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Public International Law (Atty.

Daryl Largo Discussion) 1

402 (A.Y. 2017-2018)

Public International Law international crime;

Note: Atty. DBL’s method of discussion is to discuss the topic international- between 2 or more state;
based on the outline while sometimes straying away and non-international- between regular forces of state and
discussing some related topics that may be discussed further in another organized group within the same state. It must be
the next topics. So, bear with these discussion notes if it may an organized group.
discuss “strays” to the main heading. Thank you!
Remember, it is not international if there is no third state
Rubric for Graded Oral Recitations: involved or another state involved EXCEPT in the case of
30% Ability to Comprehend the Question an organized armed group exercising the right to self-
30% Ability to Spot Legal/ Factual Issues organization. An organized armed group which is
30% Ability to apply the relevant law and precepts recognized and fighting, it may be called a national
10% Communication Skills liberation movement. A national liberation movement is a
group exercising the right to self-organization
What is a high contracting party to the Geneva convention?
Public International Law is an evolving concept 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
killing a non-combatant will not be considered an with each other.

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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.
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-
- 2 elements: equality of states, precisely no state can interfere or intervene with

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the affairs of the other because of the principle of co-equality. So Public International Law vs. Private International Law
this treaty of Westphalia introduced us to the concept of
sovereignty of states and co-equality of states. How are they different?
Public International Law governs the activities of states and other
1789- Birth of the term “international law” international persons/ entities in relation to each other (what their
It was Jeremy Bentham who coined the term “international law” duties, rights and obligations are).
replacing the old, classical term “law of nations”.
Private International Law resolves “conflict of laws”. It does not
1863- Lieber Code govern relationships between states but rather it governs what type
It was created by Abraham Lincoln. It has been considered as the of law will be applied to a particular legal controversy (when there
document that governs the conduct of war. This was because of is a foreign entity involved— “which law is applicable in a particular
the Civil War in the US where the southerners wanted to separate controversy?”)
from the union (which resulted to Southern vs Northeren states and
so the civil war erupted). Lincoln ordered his friend, a German How is it possible that a court resolves a controversy using foreign
National who had mastered military law to draft a code that will laws?
govern the conduct of war. It was called the Lieber Code, from the Generally, when activities of individuals, corporations and other
author’s last name, Lieber. It contributed a lot to international private entities when they cross national borders and in
humanitarian law on the rules of the conduct of war. controversies involving foreign element. The moment a foreign law
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
1949) What are subjects of international law?
Those that enjoy international legal personality and being capable
1922-1946- Permanent of Court of International Justice (PCIJ) of of possessing international rights and duties, including the right to
the League of Nations, then replaced by the International Court of bring international claims.
Justice (ICJ) of the UN
Difference of subjects and objects of international law
Relevance of the PCIJ Subject is the bearer of rights with the power to maintain and
PCIJ decisions are still found in the ICJ website. The PCIJ was pursue such rights. Object is not the bearer of rights nor can pursue
short lived. It was then replaced by the ICJ which of course was claims. The difference lies in international legal personality (see
the court or tribunal under the auspices of the UN which of course ICJ Advisory Opinion)
replaced the league of nations.
What are the remedies of objects of international law?
1948- UN created the international law commission or the ILC Aggrieved parties may go to their respective government and
(tasked to codify international law) address the issue for the state itself to espouse its claim since it is
only states who can appear before the ICJ. This is called “Espousal
What is the contribution of the international law commission? of Claim” (“Diplomatic Protection” is the term more accepted in
The international law commission is a specialized body of the UN international law).
tasked to codify international law. For example, the UN initiates a
convention, the one good example of this is the Vienna Convention What is Diplomatic Protection?
on the law of treaties or the VLCT of 1969 which entered into force It is when a state lodges a complaint because of an injury suffered
in 1980 upon the establishment of a convention, you will note that by its national in the territory of the other state. The state must
before it had been established, before ratified and signed by states establish nationality (as taken in PIL)
that undergone deliberations, discussion and so there is what we
call preparatory works to a particular convention and normally the What is functional protection?
international law commission will be asked to prepare the evidence It is when an international organization lodges a complaint. There
of this preparatory works and therefore the interpretation of the is no need to establish nationality. The reason is it cannot perform
International Law commission would be very helpful in interpreting certain functions or it cannot function effectively to make the
treaties. The observation therefore of the international law organization function without giving it personality.
commission would be very helpful in interpreting conventions or
treaties Just and Fair Treatment of Aliens
It is the minimum standard required. So the moment a foreigner is
19th, 20th centuries - the increase in global trade, armed conflict, admitted in a foreign soil, that state is required by CIL to afford the
environmental deterioration on a worldwide scale, awareness of foreigner a just and fair treatment. Treating the alien with
human rights violations, rapid and vast increases in international discrimination on the basis of nationality without any justification
transportation and a boom in global communications saw the becomes a violation of this right of the state to which the person
importance and usefulness of PIL, which at this time began to discriminated is a national of. It becomes an “internationally
establish new and modern areas in international law (trade and wrongful conduct”. This presupposes responsibility on the part of
investment, technology, human rights, environment, space, etc.) the wrongful state. But, because the individual herein is just an
object of this claim, he will have to go to his state to espouse his
The 19th and the 20th centuries of course saw the emergence of claim in the process of diplomatic protection.
new areas in PIL why? This was the beginning of modernization,
globalization and so therefore activities of men got complicated as Reparation for Injuries Case (ICJ Advisory Opinion, 1949)
early as 19th century so there was a need also to acknowledge
that there should be some norms governing this emerging areas in Note: ICJ can give advisory opinions unlike our SC. The tripartite
the activities of states. system of government is not present in international law.
Therefore, it is okay for the ICJ to give advisory opinions. In fact, it

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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 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 those practices of states whose interest is affected. We call this as
as defined under Article 1. “relevant state practice.

