Notes for PUBLIC INTERNATIONAL LAW from the book of Fr.

Joaquin Bernas|Prepared by RESCI ANGELLI RIZADA, ADDU LAW | All Rights Reserved international law which such agreements intended for adherence by states generally and are in fact widely accepted. General principles common to the major legal systems may be invoked as supplementary rules of IL where appropriate.

Chapter 2 THE SOURCES OF INTERNATIONAL LAW

4. Domestic laws Can be found in statute books and collection of court decisions Problems with sources for international law 1. Absence of a centralized, legislative, executive and judicial structure 2. No single body able to legislate 3. No system of courts with compulsive power to decide what the law is 4. No centralized repository of international law 5. Exacerbated by anarchic nature of world affairs and competing sovereignties Sources of international law 1. FORMAL Refer to various processes by w/c rules come into existence Example: 1. Legislation 2. Treaty making 3. Judicial decision 4. Practice of states 2. MATERIAL Not concerned with how rules come into existence but rather with substance and content of the obligation; identifies what obligations are Also referred to as evidence of international law Example: 1. State practice 2. UN resolutions 3. Teaties 4. Judicial decisions 5. Writings of jurists

SUMMARY: 1. Custom 2. Treaties 3. Other international agreements 4. Generally recognized principles of law 5. Judicial decisions 6. Teachings of highly qualified and recognized publicists

I.
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CUSTOM OR CUSTOMARY INTERNATIONAL LAW

General and consistent practice of states followed by them from a sense of legal obligation 2 elements: 1. Material factor how states behave 2. Psychological or subjective factor why they behave the way they do A. MATERIAL FACTOR: practice of states or usus o usus actual behavior of states; initial factor to determine o Elements of usus: 1. Duration either long or short ; not the most important Case: THE PAQUETE HAVANA Customary law is the result of long, almost immemorial practice By an ancient usage among civilized nations, COAST FISHING VESSELS, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews from capture as prize of war. Here, fishing vessels of spain were exempted from capture by the armed vessels of the US. NORTH SEA CONTINENTAL SHELF CASE Pwede din naman short duration Provided state practice should have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. 2. Consistency State practice must be continuous and repetitive.

Doctrine of sources Lays down conditions for verifying and ascertaining existence of legal principles conditions - observable manifestations of the wills of states as revealed in the processes by which norms are formed treaty and state practice accepted as law process of verificaiton inductive and positivistic; process of finding what laws states have created and laws they are willing to be under Effect: international law is indeed characterized by INDIVIDUALISM Most widely accepted statement of the sources of International law ARTICLE 38 (1) OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE 1. The court, whose function is to decide in accordance with IL such disputes as are submitted to it, shall apply: a. International conventions, whether general or particular, establishing rules expressly recognized by contesting states b. International custom, as evidence of general practice accepted as law c. Generally accepted principles of law recognized by civilized nations d. Subject to provisions of article 59, Judicial decisions and works of the most highly qualified publicists of various nations, as subsidiary means for the determination of the rules of law. This provision shall not prejudice the power of the court to decide ex aequo et bono, if the parties agree thereto. OF FOREIGN

2.

Another statement: RESTATEMETN (THIRD) RELATIONS LAW OF THE UNITED STATES 1.

ASYLUM CASE, ICJ Rep 1950 About case of giving asylum victor raul haya de la torre of the American people s revolutionary party with a charge of military rebellion; Colombia and peru involved ICJ: against Colombia; the latter was not competent to qualify the nature of the offense by a unilateral and definitive decision which could bind Peru In this case, however, the Court held that Colombia was not able to prove the constant and uniform practice of unilateral right of refuge of a State and an obligation upon the territorial state. 3. Generality of the practice of states Practice need not be exactly the same throughout States; it only needs to be substantial.  Universality is not required. As a matter of fact, according to the Asylum Case, there are instances when a regional custom, or a practice present and binding only to a particular region, may arise.

A Rule of IL is one that has been accepted as such by the international community of states a. In the form of customary law; b. By international agreement; or c. Derivation from general principles common to the major legal systems of the world Customary international law results from general and consistent practice of states followed by them from a sense of LEGAL OBLIGATION. International agreements create law for the states parties thereto and may lead to the creation of customary

2.

3.

Notes for PUBLIC INTERNATIONAL LAW from the book of Fr. Joaquin Bernas|Prepared by RESCI ANGELLI RIZADA, ADDU LAW | All Rights Reserved NICARAGUA V. US Practice need not be in absolute conformity with the purported customary rule GR: conduct of states should be consistent with customary If inconsistent treat as breaches of the rule; not as indications of recognition of a new rule B. OPINIO JURIS sive necessitatis o is the belief that a certain form of behavior constitutes a legal obligation. According to Brierly, it is the recognition by States that a certain practice is obligatory and that it requires a conception that the practice is required by or consistent with prevailing international law. It means that a State abides by a practice because of a sense of legal obligation, as opposed to motives of courtesy, fairness, or morality o this is what makes practice and international rule o Humanitarian consideration by itself Is not OJ. o Customary law may develop w/c will bind only several states or even only 2 states; party claiming must prove that the other is bound. Cases: 1. 2. THE MARTENS CLAUSE(Fyodor Martens) what the clause does is to put the laws of humanity and the dictates of public conscience on the same level as usage of states or usus that even w/o practice or usus or at least w/o consistent practice, there can emerge a principle of law based on laws of humanity and the dictates of public conscience. One need not await for thousands of civilians to be killed before a ban becomes effective.

