RELATIONS BETWEEN TCHAPTER 2 THE NATURE OF INTERNATIONAL LAW

International law body of rules and principles of action w/c are binding upon civilized states in their
relations with one another
-body of general principles and specific rules w/c are binding upon the members of the international
community in their mutual relations
CONSISTING OF THOSE RULES OF CONDUCT w/c reason DEDUCES as consonant to justice
from the nature of the society existing among indep states : w/ such definitions and modifications as
may be est by general consent
sum of rules of conduct observed by the various nation in their relations w/ one another = the
sum of mutual obligations of the states ie the duties w/c they must perform and the rights w/c
they must defend with respect to one another
consists of certain rules of conduct w/c modern civilized states REGARD AS BEING bindiing
on them in their relations w/ one another w/ a force comparable in nature and degree to that
binding the conscientious person to obey the laws of his country and w/c they also regard as
being enforceable by appropriate means in case of infringment
the body of principles and rules w/c civilized states consider as bindingupon them in their
mutual relations ; rets upon consent of sovereign state
consists of rules and principles of general application dealing w/ the conduct of states and of
international org and w/ their relations inter se as well as w/ some of their relations w/ persons
whether natural or juridical.
PRES OF ICJ ROSALYN HIGGINS : normative system harnessed to the achievement of
common values values that speak to us all, whether we are rich or poor, black or white of any
religion or none, or come from countries that are industrialized or developing
states are sole actoRSsin diplomatic matters and conduct of war
IN THE P AST STATES
sovereign states principal subj of international law + organizations + indv (natural or juridical)
RESTATEMENT ( third) of foreign relations law With the conduct of states and of international
of the us
organizations and with their relations inter se, as
well as with some of their relations with persons
whether natural or juridical

includes relations not only

SFE
SCOPE OF INTERNATIONAL LAW
revolutionary : new subj of international law are being recognized, non-western states are
flooding into the community of nations, political and social principles are changing,
international org are asssuming new roles
factors : rapid changes in tech, multiplication of no of states w/ differing backgrounds, and
achieving loose forms of corp , fear of war, rising demands of social reform
regulation of space expeditions, the division of ocean floor, the protection of human rights, the
management of the international financial system and regulation of the env.
COVERS ALL THE INTERESTS OF THE CONTEMPORARY international law and domestic

life
THERE IS NO LAW binding sovereign states
there exists no international legislative body
GENeRAL ASSEMBLY OF UN's resolutions are generally not binding on anybody

* THERE IS no international executive security council intended to be it but harmstrung

by veto power
NO CENTRAL AUTHORITY that make judgmetns binding on states INTERNATIONAL COURT OF JUSTICE : can bind only when states consent to be
bound
NATIONAL POLICY OR INTEREST IS PREFERRED OVER INTERNATIONAL
LAW
problems in enforcing international law :
there is no assured procedure for violation
ALL THE UN CAN DO IS CENSURE
INTERNATIONAL LAW IS NOT A LAW NOT TRUE LAW: thomas hobbes, samuel pufendorf, and john austin
SANCTIONS for failing to comply although often less direct are similar to those of municipal law
they include the force of public opinion, self-help, intervention by 3rd party states, the sanctions of
international organizations un , and last resort war
reality is social interdependence and the predominance of the general interest
states are bound by many rules not promulgated by themselves
henkin : ALMOST ALL NATIONS OBSERVE almost all principles of international law and almost
all principles of international law and almost all of their obligations almost all of the time
brierly : the ultimate explanation of the binding force of all law is that man is constrained in so far as he
is a reasonable being, to believe that order and not chaos is the governing principle of the world in
which he lives
FINAL ENFORCER is power , fundamentally there is a general respect for law bec of the possible
consequences of defiance either to oneself or to the larger society
MAIN SCHOOLS OF INTERNATIONAL LAW :
a. natural law school - there are certain normative principles or postulates that are true or self evident
and wc exists independently of their codification or enforcement by human beings
ex. aristotelian SCHOLASTICISM espoused by medieval and renaissance roman catholic legal
scholars
b. positivist school norms are valid only insofar as they have been created according to a definite and
discernible rule
ALL norms are traced back to an ultimate rule according to w//c the norms of this order are est and
annulled receive or lose their validity
-ARRANGE ALL NORMS hierarchically in their relation to their ultimate rule
LAW IS INDEP OF MORALITY
ex. protestant philosophers of enlightenment vattel kant hegel KELSEN DWORKIN hart
c. eclectic or groitan school - INTERNATIONAL law is in part a product of natural law and at
the same time the positive consent of the states to be bound by the rules

