector Doctrine or the Persistent Dissenter Rule,
time. Relevant states were not yet parties of the 1958 Vienna if a state is not classified as a persistent objector and does not
Convention and did not yet enter into force. Netherlands and follow the norm then he is considered as violator.
Denmark contended that the principle of equidistance is a CIL.
Lotus case

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Lotus, a French steamer, and a Turkish steamer, collided on the 2. The objection must be consistent.

high seas. The Turkish steamer sank and eight Turkish sailors
died. The French officer (Monsieur Demons) on watch of the Lotus Note: It cannot be that you objected 50 years ago and the next time
was prosecuted in Turkey. French government argued that the flag you express your dissent to the norm will be 50 years after, then it
state has jurisdiction. Turkey counter- argued that the “flag state is hard to comply with the requirement of consistency. The
rule” is not exclusive and that there has been no rule of customary objection must be consistent in the same manner as the practice
international law which gave exclusive jurisdiction of the flag state. must also be consistent. 


The PICJ said that there was neither customary international law 3. The objection must be categorical, clear and equivocal dissent
nor conventional international law that prohibited the exercise of must be shown.
territorial criminal jurisdiction and so restriction to state’s
sovereignty cannot be presumed. Thus, Turkey has jurisdiction BASICALLY, take note of the elements. The element as to TIME—
since the flag state rule as insisted by France could not at that time must be prior, MANNER—must be persistent, likewise be CLEAR
be considered as CIL. In the absence of clear customary or CATEGORICAL that you are really objecting to the practice.
conventional international law, a state’s sovereignty cannot be
diminished or restrained. So, if a Turkish court insists its What is the value of the POD?
jurisdiction, it is not permitted to be prohibited to do so only if there Since it is a CIL, all states must comply because all states are
is clear customary or conventional international law prohibiting it. bound by it. Non-compliance may even mean sanctions to the non-
compliant state. However, when the state qualifies as a persistent
The counter-argument of France however was that it alleged the objector, it may not be compelled to follow the CIL.
presence of the practice of states all over the world regarding using
the flag state rule. Most states do not exercise criminal jurisdiction Anglo-Norwegian case
over offenses committed onboard of a foreign vessel. IOW, there If the two points of the mouth of the bay is 10 nautical miles or less,
is apparently a negative practice on the exercise of criminal JD for it is acceptable and considered a practice to just draw a straight
offenses committed on a foreign ship. Even against France’s line connecting the two points of the mouth and no need to indent.
contention that there was a negative practice of exercising criminal Otherwise if it is more than 10 nautical miles following the low water
jurisdiction in a foreign ship, Turkey still has JD. There was no mark, then drawing a straight line between the two points is not
evidence that states refused to exercise criminal JD over offenses allowed. In which case, the baseline should be indented.
committed onboard a foreign vessel because its non-performance
was believed to be legally binding. Therefore, France’s contention Norway felt it should be granted more than 10 nm due to its
lacked the element of opinion juris. increasing needs but UK said that Norway has to be bound by the
rule. However, ICJ noted contrary practice by other relevant states,
UNCLOS now has the rule on collision cases in the high seas. It is not all states but only those with baselines and maritime zones.
the “flag state rule” or the “nationality of the offender principle” that The ICJ also said that even assuming that this rule ripened into
are applied (as to what rule will be applied, it will depend on the customary international law, Norway has been consistently
circumstances of the case). However, during the time that this case objecting to the 10 nautical mile rule even before this rule assuming
happened (1926), there was still no rule regarding this. has ripened to a customary international law. This is the doctrine
known as persistent objector/dissenter.
What is the name of the French officer?
Monsieur Demons Fisheries Jurisdiction Case
Iceland and UK had agreed in a treaty that they will submit to the
What is the flag state rule? jurisdiction of the ICJ because of consent (either by submitting to
The flag that the vessel carries is the place of the registration of the jurisdiction or when there is an advanced consent – when
the vessel. Since, the vessel was registered in France then the stipulated in the treaty)
crime is deemed to have committed in France.
The treaty provided for the extent of fishing within the fishing zone
What is the normative value of abstention or the negative practice of Iceland. In such treaty, UK recognizes the extent of the fishing
of states regarding a certain norm? zone of Iceland, which is 12 nautical miles and Iceland wants to
Shaw discussed this topic well compared to Akehurst. He said that extend the fishing zone to 15 nautical miles.
if it is abstention or the non-performance of a state practice, it must
still comply with the element of opinio juris. Meaning the abstention The reason for the adjustment is the development of new fishing
of a norm should likewise be upon a belief that not doing so is also techniques that allowed fishermen to fish more than what was
imposed by law or that the abstention is also legally called for. expected. Iceland contends that this is something that cannot be
foreseen and hoped that the treaty could be suspended or
What is the Persistent Objector Doctrine (POD)? abandoned. When the case was brought to the ICJ, Iceland
According to ICJ the important elements to consider in this case claimed that ICJ has no jurisdiction because such treaty has been
are: terminated or at the very least suspended. It was the technique in
fishing that was considered a fundamental change, which resulted
1. The objection by the state objector/dissenter must have been to the over fishing.
done before the norm has ripened to customary international
law or at the outset. 
 Issue: Can ICJ claim jurisdiction over such case considering that
the treaty has already been suspended?
TN: Otherwise the objection can be treated as a violation of the
customary international law and in that regard there is a breach, Held: Fundamental change in circumstance must refer to the very
and so the state dissenting may still be bound by the customary object and purpose in the treaty. In this case, the obligation to be
international law. 
 undertaken in the treaty is to submit to the jurisdiction of the ICJ
cases where there is a dispute in connection to treaty.

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which is Canada. Canada is unwilling to initiate the claim and so
In the case at bar, Iceland contended that it was the technique in the company theorized that majority of the stockholders are
fishing which resulted to overfishing which was considered a Belgian nationals. The issue is whether or not Belgium can
fundamental change in circumstance. exercise diplomatic protection for and behalf of the injured
stockholders.
ICJ said that the change in the technique in fishing cannot be
considered a fundamental change of circumstance because it had The ICJ ruled that in the absence of applicable international law,
nothing to do with the obligation of the treaty, which is to submit to this is cognizance must be given to the relevant institution of
the jurisdiction of the ICJ. Thus, any change in the technique of domestic law. Otherwise the ICJ would lose touch with reality
fishing did not affect the jurisdiction of the ICJ. particularly that there are no corresponding institutions of
international law to be its stepping board as reference.
Key Principle:
Article 62 of the VCLT, relating to termination of a treaty because Recitation Questions:
of a fundamental change in circumstance (“rebus sic stantibus”). What is the name of the company? Barcelona Traction Light and
Represented a codification of existing CIL. In the case, there was, Power Company Limited
however no evidence of such “fundamental change” in the fishing
techniques that resulted to what Iceland called overfishing in the Is it a company? Yes
Icelandic coast. In any case, such fundamental change doctrine
may only affect the merits of the case, but not as to the issue of Why did the company incur losses? It issued bonds which were not
whether the ICJ will have JD over subject matter. honored due to the government regulation issued by Canada

BASICALLY, the value of this case is to know that rebus sic Why is it important to discuss why the company incurred losses?
stantibus is part of CIL, along with the principle enunciated in the Basically, Spain violated the principle of just and fair treatment
Advisory Opinion on the Use of Nuclear Weapons. thereby incurring state responsibility

General Principles Law If a foreign corporation claims that the foreign state should be
responsible, what problems do we encounter? The problem is
In the Statute, it refers to the GPL recognized by peace-loving which state should espouse the claim or exercise diplomatic
nations. In the preparatory works, the reason why there is a third protection
primary source provided is to address a dispute that neither
convention or CIL governs. Therefore, the ICJ may make use of What is the test of nationality of a foreign corporation? Where it
GPL if only to dispose of the case. was registered

“Law” can refer to both “international law” and “municipal law Does the international law require that the injury be direct? Or at
elevated as international law” (common municipal law). the very least, does international law require that there be injury?
Yes. (please look at the discussion below)
These GPL are actually principles originating from domestic
jurisdiction (e.g. estoppel, prescription, good faith, exhaustion of How was it resolved by the ICJ? Through the application of the
remedies and others) principle of distinct and separate personality. Remember, the act
of Spain was an offense not against the Belgian stockholders but
If under most domestic laws, the test of standing in court is the against the company which is registered in Canada. This principle
“direct injury” test and “personal interest test”, in international law, is domestic but the ICJ applied it nonetheless.
what is the test on locus standi (in particular, in contentious
cases)? Barcelona Traction Case Discussion
(not answered)
What is espousal of claim again?
Barcelona Traction Case Generic term where a claim of a citizen of a particular state is
Facts: Barcelona Traction Light and Power Company Limited is a elevated to the international level where an individual will not have
corporation doing business in Spain but was registered in Canada. legal standing.
It got bankrupt because it issued some bonds when under its
finances it shouldn’t have done so. It was forced to pay off some 2 Elements before a state can exercise this diplomatic protection:
bonds which resulted to alleged bankruptcy. (It has a business in 1. Prior exhaustion of local remedies (to ensure that all effort
Spain and in the course of its usual business, it issued bonds. The has been done to the resolution of the issue in the domestic
only way to recover from these bonds would be for these bonds to level)
be honored. However, for some reason and because of 2. Effective nationality link
government regulations by Spain, these bonds were not honored
which according to Barcelona Traction, contributed to its Principle of Just and Fair Treatment (in relation to the case)
bankruptcy) Now, remember the international law principle of Just and Fair
Treatment. The moment a foreign national whether natural or
There was a cause of action against Spain because it was an act juridical is lawfully accepted in the territory of a particular state, the
of the government of Spain but the problem is when it comes to state is duty-bound under international law to give that foreign
corporation when we apply nationality principle as one way to national fair and just treatment. It cannot discriminate against a
exercise diplomatic protection, the state applying for diplomatic foreign national and issue regulations against a foreign national but
protection or the supposed victim which breached the international favoring its own citizens without reasonable justification for doing
law must be a national of the state which will exercise diplomatic so. For example, political rights are not to be enjoyed by foreigners
protection. because it involves rights that have something to do with the citizen
and his relationship with the state. This is valid.
Nationality therefore of this corporation is the place of registration

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That is why in the case of Barcelona Traction, due process for manifested its intent to annex Southwest Africa and then
example should be afforded to foreign nationals in as much as it is implemented racial discrimination called the apartheid. The
afforded to the state’s citizens. The government regulation of Spain international committee saw that as a breach, a material breach to
was directed discriminately against Barcelona Traction for being a the trust reposed upon South Africa.
Canadian National, thereby committing an internationally wrongful
conduct that would engage state responsibility. In order to solve the issue as to who would take the initiative to
terminate the agreement between South Africa and UN (for and on
So, the proper action is to go to the ICJ. However, Barcelona behalf of the people of Namibia), Ethiopia and Liberia filed a case
Traction has no personality in representing a claim before the ICJ. questioning the continued “administration” of South Africa over the
It would need its state to espouse the claim and exercise diplomatic Namibian people.
protection, but Canada did not. That is why Barcelona asserted
that if Canada did not espouse their claim, they prodded Belgium Remember: If a state would have a territory in trust under the
to do so since majority of the stockholders happened to be Belgian. mandates of the UN, international law has treated that as a treaty
obligation. Therefore, any violation of the mandates of the UN
How did the ICJ dispose of the case? would be considered a breach of the treaty obligation.
A GPL was applied. The principle as that the corporation has a
distinct and separate personality from its shareholders. This On what basis would the standing of Liberia and Ethiopia be
principle is of domestic origin but it was used by the ICJ in its justified to bring the claim for the people of Namibia?
decision. Actio popularis—the action to obtain remedy by a person or a
group in the name of the general public without being or directly
The ICJ said that the alleged wrong committed by Spain was not representing the victim. At least in 1966, it was not yet recognized
really against the shareholders but it was really against the as a GPL. This GPL as invoked by Ethiopia and Liberia was not
company. Since the company has a distinct and separate recognized as such and was not applied to dispose the case in
personality, it could not be that the stockholders should have the their favor.
cause of action against Spain. IOW, Belgium was not the right
party but Canada. What is actio popularis?
In international law, it refers to the action taken by a State in the
ICJ said in international law, generally, we require injury of the name of the international community even if it is not directly the
state to have legal standing. However, there may be instances victim.
where direct injury may not be required. Those instances are
where: Recitation Questions:
(1) the right involved is towards the international What is the issue in this case of Southwest Africa, Namibia? Who
community – erga omnes suit. Had the claim of has personality to bring a claim in favor of a people who do not
Barcelona traction revolved around erga omnes norm really form a state.
then any state would have legal standing before the ICJ
and; Judicial decisions

(2) erga omnes inter partes principle—general Article 59, Statute of the ICJ
The decision of the court has no
obligation of the state towards other states, not the entire binding force, except between the parties and in respect of that
international community. This may happen in obligations particular case.
embodied in international conventions where a state
violates an obligation embodied therein which is There is no stare decisis on ICJ decisions because Art 59 provides
considered an obligation towards specific states who are that decisions of ICJ shall apply only between the parties and only
parties to the convention. in a particular case. So even if two cases have practically the same
issue, the ICJ is not bound.
Southwest Africa, Namibia case
Principle: While in Barcelona Traction a general principle of law ICJ decisions are independent of judicial decisions of other newly
was applied, in Southwest Africa case it was ruled that the created tribunals such as the ICC, etc. for lack of formal or
supposed general principle of law invoked by Ethiopia and Liberia institutional relationship between these tribunals. While they are
was not recognized as a general principle of law (action popularis not binding, they can be given persuasive value or be guides to
was not yet recognized as a GPL in the 1960’s. assist the court.