II.
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TREATIES OR INTERNATIONAL AGREEMENTS

decision of a mode of

They determine the rights and duties of states Binding force come from the voluntary sovereign states to obligate themselves to behavior. GR: generally binding only on the parties Exc: a number of contracting parties and the the acceptance of the rules can have the effect universal law

generality of of creating a

Are treaties, law or are merely obligations which the law says must be carried out? Distinction must be had between contract treaties or law making treaties . What is the relationship etween treaty and custom? Treaties can generally, but not always, serve as evidence of opinio juris. Does a treaty override custom? GR: they should be complementary. But if treaty and custom contradict each other? It depends. Situation 1: If a treaty was entered into after a custom has been established, it can be said that the treaty will govern as regards the parties who entered into it. This is so because, the State-parties ratification of that treaty is an expression of their consent to be bound by such, and the principle of pacta sunt servanda should be observed. Case: WIMBLEDON CASE, 1923 Although PCIJ recognized that customary IL prohibited belligerents from ferrying ornaments through a neutral state, court said that treaty of Versailles opened the Kiel Canal to passage to the vessels of commerce and of war of all nations at peace with Germany on terms of entire equality. Kiel canal (cut through germany lining the Baltic and North Sea) it has ceased to be an internal and national navigable waterway; use of it by others is left to discretion of that state; it has become an international waterway for the benefit of all nations of the world Situation 2: if a later treaty is CONTRARY to a customary rule that has the status of jus cogens CUSTOM WILL PREVAIL (Basis: article 53 of the Vienna convention on the law of Treaties) Situation 3: if a treaty was entered into before a custom develops which has the status of jus cogens, the rules are not clear. It would seem that custom, being the latter intention, should prevail. This, however, would run counter to the very nature of a treaty. In the Continental Shelf case, the court attempted to reconcile treaties with custom. In practice, therefore, the solution to this situation would be to reconcile custom with treaty provisions. ANGLO-FRENCH CONTINENTAL SHELF CASE, 1979 ISSUE: applicability of the equidistance principle in the delimitation of the continental shelves of the UK and France

Asylum not proven Right of passage over Indian Territory proven; right of Portugal to pass through Indian territory was recognized.

Would dissenting states be bound by custom? YES, unless they had consistently objected to it while the custom was merely in the process of formation. NOTE: Dissent protects only the dissenter and does not apply to other states. A state joining the IL system for the 1st time after a practice has become a law is bound by such practice ANGLO NORWEGIAN FISHERIES CASE A coastline delimitation rule of England is inapplicable to Norway in as much as Norway has always opposed any attempt to apply it to the Norwegian coast. After a practice has been accepted as law, may contrary practice arise? What effect would that have? 1. It can CAST DOUBT ON THE ALLEGED LAW. 2. It would note great uncertainty as to the existing customary law on account of the conflicting and discordant practice of states. . 3. it will have an unsettling effect on the crystallization of a still evolving customary law on the subject 4. overtime, if the contrary practice should gain general acceptance, it might instead become a law. (FISHERIES JURISIDCITON CASE; MERITS) What are the acceptable evidence of state practice? 1. Treaties 2. Diplomatic correspondence 3. Statements of national leaders and political advisers 4. Conduct of states NOTE: They do not constitute customary law undless characterized by opinion juris. What about opinion juris? It is a matter of proof. The burden of proving its existence fall on the STATE CLAIMING IT. NICARAGUA V. US Opinio juris was proven from the attitude of the parties and of states towards certain General Assembly resolutions Resolution 2625 which evince the principle of NON-USE OF FORCE Is there such a thing as INSTANT CUSTOM? YES. It comes about as a spontaneous activity of a great number of states supporting a specific line of action. This is not the product of constant and prolonged practice. (e.g. coalition of forces supporting the action taken by US vs. bin laden after the 9/11 attack; peculiar: object of defense was not an attack from a state but from a non-state organization) What is the concept of usus and opinion juris in humanitarian law?