BASIS OF INTERNATIONAL LAW:

a. direct consent - IN ABSENCE OF ANY form of international legislature, competent to enact law
after the manner of the legislature of democratic states
INTERNATIONAL LAW : based upon the direct consent of states upon their indv acceptance of its
principles and rules
B. IMPLIED CONSENT a fiction to account for the acceptace of the great body of general principles
and specific rules that hd come to form the body of the customary law
c. mutuuality of interest subj law; its binding force depended upon mutuality of interest, w/c
could only be maintained by altering from time to time such rules as it might no longer to the
interest of the parties to observe
d. necessity - THE FACT THAT nations have common interests constitutes the actual community
of states and at the same time imperatively demands a rule of law;
may be based upon the very necessity for its existence
international comity rules of politeness, convenience, and goodwill observed by states in their mutual
intercourse w/o being legally bound by them
NEIGHBORLINESS , MUTUAL RESPECT AND the friendly waiver of technicalities are involved
and the practice is exemplified by the exemption of diplomatic envoys from custom duties
RULES OF COMITY dev into rules of customary international law over a long period .
THEORIES ABOUT INTERNATIONAL LAW
1. COMMAND THEORY ( john austin)

Theory of legal positivism

The three basic points of Austin's theory of law are that:
the law is command issued by the uncommanded commanderthe sovereign;
such commands are backed by threats of sanctions; and
a sovereign is one who is habitually obeyed

: LAW consists of commands originating from a sovereign and backed up by threats of sanction if
disobeyed
INTERNATIONAL LAW IS NOT a law BEC IT DOES not coime from a command of sovereIGN .
Neither treaties nor custom come from a command of a sovereign
DISCREDITED
REALITY : nations see international law not as command but as principles for free and orderly
interaction
2. CONSENSUAL THEORY : INTERNATIONAL law derives its binding force from the consent of
states
treaties are an expression of consent
custom : voluntary adherence to common practices is seen as an expression of consent
reality many binding rules w/c do not derive from consent
natural LAW theory : law is derived by reason from the nature of man
international law : application of natural reason to the nature of the state-person
ex. CUSTOMARY LAW AND generally accepted principles of law
DISSENTERS SEE NO OBJ BASIS FOR INTERNATIONAL LAW : only combination of

politics ,
* morality and self-interest smokescreen of legal lang
PRAGMATIC : there is general respect for law and concern about the consequences of defianc
either to oneseld or to the larger society
INTERNATIONAL LAW : seen as such by states and other subj of international law
PUBLIC AND PRIVATE INTERNATIONAL LAW
PUBLIC
PRIVATE INTERNATIONAL LAW
Relationships between and among states and also
their relations with international org and indv
persons

Domestic law w/c deals w/ cases where foreign

law intrudes in the domestic sphere where there
are questions of the applicability of foreign law or
the role of foreign courts
SELECS bet conflicting municipal systems of law
to regulate the relationship between persons

Focuses on conduct of indv corp and other private

entities
INDV had no role in the process which resolved disputes bet states except as rep of the states
such as diplomats or naval officers
CLASSICPLAYER : SOVEREIGN BODY OF THE NATION : pres, prime minister, king or
queen , OR BUREAUCRATIC rep : state dep, foreign ministry, military etc
each sub-unit of GOV has some ability to create international law: EXECUTIVE BRANCH
may sign treaty but pres ratifies it w/ the advice and consent of the senate and the congress as a
whole MAY PASS laws implementing it
ADMIN AGENCIES can make and enforce regulations implementing the treaty and the
statutes , and the courts can interpret any of the above and use non-treaty related international
law as an exercise of their judicial power
UNITED NATIONAS and the european union have become extremely important as forums for
creating international law
IN MID 20TH CENTURY : international law as primarily of custom

HISTORY OF INTERNATIONAL LAW

ancient law to the league of nations
ANCIENT international law governed exchange of diplomatic emissaries, peace treaties etc in the
world of ancient romans and even earlier
JEWS romans syrians and spartance
JUS GENTIUM : common to all men became the law of roman empire
MEDIEVAL AGES : governing principles were derived from roman law or canon law which in turn
derived from natural law
(ALBERICO GENTILI de jure belli
Fr ANCISCO DE VITORIA
francisco suarez
samuel pfendorf - DE JURE NATURAE gentium
emmerich de vattel - THE LAW OF NATIONS ) natural law
hugo grotius - FATHER OF MODERN INTERNATIONAL LAW :
DE JURE BELLI AC PACIS ( concerning the law of war and peace) : LAW OF NATIONS
natural law prescribes rules of conduct for nations as well as for private indv