Facts: The period of 1960’s, was a period of decolonization, Learned Writers


because there was a UN general assembly resolution calling upon
all powerful states, colonizing states, to leave colonized territories Not all publicists will qualify as subsidiary source. It should be the
alone and respect their people’s right to self-determination. “most highly qualified publicists” and they should have been quoted
with regard to a particular norm in International Law.
And so, Germany, which was occupying Southwest Africa or
Namibia decided to implement the decolonization process. The Other possible sources of international law
problem however is this, Namibia did not know yet how to self-
govern. So, civilization level of Namibia was low that it needed 1. Acts of International Organizations 

someone, a trustee, to administer its governmental affairs. Then Examples: UN and its organs like the General Assembly
there was this South Africa. So, South Africa was granted under
the trusteeship program of the UN the power the administer 2. Soft law (law as it ought to be- lex ferenda norm)
southwest Africa, the idea was to teach Namibia to self-govern so Guidelines of conduct which are neither strictly binding
that later on it will be left alone as an independent state. But what norms of law nor completely irrelevant political maxims.
did South Africa do on the contrary? Instead of administering and Laws which have no binding effect to the parties. Thus,
making sure that they will learn to govern themselves, South Africa

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non-observance by states do not give rise to liability. 2. Non Liquet—there is no requirement of agreement.
This is when the court observes that there are neither
Examples: UN Declaration and most of the conferences conventional or customary rules of international law
found in International Environmental Law. The UN that can be applied to the case, general principles of
Declaration, for example only set as guidelines when equity may be applied. This is part of the general
states enact laws between other states and towards their jurisdiction of the ICJ at the time that the parties have
constituents. submitted all issues to the dispute to the court. This
is some sort of “filling the gaps” between the sources
Normally, the enforcement would come through advice of international law.
and issuances telling the violator-state of the standards
that were not complied with. However, there are principles What is the difference between non liquet and ex aequo
under the UDHR that have already ripened into hard laws et bono?
as they are covered by treaty or convention and not The distinction here is in the fact that the ex aequo et bono
because they are mandated by the UDHR. jurisdiction of the ICJ, there are actually applicable rules
of international law to the dispute but the parties have
Hard law (lex as it currently is- lex lata norm) agreed that equity will be applied instead. Maybe the
Law as it currently stands. These are norms where non- parties have already evaluated the outcome of the case
observance of which will result to State Responsibility and the applicable international law will resolve the
dispute and they do not accept the outcome and so they
Examples: Treaty, CIL, Jus cogens would rather submit it to the court of another regime and
that is of equitable consideration other than international
3. Equity (Justice) law.
Principles like: “clean hands”, “good faith”
In the case of non-liquet, it presupposes that there is no
“Ex aequo et bono”(“According to what is right or good” ) applicable law to the dispute and the ICJ apply equity
instead.
Art 38 (2) ICJ Statute –
This provision shall not prejudice
the power of the Court to decide a case ex aequo et bono, Netherlands v Belgium (River Meuse case)
if the parties agree thereto.
 The GPL applied here was “in pari delicto”.

The River Meuse is a shared water resource between
TN: If possible, the ICJ will apply the general concept of
Netherlands and Belgium. In international law basta
fairness, if the parties agree. Hence, it may be possible
share resource whether water or whatever it is always
where equity may be allowed to override other rules,
govern by equitable regime, not equal but equitable
provided that the parties agree.
(principle of equitable use). But under international law
the idea of equitable utilization of resource would have to
What does ex aequo et bono mean?
be agreed first by states concerned. And so Netherlands
Ex aequo et bono literally means a decision in which
and Belgium entered into a treaty on how to utilize its
equity overrides all other rules. The important framework
shared resource. Among others it prohibited the diversion
here is that this ex aequo et bono jurisdiction of the ICJ
of the flow of the River Meuse to benefit only one state
presupposes that as between the parties in that dispute,
and to deny others equitable utilization of the shared
certain rules, whether primary or subsidiary sources may
resource. Ang gibuhat sa Netherlands nag himo siya
be applied to the parties in regard to that dispute but the
Canal. A Canal is man-made river. It was another river
parties have decided that their dispute be resolved on the
made by Netherlands diverting the flow of the River
basis of a particular rule on equity as the court may apply.
Meuse. Ang Belgium instead of complaining did also the
same thing, himo sad siya Canal, diverting the flow of
If “equity” is a “general principle of law” and therefore a
River Meuse to support its Agri-business. Ang nireklamo
source of international law that the ICJ can apply, why
ang Netherlands, “Belgium, you have violated the treaty,
require “agreement” by the parties before “equity” in Art.
that conduct is not pursuant to an equitable conduct.”
38 (2) may be applied by the ICJ?
Because equity under Art. 38 (2) is not applied as a
The ICJ in disposing the case applied the principle of in
general principle of law. The consent of the parties is
pari delicto which is a principle of domestic origin applied
needed because in reality, the controversy can be solved
in an international tribunal. Those who come to the court
by applying treaty law of CIL, but the parties decides to
must to courts with clean hands. Here, the parties were in
apply equitable principles instead. It is in such a case that
pari delicto. The law will therefore, leave them where they
equity overrides all other laws.
are as if no cause of action had been established against
the other.
It is important to note that there are 2 instances where
equity may be applied:
Recitation questions:
1. Ex Aequo et Bono—there is the requirement of
What was the agreement all about?
agreement by the parties. This presupposes that the
parties have agreed to dispense with any applicable
What was the GPL applied to the resolution of the case?
international law but the parties have submitted
(Doctrine of Clean Hands—those who come to courts
themselves to the ex aequo et bono jurisdiction of the
must come to court with rubbing alcohol haha; Mutually
ICJ by permitting the ICJ to resolve the case on the
Guilty Doctrine; In Pari Delicto Doctrine)
basis of equity instead of the applicable rules of
international law
If the River Meuse is a shared resource, what is the
general principle applicable? (Principle of equitable use)

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the jus cogens norm is the prohibition against genocide
What did the country-parties do, in contrast to their
agreement? Guidelines in determining which source of pIL prevails over the
other:
Did Netherlands violate prior to when Belgium violated the Jus cogens norms always prevail
agreement? (Yes) Later law will prevail over the former law
Special law prevails over the general law
What happens when we apply the Clean Hands Doctrine?
Statutory construction principles also apply
Custom vs Usage/ Comity
What will bind sovereign states?
Custom—practice that states believe themselves to be under a Public international law
legal obligation to follow (opinion juris) e.g. state immunity
Unilateral declaration of State Doctrine: a unilateral declaration
Usage or comity—practice that states generally follow without binds the state internationally when:
believing themselves legally bound to do so (e.g. alternat—process - Publicly made and manifesting will to be bound
where states, when they bring a copy of the convention back home, - Made by an authority vested with the power to do so
the first state that appears in the treaty is that state) - Made orally or in writing
- Addressed to the international community or to
Hierarchy of the Sources of International law specific state or entity
- Stated in clear and specific terms
Jus Cogens - Consistent with jus cogens
This is the particular principle of international law that prevails over - Will not bind third states who do not accept it
all others. The material source is Article 53 of the VCLT, making it - Not validly revoked
a limitation to the kind of terms and condition that states may Unilateral declaration of a state may also be a source of obligation
stipulate in a treaty. A treaty is void if, at the time of its conclusion, when done in the above means.
it conflicts with a peremptory norm of general international law (jus
cogens). Even if there is no specific obligation stated in a convention, the
basis of a state to follow an obligation may be its unilateral
For the purposes of the present Convention, a peremptory norm of declaration to comply with the obligation. Because it declared itself
general international law is a norm accepted and recognized by the to follow with the obligation, it must be bound to do so.
international community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a Philippine Practice
subsequent norm of general international law having the same
character. Sec 2, Art II, 1987 Constitution
The Philippines renounces war as an instrument of national policy,
Examples: Prohibition on the use of force, genocide, slavery, gross adopts the generally accepted principles of international law as
violation of the right of the people to self-determination, racial part of the law of the land and adheres to the policy of peace,
discrimination, torture. equality, justice, freedom, cooperation and amity with all nations.

Also, since there is no hierarchy among the sources of international Generally accepted principles of international law in the
law, both Akehurst and Shaw had thought that the international Philippines:
tribunal can actually make use of some common principles of 1. Through incorporation – “front door”; international law
interpretation. These principles of interpretation of course are not becomes automatically part of the law of the land without
unfamiliar to us because in fact they are actually applied in our any action by the government (Article 2, Section 2)
statutory construction (e.g. later law will necessarily derogate the 2. Through transformation – “back door”; via a positive or
earlier law when both laws are of the same character; a later affirmative act by the government transforming the
general law cannot abrogate a prior special law; a special law will international law into domestic law.
abrogate a general law) a. By executive action – official pronouncements
by the Executive departments, i.e. issuance by
Obligations Erga Omnes the President, DFA, etc. 

Obligations of a state to the international community (e.g. not to b. By legislative action – When Congress pass
commit/ fail to punish international crimes; not to violate people’s laws in conformity with international laws 

right to self-determination) c. By judicial action – judicial decisions as when
the Supreme Court will apply the international
Obligations for which all states have a legal interest in the law 

fulfillment by reason of the importance of their subject matter to the
international community. It is the duty to refrain from doing, Kuroda v Jalandoni case
irrespective of any treaty because the obligatory duty of Certain generals questioned the authority of the Philippine
compliance is understood or being owed to the international government in establishing a military commission for the purpose
community as a whole. of trying them for war crimes.
To determine if there exists such a duty towards the international Universal jurisdiction, as mentioned earlier, may apply. They can
community and therefore erga omnes norm is to know whether be prosecuted anywhere. So any state can establish a tribunal for
such duty addresses a jus cogens norm in order protect, promote that purpose. The argument was that why was there a need to
and preserve a jus cogens norm. establish a tribunal to punish war crimes when these are punished
under The Hague and the Geneva Convention which had not yet
For example: Obligation erga omnes is not to commit genocide but

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entered into force in so far as the Philippines is concerned. But
then, the prosecution of war crimes partakes the nature of erga Holy See v Rosario
omnes and the violation of principles of International Humanitarian The right of a foreign sovereign to acquire property, real or
Laws constituting war crimes would be CIL. Such rules and personal, in a receiving state, necessary for the creation and
principles form part of the law of our nation even when the maintenance of its diplomatic mission, is recognized in the
Philippines was not a signatory to the convention embodying 1961 Vienna Convention on Diplomatic Relations (Arts. 20-22).
them. This treaty was concurred in by the Philippine Senate and entered
into force in the Philippines on November 15, 1965.
In accordance with the generally accepted principles of
international law of the present day, including the Hague In Article 31(a) of the Convention, a diplomatic envoy is granted
Convention, the Geneva Convention and significant precedents of immunity from the civil and administrative jurisdiction of the
international jurisprudence established by the United Nations, all receiving state over any real action relating to private
those persons, military or civilian, who have been guilty of immovable property situated in the territory of the receiving
planning, preparing or waging a war of aggression and of the state which the envoy holds on behalf of the sending state for
commission of crimes and offenses consequential and the purposes of the mission. If this is applicable to the envoy, all
incidental thereto, in violation of the laws and customs of war, the more that this rule is applicable to the sovereign itself, the Holy
of humanity and civilization, are held accountable therefor. 
 See.

In the promulgation and enforcement of Executive Order No. 68, Reyes v Bagatsing
the President of the Philippines has acted in conformity with the When the demonstration was controlled on the basis that there
generally accepted principles and policies and international law was an imminent danger on the safety of the US Embassy,
which are part of our constitution. 
 there was an argument that there was a violation on the
freedom of expression which includes the right to peaceably
USA v Guinto assemble.
“A state cannot be sued without its consent”, as expressed in
Article 16, Section 3 of the Constitution is one of the GAPIL (it is The SC said that the right is not absolute. It can be limited not
already CIL) that the Philippines has adopted as part of the law of only by law but also by also by international obligation. The
the land in relation to the incorporation clause found in Article 2, Philippines, not only it is a member of the Vienna Relations, has
Section 2. the duty to protect the embassy of another state as CIL which
is to protect the premises of the mission (the embassy)
Even without this affirmation, we are still bound by this regardless of the convention.
principle under the doctrine of incorporation. Under such, as
accepted by the majority of states, such principles are deemed Which between CIL and treaty law prevails?
incorporated in the law of every civilized state as a condition In terms of clarity of intent, the treaty provides a clearer intent
and consequence of its membership in the society of nations. because for one it is a product of a process or deliberation so what
Upon its admission to such society, the state is automatically comes out after the negotiation and ratification should clearly
obligated to comply with these principles in its relations with other represent the intent of the parties. And so in terms of clarity in intent
states. 
 the treaty may prevail over customary international law.

In the case of the foreign state sought to be impleaded in the local In terms of whether it is more binding, customary international law
jurisdiction, the added inhibition is expressed in the maxim par in has been a product of a long practice and so it may prevail over
parem, non habet imperium. All states are sovereign equals and treaties. Treaties are binding only in so far as to the parties
cannot assert jurisdiction over another (par in parem non concerned, however customary international law are also
habet imporium or principle of co-equality among states). applicable even those states who don’t practice or objected to the
law except if such state is a persistent objector/dissentor.
Note:
Jure imperii—in the sovereign capacity But really, CIL and Treaty can exist alongside each other as was
Jure gestionis—in the private capacity ruled in Nicaragua v. USA case. And as previously discussed,
there is really no hierarchy of sources, except insofar as jus cogens
Jure imperii and jure gestionis (doctrine of restrictive state is concerned
immunity)
Application of state immunity from suit is only confined in acts that
are done in their governmental capacity and not jus gestionis

Consider ICSID in stare immunity


ICSID is not a court, it is just a framework to which the Philippines
is a party. It is an international agreement between states allowing
foreign investors to directly initiate a “suit” for arbitration or
conciliation involving disputes against states (e.g. violation by a
member state of the “Fair and equal treatment rule” involving
foreign investors.

As an international agreement, states have therefore waived their


immunity from suit in the cases covered by the ICSID. The ICSID
rule, however, requires “double consent”. The arbitration case will
be filed in accredited arbitral bodies (e.g. Permanent Court of
Arbitration in Hague), not in domestic courts.

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TOPIC C (TREATIES) The point here is that there is no hard and fix rule in whether it is
considered a treaty or not, but what is settled is, if you want to apply
Definition of a Treaty (Nature of a Treaty) the VCLT to that dispute or agreement then that agreement must
comply with the elements found in Art. 2 (1), par. A, otherwise it
VCLT Definition of Treaty (came into force January 27, 1980) will be governed by other regimes particularly a CIL on the law of
The preliminary research and drafting were carried out by the treaties.
International Law Commission, whose commentary is a useful
guide to the interpretation of the Convention, and indicates the When confronted with a question of “what is a treaty”, you may
extent to which different articles of the Convention reflect the pre- answer in the following manner:
existing customary law and the agreed views of state. VCLT A treaty, for purposes of the application of the provisions of VCLT,
applies only to treaties after entry into force. ILC made a caveat in is (definition of treaty in VCLT). There are international agreements
Article 3 that the entry into force of the VCLT should not be which can still be called treaties between non-state actors but
interpreted in a way as to invalidate all other agreements. governed by a different convention. Example is Convention of 1986
on Treaties entered into by states and international organizations
A treaty per VCLT is “an international agreement concluded and as between international organizations. They are also called
between States in written form and governed by international law, treaties but beyond the provisions of VCLT.
whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation”. This Akehurst says that a treaty is not the only means by which a state
definition excludes agreements between states which are can enter into a legal obligation. A unilateral promise is binding in
governed by municipal law and agreements between states which international law on the state making the promise, if that state
are not intended to create legal relations at all. intended its promise to be legally binding.