III. GENERALLY ACCEPTED PRINCIPLES OF LAW

Generally accepted principles of law are principles of municipal law common to the legal systems of the world. (RESTATEMETN) Or are the general principles of law recognized by civilized nations (STATUTE) Said to belong to no particular system of law but are evidence rather of the fundamental unity of law. International tribunals must have recourse to rules typically found in domestic courts and domestic legal systems in order to address procedural and other issues. Notes from RESTATEMENT: 1. They avoid use of civilized nations 2. generally accepted principles of law are referred as supplementary rules of international law . They may be

Notes for PUBLIC INTERNATIONAL LAW from the book of Fr. Joaquin Bernas|Prepared by RESCI ANGELLI RIZADA, ADDU LAW | All Rights Reserved found in: a. Judicial decisions and b. The teachings of the most highly qualified publicists of the various nations Notes from STATUTE: 1. They are referred as subsidiary means for the determination of the rules of law ILLUSTRATIONS: 1. 1928 CHORZOW FACTORY CASE It is a general conception of law that every violation of an engagement involves an obligation to make reparation 2. Affirmation that private rights acquired under 1 regime does not cease upon change of government 3. Principle of estoppel Reason behind resort to general principles of law as source: This only affirms that there is no international legislative system. BARCELONA TRACTION CASE, 1964 If court decides and disregards municipal law, it would invite serious legal difficulties; it would lose touch w/ reality. What they refer to is GENERALLY ACCEPTED RULES BY MUNICIPAL SYSTEMS and not the municipal law of a particular state. equity falls under Generally Accepted Principles of Law which, under Article 38 of the Statute, is a valid source of international law. The principle of equity was applied in the case of Netherlands v. Belgium. NET HE RLA ND S V B ELGI UM Basically, what the Court held in this case, was that Netherlands cannot claim nor can Belgium counter-claim when both of them come to court with unclean hands, Netherlands having built a lock, and Belgium having built canals obstructing water flow of the Meuse River. What do we mean by equity? It is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice. It hs both procedural and substantive aspect. PROCEDURALLY means a mandate given to judge to exercise discretion in order to achieve a determination that is more equitable and fair What are the different kinds of equity? 1. INTRA LEGEM (within the law) law is adapted to the facts of the case 2. PRAETER LEGEM (beyond the law) Law is used to fill the gaps within the law; 3. CONTRA LEGEM (against the law) a refusal to apply the law which is seen as unjust. OTHER SUPPLEMENTARY EVIDENCE (OTHER SOURCES OF INTERNATIONAL LAW) 1. U.N. RESOLUTIONS UN Resolutions have NO binding effect, but can only serve as evidence of customary international law. They are generally considered RECOMMENDATORY. But if supported by all states, they are an expression of OPINIO JURIS COMMUNIS. As a general rule, UN Resolutions are NOT binding. Then what purpose do they serve in the international community? At most, they serve as highly persuasive evidence of the States consent to the subject of the Resolution and may therefore be evidence of customary law. Exception: There are certain UN Resolutions that are binding, depending on the subject of the Resolution. When made under Article VII of the UN Charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) of the Charter, resolutions are binding. Example: UN SC Resolution 167415 2. SOFT LAW They call this as non-treaty agreemetns0 These are international agreements not concluded as treaties but are actually practiced with consistency and uniformity. They have not, but are in the process of, achieving the status of custom. Not covered by the Vienna convention on the Law of Treaties Preferred because it is simpler and more flexible foundation for future relations Sources: 1. Admininstrative rules which guide the practice of states in relation to international organizations 2. Mostly admin procedures carried out with consistency and uniformity that may ripen eventually to customary law Example: duty to protect the environment

IV.
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JUDICIAL DECISIONS
Judicial decisions are applied as subsidiary means for the determination of the rules of law. However, decisions of the corut have no binding force except between parties and in respect to that particular case. Hence, decisions do nto constitute stare decisis.

THERE IS NO STARE DECISIS IN INTERNATIONAL LAW. This is so because first, the ICJ only derives its jurisdiction from the consent of the State- parties coming before it, and submitting themselves to the jurisdiction of the Court. Without this consent, the ICJ has no jurisdiction at all to determine the rights and obligations of States. Second, Article 59 of the Statute expressly provides so. Therefore, the effect of this would be that State-parties cannot oblige the court to decide on their case in the same manner that the Court decided in previous similar cases. At most, these decisions are highly persuasive but not binding upon the Courts. If there is no stare decisis, then why would we still need to look at previous decisions of the ICJ? Why do we still study them if they have no effect on future decisions anyway? Because it s convenient.Since past ICJ cases have already been decided, laws have already been interpreted and facts already appreciated, there is nothing precluding the ICJ from looking into these past decisions for purposes of assisting them in resolving cases before the court. How are ICJ decisions regarded? 1. Regarded as highly persuasive in international law circles 2. They have contributed to the formulation of principels that have become IL 3. ICJ is the source of principles recognizing the international personality of international organizations

V.

TEACHINGS OF HIGHLY QUALIFIED WRITERS AND PUBLICISTS

MHQPs are generally authorities such as writers and publicists. There is really no specific qualification, but the acceptance of the writings of these MHQPs depend on the judges themselves and the court s tradition. Examples of MHQPs: 1. International law commission (organ of the UN) 2. Institute de droit international 3. International law association 4. (revised) restatement of foreign relations Law of the US 5. Annual publication of the Hague academy of IL

VI.

EQUITY AS A SOURCE INTERNATIONAL LAW

OF

The court is not precluded from applying equity as part of international law, when the needs of justice so require. Note that