 DID Not condemn war as an instrument of national policy, he maintained that it was criminal
to wage war except for certain causes
ATTEMPT to make the conditions of warfare more humans by inducing respect for private
persons and their property
international law : jeremy bentham
POSITIVIST APPROACH : law based on what actually happened in the conflict between states
VIEW OF LAW as commands originating from a sovereing and backed up by threats of sanction if
disobeyed
-international law is not a law bec it does not come from a command of a sovereign
neither treaties nor custom come from a command of sovereign
A. THE PEACE of westphalia -ended 30 yrs war : PEACE COOPERATION pacta sunt servanda
b. congress of vienna ended the napoleonic wards MULTILATERAL POLITICAL AND
ECONOMIC COOPERATION
C. COVENANT OF THE LEAGUE OF NATIONS : treaty of versailles which ended wwi
WWI the victors decided to create an institution designed to prevent the recurrence of world
conflagration
1. LEAGUE OF NATIONS WAS born
- 43 states : india, canada, south africa, australia and new zealand, us not included
CREATED the permanent court of international justice
FAILED TO PREVENT WWI
formulatin of a new avenue for peace became the preoccupatoin of the victors
2. un BORN SHIFT POWER AWAY from europe and beginning of a truly universal institution
ADVANCED by decolonization w/c resulted in the expansion of membership in the un
NEWSTATES carrying a legacy of bitterness against colonial power members
three major groupings :
a. western states : SOMEREMAINED SATISFIED W/ STATUS QUO while others were more
open to 3rd world demands and supported by social and legl change
INTERNATIONAL LEGISLATION INSISTED ON 2 POINTS :
* legal provisions must be clear and precise
* any substantive rule must be accompanied by an implementation mechanishm that can
spot and correct violations
b. socialist states: soviet union : SOCIALIST CAMP sought to avert western intrusion into
domestic affairs even as they sought relatively good relations w/ the west for the sake of
economic and commercial interchange
SOUGHT TO CONVERT developing nations to their ideology
C. developing countries : former colonies suffering from underdevelopment together w/ newly
industrializing countries phil malaysia thailand singapore and south korea who had earned their
independence through armed or political struggle while remaining under the influence of
western or socialist ideas
- VEERED AWAY FROM ideological orientation and towards market orientation instead and
towards fighting poverty and backwardness
3. COLD WAR PERIOD SUCCEEDED IN MAINTAINING peace through the balancing of
2 super powers US AND SOVIET UNION
4. dissolution of the soviet union RESulted IN THE END OF THE COLD WAR WITH the

re-emergency of international relations based on multiple sources of power and not mainly on
ideology
* BALTIC STATES -statehood
* yugoslavia : collapsed and fragmented
RUSSIAN FEDERATION did not inherit the soviet union's positions as a superpower
ONLY 1 POWER us politically and ideolofically leading the western stattes : AS WORLD
POLICEMAN AND GLOBAL MEDIATOR
d. socialist countries are no longer united w/ some of them depending on the support of westn states
un : SEEMS to have declined as an international agency for the maintenance of peace
CHAPTER 2 THE SOURCES OF INTERNATIONAL LAW
: * ABSENCE of a centralized legislative executive and judicial structure there is no single body able
to legislate and there is no system of courts w/ compulsive power to decide what the law is nor is there
a centralized repository of international law
PROBLEM of finding out where the law is
CONSTITUTION OF THE PHIL provide with reference to international law
: DOCTRINE OF INCORPORATION OR APPLICABILITY of international law 1987 Constitution
provides that it adopts the generally accepted principles of international law as part of the law of the
land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all
nations
ARTICLE vii sec 21 : no treaty or international agreement shall be valid and effective unless
concurred in by atleast 2/3 of all the members of the senate
ARTICLE VIII sec5 AS TO THE STANDING OF international agreements vis-avis the constitution :
SC SHALL have the power to review the constitutionality or validity of any treaty , international or
executive agreemnt
COMPLIANCE w/ international treaty obligation on human rights : constitution has created a
commission on human rights to monitor the phil govs compliance w/ international treaty obligations on
human rights ARTICLE XIII SEC 18(7)
foreign bases or troops may be allowed? Article xviii sec 25 : foreign military bases, troops , or
facilities shall not be allowed in the phil except under a treaty duly concurred in by the senate, and
when the congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting state
SOURCES: treaties, customary law, case law, academic writings, general principles of law
formal sources - REFER TO various processes by w/c rules come into existence
EX. LEGISLATION formal source of law, TREATY MAKING AND JUDICIAL
DECISION making, practice of states
material sources : NOT CONCERNED with how rules come into existence but rather w/ the
substance and content of the obligations
THEY IDENTIY WHAT THE OBLIGATIONS ARE
state practice , UN RESOLUTIONS treaties judicial decisions and writings of jurists are
material sources in so far as they identify what the obligations are EVIDENCE of
international law
DOCTRINE OF SOURCES : lays down conditions for verifying and ascertainign the existence
of legal principles
conditions are observable manifestations of the wills of the states TREATY AND STATE
PRACTICE accepted as law
PROCESS of verification is inductive and positivistic : process of finding what laws the states