Elements: Treaties come in various names


1. An international agreement 
 Agreement, pact, understanding, protocol, charter, statute, act,
2. Concluded between States 
 covenant, declaration, engagement, arrangement, accord,
3. In written form 
 regulation and provision.
4. Governed by International law 

Convention—output treaty that is a result of an initiation by an
International Commission
Again, remember that the VCLT’s definition of a treaty is not all-
inclusive. It is just a definition of the kind of treaty that will be
Protocol—amendment to a treaty
governed by the VCLT. As established in the case of Qatar v.
Bahrain, even agreements that are not in conformity with the
Charter—if the treaty operated to create an international
definition of a treaty in the VCLT, may actually be binding,
organization
especially so that the VCLT provided for an important provision in
Article 3, in relation to the definition of a treaty. It states that:
Statute—if the nature of the treaty is to create a court
“The fact that the present Convention does not apply to
Declarations and Accords—general principles subject to
international agreements concluded between States and
specification later on.
other subjects of international law or between such other
subjects of international law, or to international
Treaties may be codifications of already existing CIL or are
agreements not in written form, shall not affect the legal
themselves evidence of the practice of an emerging customary
force of such agreements.”
international law especially in the case of multilateral treaties.
Is an agreement which has the nature of a treaty of a treaty but is
Treaty Law v Law of Treaties
not reduced to writing a “treaty”? Is it binding on state parties to the
agreement? Yes, see Qatar v Bahrain case
TREATY LAW LAW OF TREATIES
Qatar v Bahrain (applicable case to the question) Pertains to internal Talks about body of rules
There was no treaty here involved. Their representatives met substantive content of treaties applicable to treaties in
several times trying to draw a delimitation of their waters the general without looking at the
purpose of which was to conclude a treaty between them. One of substance or substantive
the agreements they entered into, not yet in a treaty during the content of a treaty
negotiation which agreement was entered into in the minutes. It is Between State A and State B, Whether or not a fundamental
a record of what had transpired during their meetings. It stated if State A wants to withdraw change will entitle a state
there that if there is a dispute in their delimitation they will submit it from the treaty and there are from asking that the
to king of Saudi Arabia for resolution and failure of the king of Saudi agreed procedure on how to provisions of a treaty be
Arabia to resolve the dispute within a certain period then the parties do it as contained in the suspended for a time being
will submit themselves to the jurisdiction of the ICJ. Now the king treaty between State A and and there are conditions
of Saudi Arabia failed to resolve the conflict between Qatar and State B, the resolution of that before a state be allowed to
Bahrain, so one party went to the ICJ, the other questioned the issue would be the province do that, is a question
jurisdiction of the ICJ on the basis that there is no convention or of treaty law governed by the law of
treaty where they have submitted the dispute to the ICJ. The ICJ treaties
said that they have agreed in the minutes. See the minutes are
binding because that was meant to be governed by international
law. It was in writing because the minutes are in written form and it Contract Treaties
says that whatever is its particular designation. The term law-making treaties or contract treaties are used by
authors to distinguish between treaties that cannot be the source
of international law or cannot be a law that will generate

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international law. However, the ILC is not definite on whether the countermeasure. 

definition should apply to both law-making treaties and contract
treaties. Nevertheless, it would be best to assume that the Has a consideration and
definition of a treaty in the VCLT should be a treaty that refers to element of reciprocity; short-
law-making treaties since it requires the element that it should be lived and temporary
governed by international law.
State would say that it will not State would say that it is not
Australia entered into an “agreement” with the Philippines perform its obligations bound to perform its oath
stipulating that the Australian Naval Forces leased a Philippine because the other party because the other party did
Government’s patrimonial property in Subic for its naval and breached the obligation. But not perform its oath. Since that
military exercises in the Philippines for 5 years in the amount of the non-performance was not state is invoking reciprocity,
P10M. Is this a “treaty”? Why or why not? simply because of the breach chances are it may be
For purposes of applying the VCLT, the agreement is not a treaty but because it is the characterized as contract
because it does not satisfy the 4th element that it has to be countermeasure. When you treaty.
governed by international laws. Although it can be called a bilateral invoke countermeasure,
treaty, the rules that should apply in this case are municipal laws you’re treating the treaty as a
of the Philippines, unless this agreement specifically provides that law-making treaty because
it will be governed by international law. In this case, Civil Code may invoking it involves invoking
apply. the provisions of the VCLT.

Reasons why it is not governed by international law: Parties to a Treaty


1. The term is five years – which means it is temporary 

2. 10 million is received in exchange of allowing the use of Difference between a signatory and a party in the treaty (and DBL
patrimonial 
property – this means it is reciprocal added contracting state)
obligation which means a particular obligation is to be Signatory—state signs treaty, either by the head of state or head
performed and therefore the treaty will generate a of government, or anyone with full authority
conduct only on the basis of reciprocity 

Party—treaty has already entered into force that it becomes
Remember, a treaty can exist with or without a binding upon them; expresses its consent to be bound; usually to
consideration. be a party, there needs to be Ratification, Acceptance, Approval
and Accession, as required in the domestic law of the state;
That is what we call contract treaty. This is not the kind of treaty to
be governed by international law because by the nature of the Note: WON the treaty has entered into force already, then that is
contract, it is to be governed by municipal law, not unless parties determinative when it becomes binding upon all states but if the
provide that it will be governed by international law since it is a state already ratified (and etc.) then it is considered a contracting
contract treaty anyway. state already; so whether or not the treaty has already entered into
force, if the state already ratified, accepted, approved or acceded,
Law-making Treaty v Contract Treaty the state is already considered a contracting state

LAW-MAKING TREATIES CONTRACT TREATIES Contracting state— state has already ratified pending entry into
Operate as binding rules, Not sources of international force of treaty
similar to statutes law, but merely legal
transactions What is the significance of knowing the differences?
Imposes the same obligations Treaties which resemble When the state is still a signatory, then the substantive content of
on all the parties to the treaty contracts (reciprocal) the treaty will not yet govern the state’s conduct (e.g. Exit Rules do
and seek to regulate the not apply). When the state is a contracting state, then the state is
parties’ behaviour over a long duty-bound not to perform acts that will render it incapable to
period of time perform the object and purpose of the treaty. When the state is
Purpose is to conclude an Observance of the contract already a party, (so the treaty has entered into force already) the
agreement on universal depends on both contracting provisions of the treaty will already enter into force in their relations.
substantive legal principles; to parties (performance of one
regulate conduct depends on the other’s) and Remember, when there are no Exit Rules found in the treaty, it is
their willingness to observe understood that the state cannot withdraw unilaterally. You need
Governed, intended to be Could be governed by another the consent of all other parties. If they will not consent, the only
governed by international law. regime, not necessarily public way for the state to exit is to invoke the grounds to terminate a

 international law, but it could treaty. But, if the Exit Rules are incomplete, the provisions in the
be domestic law, depending VCLT will fill the void.
on what’s found in the treaty.

Difference between “signature” from “ratification”
Regardless of whether the Performance of an obligation
Signature—the representative of the State signs the document
other party performs the is based upon the
obligations incumbent upon performance of the obligation
Ratification—may or may not make the treaty binding upon the
that party, the other party is of the other. It is similar to a
state; may or may not make the treaty enter into force;
still duty bound. The only contract
situation where it will not be
2 kinds of Ratification:
duty bound is when it invokes
Domestic level—when the representative of the state signs the
one of the grounds precluding
treaty, in the Philippines that it is still not binding. The treaty still
state responsibility, like a valid

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needs to be ratified by the President with the concurrence of the or from 
other circumstances that their intention was
Senate to consider that person as representing the State for
such purposes and to dispense with full powers.”

International level—may mean 2 things:
- bilateral treaty—be in the form of exchange of the “Full powers” means a document emanating from the competent
instruments of ratification authority of a State designating a person or persons to represent
- multilateral treaty—deposit the instruments of the State for negotiating, adopting or authenticating the text of a
ratification to a designated depositary (designated treaty, for expressing the consent of the State to be bound by a
depositary is usually the Secretary of UN) treaty, or for accomplishing any other act with respect to a treaty.
It must refer to all stages (that’s why it’s called full)
It is important to determine whether it is ratification in the domestic
or international level for the purpose of knowing the exact and The powers in pleins pouvoirs must be stated expressly as to cover
precise moment when the treaty has entered into force. authority to negotiate, adopt, authenticate, expressing the consent
and accomplishing any other act, if any. So, it must be specific on
Capacity to enter into treaties what power because it is possible that one bringing the pleins
pouvoirs is only limited to a particular stage.
Article 6, VCLT – States have the inherent capacity to enter into
treaties. This is a customary international law Two kinds of Full Powers:

According to ILC, it is not even necessary to put in Article 6 that 1. General – covers adoption of the text of the treaty,
states have inherent capacity to enter into treaties. Other than signature, and ratification and all other stages needed in
1933 Montevideo Convention on the rights and duties of states, the the process
moment a group of individuals will qualify as a state, one of the
inherent rights of a state is the right to enter into diplomatic 2. Specific – specifies authority of representative to a
legation/diplomatic relation. particular stage of proceeding, example if it is only to
adopt the text of the treaty but it is not authorized to sign
What is the difference between diplomatic relations and consular or submit instruments of ratification
relations?
Diplomatic relations – established for purposes of regulating the Exceptions:
political/governmental relationship between the two states.
Ambassadors and members of the diplomatic mission are in Apparent Authority—Article 7 (1) (b), VCLT –
foreign territories to protect the political and governmental interests If it appears from the practice of the States concerned or from other
of the sending state. circumstances that their intention was to consider that person as
representing the State for such purposes and to dispense with full
Consular relations – established for non-governmental functions of powers.
the state, i.e. commercial and private functions. Example, for
marriage abroad, one is required to get a certificate showing that Implied Authority—Article 7 (2), VCLT –
you have the capacity to enter into such a relation. Because the 1. Heads of State, Heads of Government and Ministers for
right to contract marriage is usually governed by national law. Foreign Affairs, for the purpose of performing all acts
relating to the conclusion of a treaty 

Diplomatic Legation
Since states are juridical entities, the formation of treaties will have 2. Heads of diplomatic missions, for the purpose of adopting
to be done by their agents who are individuals. the text of a treaty between the accrediting State and the
State to which they are accredited (this representative is
Provisions of municipal law regarding competence to conclude constant where an ambassador is for any or all
treaties international organizations or conferences)
The constitutions of many countries provide that the head of state
may not conclude (or, at least, may not ratify) a treaty without the 3. Representatives accredited by States to an international
consent of a legislative organ. What happens if the head of state conference or to an international organization or one of its
disregards such a rule?
organs, 
 for the purpose of adopting the text of a treaty
in that conference, organization or organ. (this
One school of thought says that the treaty is void, although this
representative is “special” where the state will appoint a
conclusion is sometimes limited to cases where the constitutional
special representative for a specific conference or
rule in question is well known
international organization)
Another school of thought considers that the treaty is valid, but
For B and C, full powers is still needed in order to represent the
some supporters of this school are prepared to make exceptions
state for all other stages other than adoption of the text of the
when one party to the treaty knew that the other party was acting
treaty.
in breach of a constitutional requirement.
This becomes implied authority because there is some sort of
Who is authorized to represent the state?
representation that one had been duly authorized. It may be the
case of one appearing before an international conference for
Article 7(1) of the Vienna Convention provides:
several stages of the formation process and so even in other
“A person is considered as representing a State for the
conventions or treaties, he had represented the state. It can be
purpose of...expressing the consent of the State to be
impliedly assumed that he has the authority. Article 7 (2)
bound by a treaty if:
enumerates three groups that are deemed to have been authorized
(a) he produces appropriate full powers; or 

but there is a group authorized for all stages and there are groups
(b) it appears from the practice of the States concerned

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that are authorized only for particular stages. There is a period from signing to becoming a party, during
which time, there is CIL governing all signatories. What is not
Effect if Treaties are entered into by persons not authorized to clear though is the threshold as to when a particular act defeats
represent a state the object and purpose of the treaty and there should be no
Article 8 provides: fixed rule on the matter because:
“An act relating to the conclusion of a treaty performed by - It varies from one treaty to the other. It depends on
a person who cannot be considered under article 7 as the nature of the treaty, the difficulty of locating the
authorized to represent a State for that purpose is without object and purpose of the treaty. 

legal effect unless afterwards confirmed by that State.” - There is a need to analyse the degree of the act
performed by the signatory state. 

There are many ways of confirmation, either implied (state itself
invokes the treaty against another state) or expressly (in writing or No specific rule but the threshold is it should not defeat the object
any other formal process) and purpose of the treaty until it has expressed its intention not to
be bound.
Specific restrictions on authority to express the consent of a state
Although a person may be authorized to enter into a treaty on ü Party – pacta sunt servanda applies. Party is obliged to comply
behalf of a state, in accordance with Article 7, it sometimes with the substantive obligations found in the treaty.
happens that a specific restriction is imposed on his authority.
As to manner of withdrawal from the treaty
Article 47 provides: ü Signatory – can withdraw anytime. There no required
“…his omission to observe that restriction may not be invoked as procedure nor grounds.
invalidating the consent expressed by him unless the restriction
was notified to the other negotiating States prior to his expressing TN: There is no required procedure as to how a signatory to a
such consent” treaty expresses its intention not to be bound. Example is when US
withdrew from the Rome Statute in 2002. There was no required
Signatory v Party form for as long as intent not to be bound by the treaty is
expressed.
What is the difference between a “signatory” from a “party” to a
treaty?
 ü Party – pacta sunt servanda applies therefore, withdrawal must
Where parties to the treaty agreed that the method of expressing be in accordance with the treaty exit rules. Otherwise, it can
consent to be bound is mere signature, there is no distinction invoke CIL such as impossibility of performance, rebus sic
between a signatory and a party. stantibus, material breach.

Where, however, the parties to the treaty agreed that signing is one In the law of treaties, it is what we call Exit Provisions and there
and expressing consent to be bound may be done in other forms are grounds which would allow withdrawal from a treaty.
other than signing, which could be in the form of ratification, When a state, party to a treaty, wants to get out of the treaty, it can
approval or accession, exchange of instruments of ratification, and be done in at least two ways:
any other means that the party could agree – In this case, signatory
is different from a party in the following manner: - Without a ground – there are exit provisions in the
- As to the meaning 
 treaty which allow a party to get out without
- As to the legal obligations 
 necessarily invoking a ground if the parties agree that
- As to manner of withdrawal from the treaty 
 there is such a way. This would usually require some
minimum period of notification. If there is no
As to the meaning stipulation to the contrary, normally, a state is
ü Signatory–signatory pertains to a state where its required to notify at least 12 months before
representative, duly authorized to do so, has signed the withdrawing, renouncing, or getting out of the treaty.
treaty and the signature is not a form of expressing consent 

to be bound. 
 - With a ground – another way of getting out of the
ü Party – party signifies more than signing. A state becomes a treaty without invoking the exit rules is to get out of
party when it has expressed its consent to be bound the treaty on the basis of certain grounds already
through forms agreed upon other than signature, and where recognized by the VCLT and CIL. It is VCLT and CIL
the treaty already enters into force insofar as state party is because VCLT is not just a codification of CIL, but
concerned. 
 also an evidence of a progressive development of
CIL. 