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

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

legal transactions. They resemble contracts (reciprocal). The
observance of the contract depends on both contracting parties Asylum case
(performance of one depends on the other’s) and their willingness Following an unsuccessful rebellion in Peru in 1948, an arrest
to observe. These are non conduct-forming treaties. warrant was issued for one of the leaders of the rebellion (Haya de
La Torre), a Peruvian national. He sought and was granted asylum
Custom by Columbia in its Peruvian Embassy. Colombia sought, but Peru
Article 38(1) ICJ Statute: “as evidence of a general practice refused, to provide a “safe conduct” for Haya de La Torre from the
accepted as law” country.

Section 102, Restatement (Third): “CIL results from a general and Colombia requested the ICJ to rule that it (Colombia) as the state
consistent practice of states followed by them from a sense of legal granting asylum was the country competent to characterize the
obligation” offense as political for purposes of asylum. Colombia based its
submission on treaty and “American international law in general”
Why is it called objective element? or regional or local custom peculiar to Latin American states.
It is something we can assess objectively through consistent state
practice. So basically, this is easy to determine that state practice What is the name of the Peruvian national?
does exist because it can be shown overtly through evidence. Haya dela Torre

What is your understanding of subjective element? Did Haya go to Colombia?

It is the mental evaluation or behavior of the state that they have to No, only the Embassy of Colombia in Peru
follow such with the belief that it is legally binding. This is more
difficult to find evidence for since it is a mental evaluation. How relevant is this case in the principle of Customary law?
The burden of proof lies with the party alleging the existence of the
Paquete Habana Case custom. It must demonstrate that the custom relied upon was
There was the US-Spain war. Fishing vessels that were unarmed established in such a manner so as to become binding on the other
were captured by the US as prizes of war. The fishing vessels were party. An alleged regional custom demands greater uniformity in
just out there purely fishing which is regarded as a pure practice than a general custom.
commercial act. There was no domestic law in the US that
recognized the norm that fishing vessels are exempt from being There is no requirement of universality but there is such a
captured as prizes of war. Apparently, however, US is adopting the requirement of uniformity. The level of uniformity will vary
incorporation clause. The Court found CIL truly exempting these depending on the nature of international law whether it is universal
fishing vessels from being captured, as evidenced by their or regional.
consistent state practice. In this case, state practice was evidenced
by previous treaties, and official acts made by the US and other If it is regional customary international law, a higher threshold of
states in relation to capturing of prizes of war (Note: For Recits, uniformity is required in order to convince a tribunal that there
name the evidence of state practice). All of this evidence point to exists such customary international law. There is no formula on
official acts that evidence this CIL. how much greater the threshold is required. It cannot be quantified.
It all depends on the circumstances of the case.
So how do we assess that the practice does exist?
There is no specific threshold in determining generality. The state What was the issue about?
practice must be extensive and virtually uniform but recount only The problem is this, Colombia granted asylum because according

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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,
and generality requirements) 
 Relevant state practice doctrine
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.
Germany argued back that such principle cannot be a CIL in Lotus case
such a short period of time (1958-1964) Lotus, a French steamer, and a Turkish steamer, collided on the
high seas. The Turkish steamer sank and eight Turkish sailors
died. The French officer (Monsieur Demons) on watch of the Lotus

Public International Law (Atty. Daryl Largo Discussion) 8
402 (A.Y. 2017-2018)

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.
2. The objection must be consistent.

In the case at bar, Iceland contended that it was the technique in
Note: It cannot be that you objected 50 years ago and the next time fishing which resulted to overfishing which was considered a

Public International Law (Atty. Daryl Largo Discussion) 9
402 (A.Y. 2017-2018)

fundamental change in circumstance.

ICJ said that the change in the technique in fishing cannot be

considered a fundamental change of circumstance because it had
nothing to do with the obligation of the treaty, which is to submit to
the jurisdiction of the ICJ. Thus, any change in the technique of
fishing did not affect the jurisdiction of the ICJ.

Key Principle:
Article 62 of the VCLT, relating to termination of a treaty because
of a fundamental change in circumstance (“rebus sic stantibus”).
Represented a codification of existing CIL. In the case, there was,
however no evidence of such “fundamental change” in the fishing
techniques that resulted to what Iceland called overfishing in the
Icelandic coast. In any case, such fundamental change doctrine
may only affect the merits of the case, but not as to the issue of
whether the ICJ will have JD over subject matter.

BASICALLY, the value of this case is to know that rebus sic

stantibus is part of CIL, along with the principle enunciated in the
Advisory Opinion on the Use of Nuclear Weapons.