themselves have created and what laws they are willing to place themselves under
MANIFESTATION offact that international law is characterized by individualism
SOURCES of international law: article 38(1) statute of the international court of justice : does
not speak of sources
ARTICLE 38 primarily a directive to the court on how it should resolve conflicts brought
before it :
a. international conventions : general or particular est Rules expressly recogznied by
contesting states EG VIENNA convention on the law of treaties
b. internatonal custom evidence of general practice accepted as law eg prohibition against
genocide, torture, slavery, crimes against humanity
c. general principles of law : recognized by civilized nations EG pacta sunt servanda, res
judicata, due process
d. art 59 : judicial decisions and teachings of the most highly qualified publicists of the
various nations , as subsidiary means for the determination of rules of law
EG. DECISIONS OF ICF and municipal tribunals dealing with matters of international law
AND TEACHINGS OF THE most highly qualified publicists of various nations - HUGO
grotius, lassa francis lawrence oppenheim , hersh lauterpacht, hans kelsen
This provision shall not prejudice the power of the court TO DECIDE ex aequo et bono IF
THE PARTIES AGREE THERETO art 38 declaration by states THAT these are the laws
under w/c they are willing to be bound

CUSTOMARY international law - EVIDENCE.. if sufficiently widespread and consistent

IN ABSENCE OF A TREATY governing the relations bet 2 or more states on a particular subj
SOURCES:
diplomatic correspondence
opinions of official legal advisers
STATEMENTS by gov
resolutions of the un general assembly
comments by gov on drafts produced by the international law commission
decisions of national and international courts
( WITH ALL MATTERS OF EVIDENCE WEIGHT can be given to a particular statement varies
greatly depending on the circumstance in w/c it was made)

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UN says:

1. a rule of international law 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. by derivation from general principles common to the major legal systems of the world
2. CUSTOMARY international law results from a genral and consistent practice of states
followed by them from a sense of legal obligation
3. international agreements create law for the states parties and may lead to the creation of
customary international law which such agreements are intended for adherence by states
generally and are in fact widely accepted
4. general principles common to the major legal systems even if not incorporated or reflected in
customary law or international agreements may be invoked as supplementary rules of
international law where appropriate

SOURCES: CUSTOM TREATIES AND OTHER INTERNATIONAL agreements generally

recognized principles of law judicial decisions and teachings of highly qualidied and recognized
publicists
CUSTOM OR CUSTOMARY LAW : general and consistent practice of states followed by them from a
sense of legal obligation
2 BASIC elements of custom :
a. material factor - that is how states behave
PRACTICE OF STATES OR USUS
ELEMENTS:
DURATION (DIUTURNITAS) can either be short or long
ex. result of long almost immemorial practice the paquete havana ON THE
EXEMPTION OF FISHING VESSELS FROM CAPTURE AS PRIZE OF WAR
(2 MOST IMPORTANT) :CONSISTENCY CONTINUITY AND
REPETITION laid down in asylum case P. 12
uniformity generalityof the practice of states NEED NOT BE COMPLETE
BUT SUBSTANTIAL
nicaragua vs us : US practice need not be in absolute conformity with the
purported customary rule : THE conduct of the states should in general be
consistent with such rules and that instances of state conduct inconsistent w/ a
given rule should generally have been treated as breaches of that rule not as
indications of the recognition of a new rule
NORTH SEA CONTINENTAL SHELF CASES : short duration will not exclude the possibility of a
practice maturing into custom provided that other conditions are satisfied
b. subjective factor why they behave the way they do
DO STATES BEHAVE the way they do because they consider it obligatory to behave thus or
do they do it only as a mater of courtesy?
OPINIO JURIS
BELIEF THAT A certain form of behavior is obligatory is whatmakes practice an international
rule
humanitarian consideration by itself does not constitute opinio juris
nicaragua case: ACTS concern must amount to a settled practice and accompanied by opinio
juris sive necessitatis . EITHER the states taking such ction or other states is in a position to
react to it , must have behaved so that their conduct is evidence of a belief that this practice is
rendered obligatory by the existence of a belief that this practice is rendered obligatory by the
existence of law requiring it.
NEED FOR SUCH A BELIEF ie the existence of a subjective element is implicit in the very
notion of the opinio juris sive necessitatis
POSSIBLE for customary law to dev w/c will bind only several states or even only 2 states
BUT THE PARTY CLAIMING IT MUST prove that it is also binding on the other party
ASYLUM CASE this was not proved
RIGHT OF PASSAGE OVER INDIAN TERRITORY - was proved