As to the legal obligations Signatory Party
ü Signatory–a State which signed but is not yet a party to a Meaning A state signed the A state which has
treaty which has not yet entered into force has the obligation treaty but the consented to be
not to defeat the purpose and object of the treaty. signature is not a bound and for
form of expressing which the treaty is
While a signatory to the treaty may not be bound yet by the consent to be in force
substantive content of a treaty, it is, however, mandated by CIL bound.
in Article 18 of VCLT which mandates that any state which has Legal obligations Obligation not to Pacta sunt
signed the treaty is also duty bound to refrain from performing defeat the purpose servanda applies
any acts that will defeat the object and purpose of the treaty and object of the
until it expresses its intention not to be bound or decided to treaty. (Art 18
withdraw or not become a party to the treaty. VCLT)
Manner of Can withdraw Withdrawal must

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withdrawal from anytime. There is be in accordance
the treaty no required with the treaty exit Basically adoption kay ang states mufinalize sa final text of the
procedure nor rules or CIL rules. treaty ready for ratification.
grounds.
Non-retroactivity of the present convention
Application of VCLT Article 4 of the VCLT
Without prejudice to the application of any rules set forth
Any chapter on treaties will really have to be law of treaties instead in the present Convention to which treaties would be
of the Vienna Convention on the Law of Treaties because the subject under international law independently of the
Vienna Convention on the Law of Treaties is both a codification of Convention, the Convention applies only to treaties which
CIL and a progressive development of CIL. Meaning, there are are concluded by States after the entry into force of the
provisions which at the time when VCLT came into force, were not present Convention with regard to such States.
yet considered CIL but were hoped by the ILC to develop into CIL.
Entry into force: January 27, 1980
The VCLT entered into force in 1980, if states have practiced the
norm and that there are quite a number of parties to the Vienna Consent to be bound by a treaty
convention on the law of treaties that would establish the principle Article 11 of the Vienna Convention provides:
of generality, the principle that is almost uniform and so widely The consent of a State to be bound by a treaty may be
practiced by states, then so probably that principle that used to be expressed by signature, exchange of instruments
a progressive CIL in 1980’s must have already ripened into CIL at constituting a treaty, ratification, acceptance, approval or
present time. accession, or by any other means if so agreed.
Traditionally, signature and ratification are the most
It is important to know the nature of VCLT because there are states frequent means of expressing consent.
that are not party to the VCLT. So if these parties are not part of
the VCLT and these states entered into certain treaties, what will Strictly speaking, ratification occurs only when instruments of
govern their relationship? It is still the corpus of the law of treaties ratification are exchanged between the contracting states, or are
that partakes of the nature of CIL. The way to understand the deposited with the depositary. In the case of a multilateral treaty, it
characteristics of the law of treaties would be to answer some is obviously impractical to exchange instruments of ratification
questions about it. between a large number of states, and so, instead, the treaty
usually provides that instruments of ratification shall be deposited
What is the best source of interpretation of the VCLT? with a state or international organization which is appointed by the
The travaux preparatoires was carried out by the ILC so its treaty to act as the depositary. The subject matter of a treaty has
commentary is one of the best sources of interpretation of the little bearing on the question whether it requires ratification.
VCLT. Treaties usually state expressly whether or not ratification is
necessary, and this makes it difficult to know what rule to apply if
Conclusion and Entry into Force of Treaties the treaty is silent. The Vienna Convention adopts a ‘neutral’
attitude; everything depends on the intentions of the parties, and
Adoption of the text of a treaty Articles 12(1) and 14(1) of the Convention provide guidelines for
Article 9 of the 1969 Vienna Convention provides: ascertaining the intentions of the parties. Article 12(1) provides:
1. Unanimity Rule—The adoption of the text of a treaty
takes place by the consent of all the States The consent of a State to be bound by a treaty is expressed
participating in its drawing up except as provided in by the signature of its representative when:
paragraph 2. 
 (a) the treaty provides that signature shall have that effect;
2. 2/3 Rule—The adoption of the text of a treaty at an (b) it is otherwise established that the negotiating States were
international conference takes place by the vote of agreed that signature should have that effect; or 

two-thirds of the States present and voting, unless by (c) the intention of the State to give that effect to the signature
the same majority they shall decide to apply a appears from the full powers of its representative or was
different rule. 
 expressed during the negotiations. 


The adoption of the text does not, by itself, create any obligations. Article 14(1) provides:
A treaty does not come into being until two or more states consent The consent of a State to be bound by a treaty is expressed
to be bound by it, and the expression of such consent usually by ratification when:
comes after the adoption of the text and is an entirely separate (a) the treaty provides for such consent to be expressed by
process ratification; 

(b) it is otherwise established that the negotiating States
What is the legal significance of adoption of the text of treaty? were agreed that ratification should be required; 

After adoption of the text, the treaty will be prepared in final form, (c) the representative of the State has signed the treaty
at which point it is usually “authenticated”. (See Art 10, VCLT) subject to ratification; or 

(d) the intention of the State to sign the treaty subject to
The adoption of the text of the treaty governs the subsequent ratification appears from the full powers of its
stages in the treaty formation. In other words, the moment the representative or was expressed during the negotiations.
treaty is adopted, then the conditions of that treaty will govern the 

subsequent stages. For example, after adoption, states will It should also be added that performance of a treaty can constitute
express their consent to be bound. And so we ask the question, tacit ratification. In particular, if a state successfully claims rights
how do they do this? We now look at the text of the treaty as under an unratified treaty, it will be estopped from alleging that it is
adopted. The text of the treaty will provide the manner of not bound by the treaty.
expressing the consent to be bound.

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In addition to signature and ratification, a state can also become a Entry into force
party to a treaty by accession (otherwise known as adhesion or A treaty normally enters into force as soon as all the negotiating
adherence). The difference between accession, on the one hand, states have expressed their consent to be bound by it. But the
and signature or ratification, on the other, is that the acceding negotiating states are always free to depart from this general rule,
state did not take part in the negotiations which produced the by inserting an appropriate provision in the treaty itself. The treaty
treaty, but was invited by the negotiating states to accede to may provide for its entry into force on a fixed date, or a specified
it. Accession is possible only if it is provided for in the treaty, or if number of days or months after the last ratification.
all the parties to the treaty agree that the acceding state should be
allowed to accede. When very many states participate in drafting a treaty, it is unlikely
that they will all ratify it, and it is therefore unreasonable to apply
Summary: the normal rule. Accordingly, such a treaty often provides that it
The traditional methods of expressing consent to a treaty are shall enter into force when it has been ratified by a specified
(Article 11, VCLT): number of states. Even when the minimum number of ratifications
(1) signature is reached, the treaty is, of course, in force only between those
(2) exchange of instruments states which have ratified it; it does not enter into force for other
(3) ratification states until they in turn have also ratified it.
(4) acceptance
(5) approval A treaty can apply retroactively, but only if the contracting states
(6) accession clearly intend it to do so.
(7) other means if so agreed
What about the third states who did not take part in the negotiation?
However, acceptance or approval is sometimes used nowadays in By accession, a third state which did not take part in the negotiation
place of ratification (or, alternatively, in place of accession). In consents to be bound by the treaty and ratified. Accession is
particular, they give a state time to consider a treaty at length possible only if it is provided for in the treaty.
before deciding whether to be bound. The main reason for the
popularity of these terms is that they enable a state to evade Reservations
provisions in its own constitution requiring the consent of the
legislature for ratification. Article 2 (1)d of the VCLT—A unilateral statement, however
phrased or named, made by a State, when signing, ratifying,
The moment they express their consent to be bound, are they accepting, approving or acceding to a treaty, whereby it purports
already bound by the substantive provisions of the treaty? to exclude or to modify the legal effect of certain provisions of the
Not yet, but because of their consent, they are obliged not to defeat treaty in their application to that State.
the purpose of the treaty unless the text provides that the
expression of consent to be bound signifies the entry into force. In A state may be willing to accept most of the provisions of a treaty,
which case, they are bound by the provisions. In the meantime, but it may, for various reasons, object to other provisions of the
they are required to observe the mandate in Article 18 to refrain treaty. The effect of a reservation depends on whether it is
from acts which would defeat the purpose of the treaty. accepted or rejected by the other states concerned. A reservation
to a bilateral treaty presents no problems, because it is, in effect, a
Article 18, VCLT- Legal obligations before treaty enters into force new proposal reopening the negotiations between the two states
concerning the terms of the treaty. In the case of a multilateral
A State is obliged to refrain from acts which would defeat treaty the problem is more complicated, because the reservation
the object and purpose of a treaty when: may be accepted by some states and rejected by others.
1. it has signed the treaty or has exchanged
instruments constituting the treaty subject to The advisory opinion of the International Court of Justice in the
ratification, acceptance or approval, until it shall have Genocide case said “a State which has made...a reservation which
made its intention clear not to become a party to the has been objected to by one or more of the parties to the
treaty [Genocide] Convention but not by others, can be regarded as a
2. It has expressed its consent to be bound by the party to the Convention if the reservation is compatible with the
treaty, pending the entry into force of the treaty and object and purpose of the Convention”
provided that such entry into force is not unduly
delayed. 
 State succession (Clean Slate Doctrine or Doctrine of Tabula
Rasa)
What is meant by “acts which defeat the object and purpose of the When we study state succession, one privilege of a successor
treaty”? state is not to accept treaties entered into by predecessor state.
A good threshold to follow is that put forward by Anthony Oust. The When US succeeded Spain in relation to Philippines, US
act must render the State incapable in performing the object and announced that it will not honor the treaties entered into by Spain
purpose of the treaty when it enters into force. affecting Philippines prior to its succession. This is the principle of
tabula rasa or the clean slate doctrine. That is only applicable to
Do not test the act on the basis of the substantive content but rather state succession.
when the treaty enters into force, the object can still be performed.
There is a different meaning to government and state succession
Is the mere non-conformity already considered defeating the object which we will discuss later on. It may be that there is only a
and purpose of the treaty? government succession and not a state succession. There is
No. Mere non-conformity with the mandate of the treaty may not succession when there is change in sovereignty. There will be
necessarily be a violation of Article 18. The act must render the different rules because we will distinguish peaceful and violent
State incapable in performing the object and purpose when the transition of government.
treaty enters into force.
So this is a good development in studying reservation because a

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successor state can make a reservation. Even before 2011, there
is already a mention of successor state to make a reservation. It is Let’s go back to our problem. Assume that A and B
not any more take it or leave it on the part of successor state. accepted the reservation of State E, C and D objected,
what is the answer to the question? Can State E become
Problem: a party to the treaty? Yes. State E can become a party to
States A, B, C, D and E entered into a treaty. State E made a the treaty despite lack of unanimity provided that the
reservation as regards one particular article while all the rest reservation is not incompatible with the object and
agreed to the treaty without reservations. purpose of the convention.

Is State E considered a party? If one opposes the reservation but 2. Assuming the answer is affirmative, what is the effect of
the others accepted it, will it matter? Does it require unanimity? the reservation as between the reserving state as
between parties accepting and those objecting it?
The nature and the date of the treaty are relevant.
(The voting was not conclusive, it was 7-5)
Nature

There are treaties which do not allow reservations. When the treaty Each state objecting to the reservation will or will not, on
itself provides and for those kinds of treaties dealing with human the basis of the individual appraisal with the limits of the
rights as in the case of the Genocide Convention. criterion of the object and purpose of the convention,
consider the reserving state to be a party to the
Date
 convention. If the objector deems the reservation as
The date is also equally relevant to determine whether the rule in incompatible with the object and purpose, it can consider
the Genocide Convention Advisory Opinion in 1951 will apply. the reserving state as not a party to the convention.
Because before 1951, the rule was unanimity. All must accept,
otherwise the reserving state will not become a party to the treaty. Therefore, that reserving state may not as well demand
The Genocide Convention opened a new paradigm as far as from the objecting state compliance of the article subject
reservation is concerned. The circumstances when the Genocide of the reservation. Treaties here dealt on the threshold
Convention was negotiated and then ratified were vital in a change that it should depend largely on the evaluation of the
from the rigid unanimity rule to a more liberal rule on reservation. objector whether or not the reservation is compatible with
the object and purpose of the convention and this is
Genocide Convention another area where it becomes more subjective rather
There were acts of genocide prevalent at that time. The convention that objective. This suggests that we cannot objectively
was initiated by the United Nations and it involved a ius cogens determine the object and purpose of the convention.
norm and this propelled a more liberal approach. The Convention Apparently that is the case here.
did not permit any reservation and so states questioned this saying
that there should be reservations. Regardless of the basis for the objection, whether
anchored on other grounds aside from judging if such
One of the issues here is the relation of the state which made a reservation is incompatible to the object and purpose of
reservation to other states and its legal effects. the treaty, still the reserving state shall not be considered
a party to that objecting state. This is on the basis of the
The Genocide Convention prohibited genocide and provided that it need to uphold sovereignty of states. What governs treaty
would be declared a crime. Not allowing reservation will promote is consent precisely because we are dealing with
the purpose and objective of the treaty. Between the unanimity and sovereign states. That is the approach even to objections
the liberal approach in the advisory opinion, which will promote the to reservations not based on compatibility or
purpose of the treaty? incompatibility.

The problem with the unanimity rule is that if one of the negotiating When is reservation not allowed?
states objects to the reservation of a state, the reserving state does Article 19, VCLT – A state may, when signing, ratifying, accepting,
not become a party to the treaty. The moment the reserving state approving or acceding to a treaty, formulate a reservation unless:
commits genocide, the state cannot be charged with state 1. The reservation is prohibited by the treaty 

responsibility under a treaty but only under customary international 2. The treaty provides that only specified reservations,
law regime. which do not 
include the reservation in question, may be
made 

So it is important to take note of the date, whether it happened 3. The reservation is incompatible with the object and
before or after the advisory opinion on the genocide convention. purpose of 
the treaty. 

The VCLT now concurs with the advisory opinion. In VLCT, you do
not need to distinguish if it involved genocide or jus cogens norm. It is not allowed if the reservation is prohibited by the treaty. The
ICCPR is a classic example of a treaty not allowing reservation.
Two questions are posed in the reservation of the genocide The Rome Statue for example does not allow reservations.
convention:
Development of a Treaty (How a Treaty is formed)
1. Can a reserving state be considered a party to the
convention while still making the reservation when such 1. Proposal to draft a Treaty
was objected to one or more parties to the convention but 2. Negotiation and drafting of the terms
not by others? 3. Adoption and Authentication of the text of the Treaty by
The reserving state may be regarded as a party to the the negotiating states
convention if the reservation was compatible with the 4. Signature/ expression of consent to be bound by the
object and purpose of the convention. Treaty by the individual states

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5. Ratification of the treaty by the individual states because you want to use the context in interpreting the letter/text
6. Exchange of Instruments of Ratification and Entry into of the treaty.
force of the Treaty
7. Accession to the Treaty by states wishing to join after its What is the difference between treaty interpretation and
entry into force, if any constitutional interpretation?
In constitutional interpretation, the first step to interpret a treaty
Proposal to draft a Treaty is going through the text, within the words, their plain and ordinary
meaning because of the assumption that when the framers used
Formation of a treaty can be initiated in various ways. A treaty can the words or phrase, they are already mindful that these words and
be proposed in the following manner: phrases will be analyzed, read by ordinary people and not just
1. It can be initiated by one state asking another state that lawyers and judges that’s why we give words its plain and ordinary
they will enter into a treaty. There are two possibilities: meaning.
Ø They will meet and try to negotiate the specific
provisions of the treaty, or It is different in international law. The Textualist approach is a
Ø The other state may simply be asked to sign a different textualist approach. It is text + context (circumstances
ready-made treaty by the other state under which the treaty has been negotiated). Text and context
cannot be separated. General rule of interpretation can be found
2. A treaty may be formed because of an international in Article 31:
conference like international conferences of the members
of ASEAN states (10 members), Conference or a Summit A treaty shall be interpreted in good faith in accordance
of Southeast Asian nations, conference by members of with the ordinary meaning to be given to the terms of the
NATO (North Atlantic Treaty Organization) for mutual treaty in their context and in the light of its object and
military action. In these conferences, there are three purpose.
possibilities:
Ø One state may propose that a treaty may be Exchange of Instruments of Ratification
drafted and they will agree on the voting later on;
or 
 Ratification is to be understood in two contexts: Domestic level and
Ø A member of UN, in a plenary, will propose for a International level.
drafting of multilateral treaty or convention and if
General Assembly will approve the motion, Domestic level
normally, the name of the treaty will carry the It may be ratification by the President alone or it may be ratification
word convention. Treaties that carry the name by the concurrence of Congress, if bicameral, by the House of
conventions are UN-initiated. 
 Reps, depending on the domestic law of the state concerned.
Ø A non-governmental organization may draft a
convention or treaty and submit it either to a International level
conference or to a state and offer it to other It can be done in two ways:

member states for signature and discussion. 1. Exchange of instruments of ratification

Examples are the 1949 Vienna conventions and 2. Deposit the instruments of ratification to a designated
its three Protocols in 1977 and in 2005, which depository
have been a product of the work of ICRC - Usually done in multilateral treaties because it will be
(International Committee on the Red Cross). It hard to exchange instruments if there are many
was initiated/drafted by ICRC (a NGO), parties
TN: Designated depository is usually the
submitted to the plenary and then UN agreed to Secretary of UN
make it a treaty/convention and it was approved.

 It is important to determine whether it is ratification in the domestic
Is there legal significance as to how it was initiated? or international level for the purpose of knowing the exact and
Yes. For example, in the interpretation of the treaty, it is important precise moment when the treaty has entered into force. If the treaty
st
to know how it was initiated. provides that it will enter into force upon ratification by the 61
signatory and that ratification that referred to is ratification at the
If it was initiated by one state and the other state was simply asked domestic level, upon proof of ratification at the domestic level, then
to agree, there’s a possibility to argue that it should be interpreted it has entered into force among all of them.
as against the initiating state because it was drafted unilaterally.
Example 1:

If the treaty was initiated in an international conference, the 100 signatories and the treaty says that it will enter into force as
st st
adoption of the text of the treaty would require 2/3 vote, unless between all signatories when the 61 signatory ratifies it. Upon 61
there is a different voting required. If not in an international ratification, treaty entered into force as among the 100 even if
conference, vote required is unanimity. others have not yet ratified the treaty. That is from the perspective
of international law.
Negotiation and drafting of the terms
Example 2:

What is the importance of knowing what happened during the Treaty says that it will enter into force upon the deposit of the
negotiation? instruments of ratification, meaning, it will really have to wait for all
It is important to know what happened during the negotiation for to deposit their ratification instrument with the designated
the purpose of knowing the intent. The process of negotiation will depository. But that is seldom adopted, otherwise the treaty will
reveal the object and purpose of the treaty for purposes of arguing hardly enter into force.
along teleological approach. It may also reveal the intent of the
parties and the context under which the treaty had been negotiated Entry into Force

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Art 24 (2), VCLT – As a rule, a treaty enters into force as soon as relationship between pacta sunt servanda and jus cogens is
all negotiating states have expressed their consent to be bound by regardless of level of consent given by parties, if the provision of
it, unless otherwise stipulated in the treaty. the treaty contravenes jus cogens, the provision in treaty is invalid
despite pacta sunt servanda.
Look at the text of the treaty first. If there is no stipulation as to the
date when it enters into force, the default rule applies – when all Application of Treaties
states have expressed their consent to be bound.
Territorial Scope of Treaties
Effects of a treaty after entry into force Article 29 of the Vienna Convention states: ‘Unless a different
1. Pacta sunt servanda (Art 2, UN Charter) – intention appears from the treaty or is otherwise established, a
- Every treaty in force is binding upon the parties to it treaty is binding upon each party in respect of its entire territory.’
and must be performed by them in good faith. This general rule is often altered by a specific provision in a treaty.
- Exceptions: Rebus sic stantibus and jus cogens)

(See discussion on relationship between pacta, Problem:
rebus and jus cogens)
 The US and the Philippines entered into a treaty. US was granted
authority to establish military bases in the Philippines. In like
2. A party cannot invoke a provision of its domestic law to manner, the Philippines was allowed to establish military bases in
evade compliance (Art 27) 
 Guam which is a territory of the US. The US protested saying that
while Guam is a territory of the US, it is not however a State of US.
3. Treaties do not prima facie operate retrospectively, How will the Philippines respond to such protest? 

unless a different intention appears (Art 28)
Answer:
4. A treaty cannot prejudice third states without the latter’s Go back to Article 29, VCLT. It is important to look at the treaty
express consent. (Arts 34, 35) whether it excludes Guam, otherwise, the application of the treaty
is deemed to include the entire territory. 

Accession to the Treaty
There are states which did not participate in the negotiation but Guam may not be one of the states of the US but it is considered
would want to become party and there might be provisions on an incorporated territory. Article 29 of the VCLT is relevant at the
accession. The form of accession (as to how the new state will height of pre- decolonization stage where the states entering into
become a party to the treaty) will also be provided for. agreement determines the territorial scope and extent of the
application of treaties – including its colonized states. Now it may
Registration with the Secretariat be applied to states as part of their territory. Guam is not of the
states of US but is considered a territory under a special regime.
Article 102, United Nations Charter – They don’t participate in the elections but its inhabitants are
Every treaty and every international agreement entered granted American citizenship.
into by any Member of the United Nations after the
present Charter comes into force shall as soon as Treaties and third states
possible be registered with the Secretariat and published Art 34, VCLT – (The general rule is that) a treaty creates neither
by it. 
 rights nor obligations for third states (that is, states which are not
parties to the treaty). But there are exceptions to this general rule,
No party to any such treaty or international agreement which are laid down in detail in Articles 35–7 of the Convention.
which has not been registered in accordance with the Art 296) of the UN Charter (which is a treaty) announces a policy
provisions of paragraph 1 of this Article may invoke that which the UN must follow in relations with non-members.
treaty or agreement before any organ of the United
Nations. 
 Art 2 (6), UN Charter – The Organization shall ensure that States
which are not Members of the United Nations act in accordance
What happens if this is not complied with? with these Principles so far as may be necessary for the
The treaty is still valid, only that it cannot be invoked in any of the maintenance of international peace and security.
organs of the UN. Thus, if you charge the state of committing an
internationally wrongful act and you charge it with state It is sometimes suggested that Article 2(6) of the United Nations
responsibility, you go to ICJ but because the treaty is not Charter (which is a treaty) imposes obligations on states without
registered, you cannot do that. their consent. In reality, Article 2(6) does not even purport to
impose obligations on non-members; it merely announces the
However, never think that non-registration renders a treaty policy which the United Nations will follow in its relations with non-
unenforceable. If the treaty has compulsory arbitration laws, one members.
party may compel the other to submit it for arbitration but you do
not need to go to the UN. It is still enforceable. It is only Application of successive treaties relating to the same subject
unenforceable with respect to UN organs. matter
Article 30 of the Vienna Convention lays down detailed rules to
Relationship between pacta sun servanda, rebus sic stantibus and deal with instances when a party to a treaty subsequently enters
jus cogens: into another treaty (sometimes even when the other party to the
When a treaty enters into force, Art 26 of the VCLT comes into new treaty are not parties to the previous treaty) relating to the
play: pacta sunt servanda, compliance in good faith. same subject matter, and that the provisions of the two treaties are
mutually inconsistent.
Pacta sunt servanda is the general rule the moment the treaty
enters into force. For a state not to be bound, as exception to pacta Article 30, VCLT
sunt servanda, you may invoke rebus sic stantibus. The 1. Subject to Article 103 of the Charter of the United Nations,

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the rights and obligations of States parties to successive 2. A dispute involving a 1960 treaty between State A and
treaties relating to the same subject-matter shall be State B
determined in accordance with the following paragraphs.
Answer: Yes. A rule embodied in the VCLT may already
Article 103, UN Charter: be a CIL even before the VCLT codified it,
In the event of a conflict between the obligations of the notwithstanding the fact that the VCLT provides for non-
Members of the United Nations under the present Charter retroactivity (covers only from 1980 onwards). Hence, if a
and their obligations under any other international rule had already been universally practiced and accepted
agreement, their obligations under the present Charter even before 1980, and is already existing at the time of
shall prevail. 
 the dispute, then such could be applied. The date is
relevant in order to know if the VCLT applies to it. If the
2. When a treaty specifies that it is subject to, or that it is not rule is of customary international law character, it may
to be considered as incompatible with, an earlier or later actually be applied not because VCLT is given retroactive
treaty, the provisions of that other treaty prevail. 
 application, but because as ruled in Nicaragua v. US, a
customary international law will not lose its character of
3. When all the parties to the earlier treaty are parties also being CIL even if it had been codified in a treaty or
to the later treaty but the earlier treaty is not terminated or convention. If rule found in VCLT has not attained CIL
suspended in operation under article 59, the earlier treaty status, it cannot be applied to the 1960 treaty between
applies only to the extent that its provisions are State A and State B.
compatible with those of the later treaty. 

3. A dispute involving 1995 treaty between State A and
State B which are not parties to the VCLT
4. When the parties to the later treaty do not include all the
parties to the earlier one: (a) As between States parties
Answer: Yes, the basis may not be the VCLT, but the CIL
to both treaties the same rule applies as in paragraph 3;
embodied in it. CIL applies to all States whether VCLT
(b) As between a State party to both treaties and a State
party or not unless that state is a persistent objector.
party to only one of the treaties, the treaty to which both
States are parties governs their mutual rights and
SUMMARY:
obligations. 

Rules found in VCLT which have achieved customary international
law character may be applied in treaties concluded before the
5. Paragraph 4 is without prejudice to article 41, or to any VCLT entered into force and even between states and non-states,
question of the termination or suspension of the operation parties or not to the VCLT.
of a treaty under article 60 or to any question of
responsibility which may arise for a State from the Interpretation of Treaties
conclusion or application of a treaty the provisions of
which are incompatible with its obligations towards General Interpretation of Treaties
another State under another treaty. 
 Article 31, VCLT – General Rule of Interpretation
A treaty shall be
interpreted in good faith in accordance with the ordinary meaning
Are there treaties preferred over all other treaties or do we go by to be given to the terms of the treaty in their context and in the light
incompatibility test? of its object and purpose.
Yes. The UN Charter, by virtue of Article 103 (see above) 1. Text (ordinary meaning)
2. Context

The members of the UN have already agreed and committed
3. Object and purpose
among themselves that in case their obligations under different
treaties conflict with their obligations under the UN Charter – the
Art 31 gives three methods of interpretation and be aware that CIL
UN Charter shall prevail.
requires the application of all three methods in one setting. It is not
the same statutory construction we apply in local laws. In
That may be problematic for those who are not parties to UN
international setting, we combine all three – text, context, object
Charter, but even then the UN Charter provides that those who are
and purpose.
non-members are bound to behave to maintain peace and order
and security of all member states.
Supplementary Means of Interpretation
May the rules in the VCLT apply in the following:
If there is still ambiguity or unreasonableness, resort to the
1. A dispute involving a “treaty” between State A and the
supplementary means of interpretation (Art 32):
IMF-World Bank
1. Preparatory works (Travaux perpetoire)

Answer: Yes, the rules, not really the VCLT provisions 2. Circumstances of its conclusion (contemporaneity)
themselves that are already CIL can apply. This should
be treated carefully because the question states “may the Is one approach preferred over the other?
rules found in the VCLT be applied” and not “may VCLT There is no definitive answer but we can be guided by some
be applied”. If you say “rules”, you have to first examine pronouncements of authors and cases. In some cases, object and
what particular rule are you going to apply to the “treaty”. purpose is applied or the context. If application of these
between State A and the IMF-World Bank. If you look at approaches will yield to ambiguity or unreasonableness, and then
VCLT, it is a codification of customary international law on we can resort to supplementary methods of interpretation
the law of treaties. The codified CIL found in the VCLT will
apply to treaties whether or not they belong to the scope Validity and Continuance in Force of Treaties
of the VCLT
Ways by which a state party to a treaty may no longer be bound by

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the treaty: A violation is manifest if it would be objectively evident to any State
1. Withdrawal or renunciation 
 conducting itself in the matter in accordance with normal practice
2. Invalidity of treaty – this presupposes that the treaty is and in good faith.
defective 

3. Termination of treaty – treaty is valid but may be If the government disregards constitutional requirement that our
terminated 
based on valid grounds 
 treaty be ratified by President and concurred with Senate – this is
rule of fundamental importance. Thus, if not complied with, the
Article 42, VCLT – treaty may be invalidated on the ground because of improper
1. The validity of a treaty or of the consent of a State to be consent.
bound 
by a treaty may be impeached only through the
Specific restrictions on authority to express the consent of a
application of the present Convention. 

state
2. The termination of a treaty, its denunciation or the Although a person may be authorized to enter into a treaty on
withdrawal of a party, may take place only as a result of behalf of a state, in accordance with Article 7, it sometimes
the application of the provisions of the treaty or of the happens that a specific restriction is imposed on his authority; for
present Convention. The same rule applies to suspension example, he may be instructed not to enter into a treaty unless it
of the operation of a treaty. 
 contains a particular provision to which his state attaches
importance
Invalid Treaties
What happens if he disregards such restriction?
Article 42(1) of the Vienna Convention provides: Article 47, VCLT –

The validity of a treaty or of the consent of a State to be If the authority of a representative to express the consent
bound by a treaty may be impeached only through the of a State to be bound by a particular treaty has been
application of the present Convention made subject to a specific restriction, his omission to
observe that restriction may not be invoked as invalidating
This is to prevent states attempting to evade inconvenient treaty the consent expressed by him unless the restriction was
obligations by making far-fetched allegations that the treaty is notified to the other negotiating States prior to his
invalid. expressing such consent.
Grounds for Invalidity of Treaties Summary:
Articles 46-53, VCLT General Rule: Omission to observe the restriction cannot invalidate
1. Provisions of municipal law regarding competence to the treaty.
conclude treaties 

2. Specific restrictions on authority to express the consent Exception: If other negotiating States have been notified of the
of a state 
 restriction prior to his expressing such consent
3. Error 

4. Fraud 
 Authorized Representatives
5. Corruption of a representative of a State 
 The right to legation is a CIL – the right to send diplomatic
6. Coercion of a representative of a State 
 representatives abroad. Since states are legal persons, they are
represented by their agents.
7. Coercion of a state by the threat or use of force 

8. Treaties conflicting with jus cogens norm 
 Who are considered authorized representatives?
See Article 7, VCLT (page 16)
Note: Distinguish grounds for INVALIDITY and grounds for
TERMINATION (where the treaty is valid but a party can get out of Are there persons who are considered authorized representatives
a treaty or be exempt from the performance of an obligation by even without having to produce full powers?
reason of any of these grounds) Yes. Article 7(2), VCLT or those who have Implied Authority—By
virtue of their functions and without having to produce full powers,
Provisions of Municipal Law regarding Competence to the following are considered as representing their State:
Conclude Treaties
A State may not invoke the fact that its consent to be bound by a - Heads of State, Heads of Government and Ministers
treaty has been expressed in violation of a provision of its internal for Foreign Affairs, for the purpose of performing all
law regarding competence to conclude treaties as invalidating its acts relating to the conclusion of a treaty
consent unless that violation was manifest and concerned a rule of - Heads of diplomatic missions, for the purpose of
its internal law of fundamental importance. adopting the text of a treaty between the accrediting
State and the State to which they are accredited
Basically: - Representatives accredited by States to an
General Rule: Article 27— a state cannot invoke its domestic law international conference or to an international
to evade compliance of treaty obligation organization or one of its organs, for the purpose of
adopting the text of a treaty in that conference,
Exception: Article 46 organization or organ
1. The internal law that can be invoked as permitting non-
compliance of treaty obligation must be of fundamental Effect of Ultra Vires Act
importance Article 8, VCLT
2. The violation of that internal law, regarding to the
competence to conclude treaties must be manifest General rule: An act relating to the conclusion of a treaty performed
by a person who cannot be considered under Article 7 as
When is a violation said to be manifest? authorized to represent a State for that purpose is without legal

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effect. illegal, the validity of the treaty is not affected by subsequent
changes in the law which declare that force is illegal and that
The performance of functions by a representative outside of treaties procured by force are void
authority (ultra vires), like he was authorized only to adopt but he
went on to sign the treaty, would lead to the act not binding the Other causes of invalidity
state as if it has never been signed. According to the VCLT, a state’s consent to be bound by a treaty
can be invalidated by:
Exception: If subsequently confirmed by the State (1) mistake
(2) fraud of another negotiating state
Mistake or Error (3) conflicts with jus cogens
1. A state may invoke an error win a treaty as invalidating its
consent to be bound by the treaty if the error relates to a Treaties conflicting with Jus Cogens
fact or situation which was assumed by that State to exist A treaty is void if, at the time of its conclusion, it conflicts with a
at the time when the treaty was concluded and formed an peremptory norm of general international law.
essential basis of its consent to be bound by the treaty. 

Consequences of invalidity
2. Paragraph 1 shall not apply if the State in question (1) In cases covered by Articles 8 and 51–3 of the Vienna
contributed by its own conduct to the error or if the Convention, the treaty is void, or the expression of
circumstances were such as to put that State on notice of consent to be bound by the treaty is ‘without legal effect’,
a possible error. 
 which comes to the same thing.
(2) In cases covered by Articles 46–50, however, the Vienna
3. An error relating only to the wording of the text of a treaty Convention says that a state may merely invoke the
does not affect its validity; Article 79 then applies. 
 vitiating factor as invalidating the treaty; the effect of this
formula is that the treaty is probably voidable rather than
Preah Vihear Temple case void;
Requisites of error:
1. Error is about a fact or situation which was assumed to In both cases, however, Articles 65–8 of the Vienna Convention
exist at the time of conclusion 
 provide that a party challenging the validity of a treaty must notify
the other parties to the treaty and give them time to make
2. That fact or situation forma an essential basis of the
objections before it takes any action
consent to be bound of the treaty 

3. Subject matter of the temple case the state invoking the Article 66 confers jurisdiction on the International Court of Justice
error must not have contributed to the error. (Doctrine of over disputes arising from Article 53 (jus cogens) and confers
Clean Hands) 
 jurisdiction over other disputes on a special conciliation
4. The state had known of the error or would have known of commission set up under an annex to the Convention.
the error. 

Termination of Treaties
Fraud
If a State has been induced to conclude a treaty by the fraudulent Article 26 of the Vienna Convention provides for the rule on pacta
conduct of another negotiating State, the State may invoke the sunt servanda. In other words, a state cannot release itself from its
fraud as invalidating its consent to be bound by the treaty. treaty obligations whenever it feels like it;

Corruption of a Representative of the State Article 42(2) of the Vienna Convention seeks to protect the security
If the expression of a State's consent to be bound by a treaty has of legal relations by providing: ‘The termination of a treaty, its
been procured through the corruption of its representative directly denunciation or the withdrawal of a party, may take place only as
or indirectly by another negotiating State, the State may invoke a result of the application of the provisions of the treaty or of the
such corruption as invalidating its consent to be bound by the present Convention. The same rule applies to suspension of the
treaty. operation of a treaty.’

Coercion of a representative of a state General Rule: Pacta Sunt Servanda


Article 51 provides that the expression of a state’s consent to be
bound by a treaty when procured through coercion of its It is only in exceptional and well established grounds that pacta
representative through acts or threats directed against him shall be sunt servanda may be dispensed with
without any legal effect.
Grounds for Termination, Denunciation, withdrawal, or
What if the coercion is on the state and not on the representative? Suspension:
Will it invalidate the treaty?
 I. Application of the treaty
Yes, as provided by Article 52 and it is tantamount to violation of
the principle of non-intervention. Application of the treaty itself (e.g. when the object of the treaty is
already fulfilled or when the treaty provides for “Exit Rules”)
Coercion of a state by the threat or use of force
Article 52 of the Vienna Convention provides: II. Application of the VCLT (Art. 42)
“A treaty is void if its conclusion has been procured by the
threat or use of force in violation of the principles of Article 42, VCLT –
international law embodied in the Charter of the United Ø The validity of a treaty or of the consent of a State to be
Nations.” bound by a treaty may be impeached only through the
application of the present Convention. 

But, if a treaty was procured by force at a time when force was not Ø The termination of a treaty, its denunciation or the

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withdrawal of a party, may take place only as a result of the operation of the treaty in whole or in part or to
the application of the provisions of the treaty or of the terminate it either:
present Convention. The same rule applies to suspension (i) In relations between themselves and the defaulting
of the operation of a treaty. 
 State 

(ii) As between all the parties 

Article 59—Termination or Suspension of a Treaty implied by
Conclusion of a Later Treaty Ø A party specially affected by the breach to invoke it as a
ground for suspending the operation of the treaty in whole
III. Consent of all parties e.g Desuetude (Art. 54) or in part in the relations between itself and the defaulting
State. 

The termination of a treaty or the withdrawal of a party may either Ø Any party other than the defaulting State to invoke the
be: breach as a ground for suspending the operation of the
Ø In conformity with the provisions of the treaty, or
 treaty in whole or in part with respect to itself if the treaty
Ø At any time by consent of all the parties after consultation is of such a character that a material breach of its
with the other contracting States. provisions by one party radically changes the position of
every party with respect to the further performance of its
Implied Right of Denunciation or Withdrawal obligations under the treaty. 

Article 56, VCLT
1. A treaty which contains no provision regarding its What constitutes material breach?
termination and which does not provide for denunciation A material breach of a treaty consists in:

or withdrawal is not subject to denunciation or withdrawal Ø A repudiation of the treaty not sanctioned by the present
unless: 
 Convention, or

Ø It is established that the parties intended to admit the Ø The violation of a provision essential to the
possibility of denunciation or withdrawal; or 
 accomplishment of the object or purpose of the treaty.
Ø A right of denunciation or withdrawal may be implied
by the nature of the treaty. 
 A repudiation of the treaty not sanctioned by the present
Convention
2. A party shall give not less than twelve months’ notice of
its intention to denounce or withdraw from a treaty under Advisory Opinion on Namibia
par 1. 
 Falls under the first kind of breach (repudiation)

The International Law Commission thought that an agreement to Facts:


terminate could even be implied if it was clear from the conduct of (see full facts above) But because most colonies were incapable
the parties that they no longer regarded the treaty as being in force. of self-governance, the UN placed them under trusteeship
The technical name for this method of termination is ‘desuetude’. mandate. South Africa was the one entrusted with Namibia. There
was a mandate (treaty) between South Africa and the League of
It follows from the wording of Article 56 that a right of denunciation Nations and South Africa was mandated to promote the well-being,
or withdrawal can never be implied if the treaty contains an express safety and protection of the people of Namibia.
provision concerning denunciation, withdrawal, or termination.
But instead, South Africa discriminated the people of Namibia and
IV. Discharge through Material Breach (Art. 60) imposed upon them apartheid. Such discrimination was
considered as a material breach of the mandate (treaty). The
Problem: States A and B entered into a Diplomatic Relations violation of a provision essential to the accomplishment of the
Treaty that allows both states to establish diplomatic missions in object or purpose of the treaty.
the territory of another. When State A discovered that State B used
its embassy for surveillance and espionage in the territory of State Gabcikovo-Nagymaros Project
A, the latter arrested and detained State’s Ambassador and staff.
When State B acused State A of violating their Diplomatic Facts:
Relations Treaty, State A invoked “material breach” on the part of Hungary and Czechoslovakia both entered into an agreement in
State b that caused the termination of the said treaty. Was the creating a project. The project entered into by the two states
action of State A in accordance with international law? created a systems of locks, hydroelectric power plant, and flood
control.
Answer: Any act that constitutes as a breach of a treaty will only
give the victim-state the right to invoke the ground before The Treaty was signed in 1977. Thereafter, both parties slowly
termination or suspension. A mere act committed constituting performed their works. But there were changes in the
material breach does not automatically terminate or suspend the administration, from one regime in another. In Hungary for
treaty. Invocation must be made by the victim-state. example, its government had a change in administration and a lot
of its citizens, most especially the environmentalists in Hungary
Material breach of a bilateral treaty opposed the project due to its environmental effects like the system
A material breach of a bilateral treaty by one of the parties entitles of blocks which will pollute the waters.
the other to invoke the breach as a ground for terminating the treaty
or suspending its operation in whole or in part. It was relevant to Hungary because if they pursue the project, they
will be violating another International Law, specifically the
Material breach of a multilateral treaty International Environmental Law, which is the preservation of the
A material breach of a multilateral treaty by one of the parties environment. But the norm on International Environmental Law
entitles: was not yet a norm when both states entered into a treaty.
Ø The other parties by unanimous agreement to suspend

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Hungary, however did not abandon the treaty right away. It first environmental norm. In addressing the issue, ICJ said
suspended the operations of the project and then eventually it that the development of a new norm cannot be
abandoned the project leading to Czechoslovakia implementing considered as a fundamental change in circumstances.
the Variant C.
Ø The injured state must have called upon the state
Major issue was whether or not Czechoslovakia was mandated to committing the wrongful act to discontinue its wrongful
implement the Variant C? conduct or make reparation for it (also known as the
summation-notification requirement of counter measure)
Hungary alleged that Czechoslovakia’s act of implementing the 

“Variant C” would divert 80% the flow of the Dalupe River (which is Ø The act must be proportional to the wrongful act.

a shared resource of both states) to Czechoslovakia. Hungary said
that it was a material breach because it violated the object and In this case, the act of Czechoslovakia was not
purpose of the treaty because the object of the treaty is to share proportional to the breach caused by Hungary because
the Danube River. the damage caused by the implementation of the Variant
C is greater. The implementation of the Variant C would
ICJ ruled that the invocation of material breach was untimely result to the diversion of 80-90% of the flow of the river.
because at that time that Hungary claimed that Slovakia would Therefore, Czechoslovakia was not justified in
materially breach the treaty Variant C was not yet implemented. implementing the Variant C. 

According to the ICJ, you cannot pre-empt material breach. You

cannot say that by virtue of a plan a state would commit material
breach, you contest that plan, that is premature. If you invoke Under the VCLT, a material breach is considered a ground to
material breach, you cannot invoke it prematurely. The Variant C terminate, and not a cause that ipso facto terminates a treaty. Only
must be implemented sometime in August 1992 and the claim of a ground, and is it is up to the aggrieved party to invoke it or let it
material breach was made sometime May, so earlier. pass. Also, of important concern is the unavailability of material
breach as a ground to terminate or suspend a treaty when the
If a state is accused of having materially breached a treaty and treaty involve is of humanitarian character. So, even if there is a
then that state would say that they have no responsibility nor supposed material breach committed by State A, State B cannot
committed any wrong because the other state actually committed say that this treaty is based on humanitarian law. These are set of
a prior wrong, so this subject matter now of the controversies only principles that are aimed at protecting the protected subjects of
in response to a prior breach, how do you call this? How do you international humanitarian law. So, even if the other state breaches
call that ground that will excuse a state from committing a material a provision of treaty which is of humanitarian in character, you
breach? Under the VCLT that would be a justification, we call it a cannot invoke it as a ground to terminate or suspend the treaty
counter- measure. Czechoslovakia argued that it was not a
material breach, but only in response to the earlier breach V. Impossibility of Performance
committed by Hungary (considered it as a counter-measure)
There is impossibility if there is permanent disappearance or loss
of the object of the obligation
The moment there is a material breach, an aggrieved state has
three options: What about the doctrine of state necessity?
Ø May terminate the treaty 
 It is not a ground to terminate a treaty. According to the ICJ, if you
are to invoke state necessity you are excused for not performing
Ø May claim for compensation or any form of reparation as
the obligation but the treaty is really effective, so that if the reason
a result 
of an internationally wrongful act 

for that necessity no longer exist, the treaty becomes binding
Ø May make use of counter-measure in response to a again.
material breach 

In all of this you have to get out of the treaty, you don’t want the
This is important because a material breach is an international treaty to be binding anymore, except in the case of suspension
wrongful act (IWA). It is either a violation of conventional or where for a time being the treaty will not be applied to you, but in
customary international law that would engage state responsibility. the state of necessity, it is different. It is a ground to justify non-
So, in many cases, material breaches have been invoked also as performance of an obligation under the treaty. It started, of course,
a ground to implement counter-measure. Because under the Draft of the notion general preservation, self-help then it became
Articles on Responsibility of States on Internationally Wrongful Act doctrine of necessity and now the International Law Commission
(ARSIWA), counter- measures are among those called transported this principle in what is not found in Art. 25 of the 2001
circumstances that would preclude wrongfulness of an act. So, if Draft Articles on the Responsibility of States for Internationally
material breaches have been committed by the other party, let us Wrongful Act.
say State A, and State B performs an act in violation of the same
treaty. State A, which has committed a prior breach, cannot impute Article 61 of the Vienna Convention:
upon State B responsibility for violating the same treaty if State B (1) A party may invoke the impossibility of performing a
lawfully implements counter-measure. treaty as a
a. ground for terminating or withdrawing from
Requirements for a valid counter-measure: it if the impossibility results from the permanent
Ø Must be taken in response to a previous international disappearance or destruction of an object
wrongful act of another.
 indispensable for the execution of the treaty.

In this case, Hungary committed a wrongful act when it b. ground for suspending the operation of the
suspended then abandoned the project. Hungary, on the treaty if the impossibility is temporary
other hand, invoked fundamental change of circumstance
as a defense due to the development of a new (2) Impossibility of performance may not be invoked by

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a party as a ground for terminating, withdrawing from of the obligations to be executed to the extent of rendering
or suspending the operation of a treaty the performance something essentially different from that
a. if the impossibility is the result of a breach by that originally undertaken. 

party either of an obligation under the treaty or Ø The circumstances that changed must refer to those that
of any other international obligation owed to any determined the parties to accept the treaty. 

other party to the treaty. 
 Ø The change in circumstance must have been unforeseen
by the parties 

VI. Rebus Sic Stantibus (Art. 62) Ø The existence of the circumstances at the time of the
treaty’s conclusion must have constituted an essential
Not implied. Otherwise known as fundamental change of basis of the consent of the parties to be bound 

circumstance. Applicable only in the most exceptional
circumstances (last resort always). Fisheries Jurisdiction Case
Difference between fundamental change of circumstance and Facts:
rebus sic stantibus: (see full facts above) When the case was brought to the ICJ,
Iceland claimed that ICJ has no jurisdiction because such treaty
Rebus sic stantibus Fundamental change of has been terminated or at the very least suspended. It was the
circumstance technique in fishing that was considered a fundamental change,
principle belonging to in the realm of modern law of which resulted to the over fishing.
traditional law of treaties treaties (referred to the regime
affecting treaties as embodied Icelanded wanted to extend up to 50 nautical miles instead of 12
in the VCLT) nm because of new fishing techniques such that the 12 nm area
applied to perpetual treaties, can be invoked whether the was over-exploited. Iceland claimed that the ICJ has no jurisdiction
not those treaties with fixed treaty is perpetual or with because the technique in fishing was considered a fundamental
terms fixed-term. 
 change terminating or at the very least suspending the treaty,
applicable to all nature of not apply when the treaty
treaties, even if it involves involves boundaries Held:
boundaries Fundamental change in circumstance must refer to the obligations
in the treaty. The circumstance that changed must have changed
Because there are some changes introduced by the ILC to the the performance of the obligation of the parties. In this case, the
original concept of rebus sic stantibus, they did not want to use the obligation to be undertaken in the treaty is to submit to the
term “rebus sic stantibus” in the VCLT jurisdiction of the ICJ cases where there is a dispute in connection
to treaty.
Is rebus sic stantibus applicable only to indefinite treaties?
Supposedly. However, since such principle has not been carried ICJ said that the change in the technique in fishing cannot be
out in the VCLT, the ILC made a clarification that rebus sic considered a fundamental change of circumstance because it had
stantibus is applicable to any treaty (both indefinite and those with nothing to do with the obligation of the treaty, which is to submit to
an expiration period. the jurisdiction of the ICJ.

Nature of rebus sic stantibus/ fundamental change of circumstance Appeal Relating to the Jurisdiction of the ICAO Council (India v
Rebus sic stantibus is an exception to pacta sunt servanda. States Pakistan)
have accepted this as a ground to terminate a treaty when that
treaty no longer applies to the parties because of the fundamental Facts.
change of circumstance. This is a practice of domestic laws applied A complaint against India (P) was brought before the Council of the
to contracts that developed into the international level. International Civil Aviation Organization (ICAO) by Pakistan (D) for
the violation of treaty provisions after India (P) unilaterally
Elements of Fundamental Change of Circumstances: suspended flights of Pakistan (D) aircraft over Indian (P) territory.
Ø The change of circumstances must have been of a Based on the premise that Pakistan (D) had hijacked an Indian (P)
“fundamental” character 
 plane, Indian (P) appealed to the I.C.J., asserting that it had
suspended the treaty. Pakistan (D) objected to the jurisdiction of
When can change be considered fundamental? the I.C.J.’s on the ground that India’s (P) unilateral suspension had
o It should radically transform the extent of the made the jurisdictional clauses inoperative.
obligation that will be 
performed 

o The party, due to the change in circumstance, Issue.
would now be obliged 
to perform something Are jurisdictional clauses rendered inoperative by mere unilateral
suspension?
which is different from that which was originally

agreed upon 

Held.
o By radically transform – it means that the change No. Jurisdictional clauses are not rendered inoperative by a mere
must have increased 
the burden of the unilateral suspension alone. If a mere allegation that a treaty was
obligation to be executed to the extent of no longer operative could be used to defeat its jurisdictional
rendering the performance of something clauses, then clauses of these nature would become potentially a
essentially different 
 dead letter. This implies that the Court does have jurisdiction.

Ø The change must have resulted in a radical Discussion.


transformation of the extent of the obligations still to be The Court was able to deduce that any treaty could be destroyed
performed. The change must have increased the burden by one party’s assertion that the treaty was no longer operative,

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thereby compromising the main goal the treaty seeks to achieve. It Procedure in Invalidation, Termination, etc.
may precisely be one of the objects of jurisdictional clauses of a
treaty to enable that matter to be adjudicated upon. Exclusive Grounds

Gabcikovo-Nagymaros Project Art. 42 suggests the exclusivity of the grounds for the suspension,
termination and invalidation of a treaty. If there will be any ground
Issue: outside the VCLT, it must either be a new CIL or stipulated
Was the change in the environmental norm considered a specifically in a treaty, otherwise an aggrieved party cannot
fundamental change in circumstance thus allowing Hungary to invalidate, suspend or terminate the treaty.
discontinue with the project?
General Rule:
The grounds invoked by Hungary as the circumstances that Should affect the whole treaty (Art. 44)

changed:
(1) Political and economic change of administration Exception:
(2) Economic viability If the treaty provides for a separability clause. In which case,
(3) Emerging environmental norms provisions not affected by the invalidation of the treaty will still
stand or remain binding between the parties.
Assuming that there was a fundamental change of circumstance in
the change of the environmental norm, it did not however prohibit Lex Specialis and Lex Generalis
them from performing their obligations of the project. The parties Although the VCLT provides for grounds of the suspension,
could have adjusted or changed their means in implementing the termination or the invalidation of a treaty, a special law, in the guise
project. of the treaty, may also be passed consisting of other grounds to
terminate or suspend the treaty. Meaning, such other grounds
The justices of the ICJ did not believe that the development of the must be provided for in the treaty
environmental norm radically altered the obligation of the parties.
More so, it was not considered by the ICJ as something which LEX SPECIALIS: When the parties provide for specific grounds in
cannot be foreseen. ICJ said that any development in international the termination, suspension or the invalidation of a treaty.
law is not something that is unforeseeable because it is a fact that
law develops. Therefore, changes in legal, social, economic, Without such specific provision, then the LEX GENERALIS
cultural system will not constitute fundamental change of (general law, as provided for in ART. 42 of the VCLT) shall apply.
circumstance.
Subject to Loss of Right
When may change of circumstances not be invoked as a ground
for termination? Instances where the state claiming ground for invalidation,
Ø If the treaty establishes a boundary
 termination or suspension of a treaty may be precluded from
Ø If the fundamental change is the result of a breach by the advancing the claim:
party invoking it either of an obligation under the treaty or Ø When a state has also contributed to the material breach
of any other international obligation owed to any other of the treaty (Doctrine of clean hands) 

party to the treaty.
Ø A State may no longer invoke a ground for invalidating,
VII. Emergence of new Jus Cogens (Art. 64) terminating, withdrawing from or suspending the
operation of a treaty under articles 46 to 50 or articles 60
Article 64, VCLT: and 62 if, after becoming aware of the facts:
‘If a new peremptory norm of general international law emerges, o It shall have expressly agreed that the treaty is
any existing treaty which is in conflict with that norm becomes void valid or remains in force or continues in
and terminates.’ The treaty does not, however, become void operation, as the case may be, or 

retroactively o It must by reason of its conduct be considered
as having acquiesced in the validity of the treaty
VIII. Outbreak of War (bilateral treaties) or in its maintenance in force or in operation, as
the case may be. 

Techt v Hughes
Eventually, it was ruled that because of the existence of war, some Procedure
treaties may no longer apply between the US and Austria-
Hungary. Notify in Writing of the Claim and Proposed Measure
A party which, under the provisions of the present Convention,
But the US court came up with a threshold as to when will this invokes either a defect in its consent to be bound by a treaty or a
apply. So if the treaty has something to do with national policy, ground for impeaching the validity of a treaty, terminating it,
national interest or national security, then it will be affected by the withdrawing from it or suspending its operation, must notify (in
outbreak of war between the two states. writing) the other parties of its claim.
But of course, if you go to the Vienna Convention on the law of The parties cannot just unilaterally terminate a treaty. They should
treaties, the severance of diplomatic or consular relations will not be given the chance to resolve their differences in a peaceful
automatically result in the termination or suspension of treaties. manner.
Only when the treaty involved would require the continuation of the
consular or diplomatic relations that necessarily the treaties will be Notification-summation process
terminated on account of the severance of diplomatic or consular Notification refers to the party notifying the other party of the
relations. breach and summation referring to the proposed measures – either

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to suspend or terminate the treaty. Sec 2, Art II, 1987 Constitution
The Philippines renounces war as an instrument of national policy,
The notification requirement is a CIL, but whether it should be in adopts the generally accepted principles of international law as
writing or not, that has not yet become a customary international part of the law of the land and adheres to the policy of peace,
law. But if the parties to the treaty are parties to the VCLT, then equality, justice, freedom, cooperation, and amity with all nations.
such notification must be in writing, as stated in Article 67.
Sec 21, Art VII, 1987 Constitution
The notification must contain at the very least: No treaty or international agreement shall be valid and effective
3. Its claim or grounds (is it a material breach, impossibility unless concurred in by at least two-thirds of all the Members of the
of performance, fundamental change of circumstance, Senate.
etc?)
4. the proposed measure. (it means whether the injured the Sec 5(2) (a), Art VIII, 1987 Constitution
party would want to suspend or terminate the treaty) The Supreme Court shall have the following powers:
a) Review, revise, reverse, modify, or affirm on appeal or
To summarize, the notification must be in writing, in an appropriate certiorari, as the law or the Rules of Court may provide,
instrument and signed by the head of state. final judgments and orders of lower courts in:
b) All cases in which the constitutionality or validity of any
Effect if no objection within 3 months treaty, international or executive agreement, law,
If there no objection within three (3) months from receipt of the presidential decree, proclamation, order, instruction,
notification, the claiming State may carry out the measure ordinance, or regulation is in question.
proposed, through a duly signed instrument.
Sec 18(7), Art XIII, 1987 Constitution
Within the 3-month period, the other party may either: The Commission on Human Rights shall have the following powers
Ø Object to the ground or proposed measure
If there is an and functions: Monitor the Philippine Government's compliance
objection, it will preclude the other party from with international treaty obligations on human rights.
implementing the proposed measure. Instead, it is
required to first seek pacific or peaceful means of dispute Sec 25, Art XVIII, 1987 Constitution
settlement as provided in Article 33 of the UN Charter. After the expiration in 1991 of the Agreement between the Republic
(i.e. arbitration, conciliation, mediation, good office, of the Philippines and the United States of America concerning
judicial settlement, etc.) military bases, foreign military bases, troops, or facilities shall not
be allowed in the Philippines except under a treaty duly concurred
If these pacific means still fail, the state must wait for a in by the Senate and, when the Congress so requires, ratified by a
period of 12 months, the state invoking the ground may majority of the votes cast by the people in a national referendum
now go to the ICJ unless by treaty or convention the held for that purpose, and recognized as a treaty by the other
parties have agreed to submit the dispute to arbitration. contracting State.

Objection may be based on the defense that the state EO 459 (Providing for Guidelines in the Negotiation of
denies the ground, or that the ground is not a material International Agreements and its Ratification
breach or that the act is a countermeasure, etc.
Distinguish International Agreement, Treaty and Executive
Ø Will not object Agreement.
There is no distinction in international law, for as long as they are
Urgent Countermeasure entered into between both states and is in writing, then it is
Ø one kind of countermeasure that dispenses with the considered an treaty (See Article 1, VCLT)
notification-summation requirement
Ø non-performance of the countermeasure will increase the However, in our domestic jurisdiction, all three are considered
prejudice or worsen the damage caused to the state as international agreements but differ procedurally.
intending to implement the counter-measure then a) Treaty – international agreements entered into by the
notification-summation may be dispensed with. Philippines which require legislative concurrence after
Ø State can directly use the countermeasure but still in executive ratification. 

compliance with the first 2 elements (previous IWA and b) Executive agreement – similar to treaties, except that they
proportionality must still be complied with) do not require legislative concurrence. 


Distinction between arbitration and mediation By nature, executive agreement if it is temporary in


Arbitration—panel of arbitrators decides who are chosen by the character and normally executed to supplement existing
parties treaties between two states

Mediation—mediator does not decide but only mediates on the Who decides if it is an Executive Agreement, Treaty or an
possible solution International Agreement?
The Secretary of the Department of Foreign Affairs has the
Philippine Practice competence to determine whether the agreement is an executive
agreement (to be submitted to the President for ratification) or a
Constitutional Provisions treaty (to be submitted to the President for ratification and Senate
for concurrence). Remember that the secretary is an alter ego of
Article I, 1987 Constitution president; the president can overrule the finding of the department
Provides the scope of the territory of the Philippines (principle of secretary. Meaning if the law says it is the DFA, it is actually the
territoriality) president.

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concur or not is a political question. The Constitution does not
Who shall represent the Philippines in the different states of treaty provide for conditions on concurring, thus full discretionary powers
formation? fully belongs to Congress.
Any person armed with Full Powers.

One of the oldest and most fundamental rules in international law
The following persons, however, shall not require Full Powers prior is pacta sunt servanda – international agreements must be
to negotiating or signing a treaty or an executive agreement, or any performed in good faith. “A treaty engagement is not a mere moral
amendment thereto, by virtue of the nature of their functions: obligation but creates a legally binding obligation on the parties. A
Ø Secretary of Foreign Affairs 
 state which has contracted valid international obligations is bound
Ø Heads of Philippine diplomatic missions, for the purpose to make in its legislations such modifications as may be necessary
of adopting the text of a treaty or an agreement between to ensure the fulfillment of the obligations undertaken.
the Philippines and the State to which they are accredited.
Ø Representatives accredited by the Philippines to an When the Philippines joined the UN as one of its 51 charter
international conference or to an international members, it consented to restrict its sovereign rights under the
organization or one of its organs, for the purpose of “concept of sovereignty as auto-limitation.”
adopting the text of a treaty in that conference,
Pimentel v. Romulo (2006)
organization or organ. 

Re: The power to ratify a treaty is vested with the President.
Who may issue Full Powers?
The signing of the treaty and the ratification are two separate and
The President of the President. However, he may delegate this
distinct steps in the treaty-making process. The signature is
function to the Secretary of Foreign Affairs.
primarily intended as a means of authenticating the instrument and
as a symbol of the good faith of the parties. It is usually performed
Entry into Force
by the state’s authorized representative in the diplomatic mission.
Ratification, on the other hand, is the formal act by which a state
When shall treaties enter into force in the Philippines?
confirms and accepts the provisions of a treaty concluded by its
A treaty or an executive agreement enters into force upon
representative. It is generally held to be an executive act,
compliance with the domestic requirements stated in this Order.
undertaken by the head of the state or of the government.
Executive Agreements
The power to ratify is vested in the President, subject to the
Ø All executive agreements shall be transmitted to the
concurrence of the Senate. The role of the Senate, however, is
Department of Foreign Affairs after their signing for the
limited only to giving or withholding its consent, or concurrence, to
preparation of the ratification papers. 

the ratification. Hence, it is within the authority of the President to
Ø The DFA, pursuant to the endorsement by the concerned Refuse to submit a treaty to the Senate or, having secured its
agency, shall transmit the agreements to the President of consent for its ratification, refuse to ratify it.
the Philippines for his ratification. 

Ø The original signed instrument of ratification shall then be Bayan v. Executive Secretary (2000)
returned to the DFA for appropriate action. 
 With regard to the ratification by the President of the VFA and the
exercise by the Senate of its constitutional power to concur with
Treaties the VFA, the Court, absent clear showing of grave abuse of
Ø All executive agreements shall be transmitted to the DFA discretion on the part of respondents, is without power to meddle
after their signing for the preparation of the ratification with such affairs purely executive and legislative in character and
papers. nature.
Ø The DFA pursuant to the endorsement by the concerned
agency, shall transmit the agreements to the President of With the ratification of the VFA, which is equivalent to final
the Philippines for his ratification. acceptance and with the exchange of notes between the
Ø The DFA shall submit the treaties to the Senate for Philippines and the USA, it now becomes obligatory, under the
concurrence in the ratification by the President. principles of international law, to be bound by the terms of the
Ø Upon receipt of the concurrence by the Senate, the DFA agreement.
shall comply with the provision of the treaties in effecting
their entry into force. The only limitation is grave abuse of discretion.

May the President refuse to submit a treaty to the Senate for its Act of State Doctrine: by virtue of the co-equality among states, no
concurrence? state can pass judgment upon the other state with regard the
Yes. The President may refuse to do so because treaty-making is state’s governmental act
a foreign affairs function and is executive in character. Thus, the
President cannot be compelled to ratify the treaty and submit the Bayan Muna v. Romulo (2011)
same to the Senate for concurrence. Re: Concurrence by the Senate is not required in executive
agreements.
Tanada v. Angara (1997)
Re: Concurrence by the Senate is a political question. The terms “exchange of notes” and “executive agreements” have
been used interchangeably, exchange of notes being considered
Facts: a form of executive agreement that becomes binding through
There was a petition to prevent the Senate from concurring from executive action. On the other hand, executive agreements
the President’s ratification of the WTO Charter. The grounds concluded but the President “sometimes take the form of exchange
invoked were provisions of the Constitution which were not of notes and at other times that of more formal documents
considered as self- executing. The Supreme Court said that no denominated ‘agreements’ or ‘protocols’. Concurrence of the
compulsion can be made because the question of whether to Senate is not required in executive agreements.

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Principle of Complementarity: a principle in the Rome Statute that
enables the parties to enter into agreements that complements the
mandate of the Statute

Under this principle, ICC can only exercise jurisdiction over the
case if the state concerned where the individual is found subject to
the prosecution is unable or at the very least unwilling to prosecute
the individual. If that is the case then it is only then the ICC can
acquire jurisdiction over the case

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TOPIC D (INTERNATIONAL LAW AND MUNICIPAL LAW) The domestic law can only be valid if it conforms to international
law.
Dualist v Monist; International Law v Municipal Law
So, to a monist, INTERNATIONAL LAW PREVAILS
What is Municipal law?
Municipal law is the technical name given by international lawyers If Dualism (you qualify)
to the national or internal law of a state.
Forum where case is filed
What are the two theories? If it has to be decided by an international court, then we can expect
Ø Dualist Approach—International law and municipal law that international law will be applied rather than municipal law. That
are two separate legal systems which exist independently is expected of an international tribunal. But it is not right to conclude
of each other 
 that if the case is to be decided by a municipal forum, it will always
apply municipal laws.
Ø Monist approach—Has a unitary perception of the ‘law’
and understands both international and municipal law as If the domestic forum follows monism, then it may apply
forming part of one and the same legal order 
 International Law over Municipal Law assuming the Municipal Law
involved is not the Constitution but only national legislation. But if
How will international law become part of our domestic legal the forum follows a dualist approach, then the domestic forum is
system? expected to apply Municipal Law over International Law
1. Incorporation—normally a way observed by monist
perspective. Because of the idea that this world is
governed by a single legal system. So in our case, GAPIl
ato tawag (generally accepted principles of law) 


2. Transformation—a byproduct of a dualist perspective. This


world is governed by two legal systems. Before an
international becomes part of the law of the land, it 
must
undergo a process of transformation. There are 3 ways:
1. legislature/legislative act
2. Executive act

3. Judicial act

If you are asked, in the Philippines which system is being


observed, we observed incorporation under article 2, we can adopt
transformation in various ways.

Strong and Weak Transformation


Strong— if there is only one method/way of transforming
international law into domestic law. And it is by legislation.

Weak—if it permits other means of transforming international law


into a domestic law. It is either by executive act or judicial act other
than legislative act.

Example:
Generally accepted principle of IL— they become part of the law of
the land via incorporation and treated similarly as statutes.

Treaty-based public international law (if the only way we are


bound is by virtue of a treaty entered into)—they become part of
the law of the land by virtue of sec 21 of 1987 constitution

When there is a conflict between international law and municipal


law, which should prevail?
The question requires levels of qualifications.

The main answer is dependent on the kind of theory adopted by


the states concerned

If Monism
There is only one legal system—international law. This thinking is
highly influenced by the natural law theory and under this theory,
each and every individual is endowed with the ability to determine
what is right and what is wrong. There is therefore the possibility of
the universality of a law.

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TOPIC E (STATES AND GOVERNMENT) Elements of “State”
1. Permanent population
When does determination of statehood become relevant? 2. Defined territory
3. Government
Determination of Statehood Scenarios (when discussion of 4. Capacity to enter into relations with other states
statehood become relevant)
(Art. 1, 1933 Montevideo Convention on the Rights and Duties of
Examples are when a portion of a territory has seceded, or when States)
there is foreign control over the affairs of an entity which claims to
be a state, or when states have formed a union but continue to Permanent Population
retain some autonomy, and when individual members of a
federation claim statehood. How many people are required?
There is no required number, so long as they are capable of
Ø Break up of a large state into several states (e.g. USSR, perpetuating itself through natural reproduction or migration.
former Yugoslavia, and Czechoslovakia in 1990’s) 

Ø Secession by part of a territory (e.g. Kosovo’s declaration Traditionally of course, continued existence of the population
of independence from Serbia in 2008) 
 would require the presence of both genders (male and female)
Ø Foreign control is exercised over the affairs of a state (e.g. because traditionally, population is continued by natural methods.
US’ control over the island of Palau in the Pacific Ocean But modern international law has accepted the possibility that
before 1994) population can actually be maintained not just by the natural
Ø Merger or Union og state (e.g. Egypt and Syria merged in continued existence of that group of people but also by migration
1958 to form the United Arab Republic and Syria then or other scientific means like cloning (but cloning is not yet
seceded from the UAR in 1961 and Egypt renamed itself generally accepted as per Sir).
Egypt) 

Ø Claims by constituents’ units or a union or federation to So, there is no requirement of the number of inhabitants or gender
the attributes of statehood (e.g. Separatist claims in under international law
Quebec) 

Defined Territory
Ø Territorial or non-territorial communities which have
special international status (e.g. Palestine’s “non-member
Take note, accuracy in the definition of the territory does not affect
observer state” of UN status in 2012) 

statehood. What is important is sufficient consistency of control
State v Government The control of territory is the essence of a state
State The control of territory is the essence of a state and this is the basis
Ø consists of government and other elements of state of the central notion of “territorial sovereignty”, establishing the
Ø bearers of rights and duties under international law exclusive competence to take legal and factual measures within
that territory and prohibiting foreign governments from exercising
Government authority in the same area without consent.
Ø agency through which the will of the state is formulated,
expressed and carried out Meaning of “Territorial Sovereignty”
It refers to the right to exercise in a territory the functions of a state,
Doctrine of State Continuity to the exclusion of any other state. It must be open in public.
State continues despite changes of government, people, and Discovery could only exist as an inchoate title, as a claim to
territory. establish sovereignty by effective occupation.
Doctrine of State Succession Bretch: So there must be some form of administration to the
Opposite of Continuity. When one state succeeds another, there is exclusion of all others. That is why when Tomas Cloma found the
now a change of sovereignty. There is already a change of legal Kalayaan Islands are now effectively controlled by the Philippines,
personality of a state, i.e. when a territory is ceded to another state. to comply with territorial sovereignty, Marcos issued a Presidential
How the state “governs” internally may be relevant in recognition Decree making Kalayaan Islands part of Palawan (administrative
of government issues
Because some states may not recognize powers to the exclusion of all others).
governments established by force. Some states may also
recognize a government based on its own criteria. How large must the territory be?
There is no requirement, there is not even a requirement that it be
Two theories of recognition: contiguous.
Ø Declarative Theory—objective evaluation of statehood. If
the four elements are complete, there exists a State. TN: Monaco has 1.95 sq. km., The Vatican City has 0.44 sq. km.
Recognition is immaterial. This is acknowledged by the
Montevideo Convention. 
 What if Territory is purportedly annexed by another State?
Ø Constitutive theory – Recognition of state is an additional Just like what happened to Kuwait in 1990 when it was forcibly
element of statehood. Not a well-accepted view. 
 annexed by Iraq, did it diminish the status of Kuwait as a State?

Recognition of State v. Recognition of Government No. It is not a norm or policy that a state’s status as a state will
Recognition of State does not necessarily mean recognition of diminish if occupied or forcibly annexed by another State.
government. Recognition of the State recognizes the presence of
the elements of a state. Recognition of the Government recognizes Must territory be contiguous
that the government has effective control over the territory of a Not necessarily (see USA and Alaska)
particular state.

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Island of Palmas Case
Here, discovery was simply considered as entitling the discovering
state with an inchoate right or inchoate title. Such discovery must
be followed by effective occupation. Thus, between mere discovery
on the part of Spain and the exercise of territorial sovereignty on
the part of the Netherlands, Max Huber favored exercise of
territorial sovereignty over mere discovery because it was
established in this case that Netherlands (Dutch government) had
already exercised territorial sovereignty which is the exercise of
governmental functions to the exclusion of all others

Territorial Sovereignty
The state must exercise a degree of governmental function to the
exclusion of other states which means there should be some form
of administration in the discovered territory.

Governmental functions may refer to policy and lawmaking and


implementation, and before you can do that there should be
people. Which is why countries in the past ask their people to
migrate to discovered colonies to occupy the land and so that it can
be administered in accordance to its own policy.

According to Max Huber, this is what Spain failed to do in the


Palmas Case. Spain may have discovered the Islands, but they did
not exercise effective sovereignty. Discovery will only give you an
inchoate right over the discovered territory.

Until when should the discoverer enjoy that inchoate right?


Such as when State A discovers a territory today, and the next day
State B wants to occupy it, can State A use force to drive away
State B claiming that State B discovered it first and that they have
inchoate right over it?

There is no fixed threshold for inchoate right, but thresholds


develop in PIL. In the past, it takes very long to travel and therefore
longer periods of time should be afforded the inchoate right.

Although it is highly improbable to discover new territory today, the


period of time for the inchoate right to be given today should be
shorter since travel is now fast and more sophisticated as per
Largo’s opinion

North Sea Continental Case


The threshold for defined territory is Sufficient Consistency of
Control. There is no rule saying that land frontiers of a state must
be fully delimited and defined. What matters is that a state
consistently controls a sufficiently identifiable core of territory.

To effectively comply with the territory requisite, there must be:


1. Sufficient consistency in the exercise of sovereignty over the
territory and that the
2. Authority must be exercised effectively.

Bretch: We have mentioned that North Sea Continental case is our


authority on the threshold that the territory should not be accurately
defined otherwise states will hardly exist by the mere expedient of
questioning or disputing frontiers or boundaries.

So it is not a good law or norm to say that for there to have a state,
its boundary or territory must be accurately defined. What is
required is sufficient consistency of control. Meaning, that the State
is undeniably under the effective control of the state concerned.

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