DISSENTING STATES; SUBSEQUENT CONTRARY PRACTICE

dissenting states bound by custom : yes unless they had consistently objected to it while the custom
was merely in the process of formation

ANGLO-NORWEGIAN FISHERIES : coastline delimitation rule put forward by england would

appear to be inapplicable as against norway, in as much as she has always opposed any attempt to
apply it to the norwegian coast
dissent : protects only the dissenter and does not apply to other states
a state joining the international law system for the first time after a practice has become law is bound
by such practice
fisheries JURISDICTION CASE( MERITS) - possible that after a practice has been accepted as law
contrary practice might arise
GREAT uncertainty as to the existing customary law on account of the conflicting and
discordant practice of states
the uncertainty had an unsettling effect on the crystalization of a still evolvingcustomary law on
the subj
IF THE CONTRARY practice should gain general acceptance it might instead become the law
EVIDENCE OF STATE PRACTICE AND OPINIO JURIS
various forms of evidence may point to state practice
these can be treaties diplomatic correspondence, statements of national leaders and political
advisers as well as conduct of states
BY THEMSELVES THEY DO NOT CUSTOMARY LAW UNLESS CHARACTERIZED BY
OPINIO JURIS
the existence of opinio juris is a matter of proof
burden of proving its existence falls on the state claiming it

NICARAGUA VS US
Where one of the issues was whether the
prohibition of the use of force was customary law
CONSENT to such resolution is one of the forms
of expression of an opinio juris w/c regard to the
principle of non-use of force regarded as a
principle of customary international law
independently of the provisions esp those of an
institutional kinf to w/c it is subj on the treaty
plane of the charter

INSTANT CUSTOM -spontaneous activity of a gtreat no of states supporting a specific line of action
WORLD TRADE CENTER IN NEW YORK a coalition of forces arose in a mater of months
supportive of the action taken by us against bin laden
ARMED ATTACK under art 51 of the un charter justifying collective self-defense NOT An attack
from a state but from a non-state org.
USUS AND OPINIO JURIS IN HUMANITARIAN LAW: the martens clause
MARTENS CLAUSE in 1899 hague peace convention : UNTIL A MORE complete code of laws of
was has been issued ,the high contracting parties deem it expedient to declarre that in cases not
included in the regulatins adopted by them the inhabitants and belligeerents remain uder the protection
and the rule of the principles of the law of nations as they result from the usages est. among civilized
peoples, from the laws of humanity and the dictates of the public conscience.
PUT THE laws of humanity and the dictates of public conscience on the same level as usages of
states or usus , EVEN without practice practice or usus or atleast without consistent practice

there can emerge a principle of law based on laws of humanity and the dictates of public
conscience
ONE NEED NOT wait for thousands of civilians to be kiled before a ban becomes effective
INSERTED by the russian publicist fyodor martens 1949 VIENNA CONVENTION and first
additional protocol of 1977 - LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS
TREATIES :
Determine the rights and duties of states just as indv rights are determined by contracts
their binding force comes from voluntary decision of sovereign states to obligate themselves to
a mode of behavior
1.bilateral
2. multilateral
TREATIES are generally binding only on the parties, the no. of the contracting parties and the
generalities of the acceptance of rules created by the treaty can have the effect of creating a
universal law in much the same way that general practice suffices to create customary law
QUESTION: whether treaties are law or are merely obligations w/c the law says must be
carried out
CONTRACT TREATIES VS LAW MAKING TREATIES ( but this distnction not useful bec
all treaties must be observed by the parties under the principle of pacta sunt servanda)
TREATIES AND CUSTOM
- COMPLEMENTARY
WON treaties override custom depends on intention of the parties
IF THE TREATY IS INTENDED to be declaratory of customary law : evidence of customary law
nicaragua vs us : ADHERENCE TO TREATIES can be indicative also of adherence to practice as
opinio juris
in case of contradiction:
IF A TREATY comes laTER THAN A PARTICULAR CUSTOM : treaty prevails. TREATY
manifests a deliberate choice of the parties and the principle of pacta sunt servanda should be ff.
EX WIMBLEDON CASE customary international law prohibited belligerents from ferrying
armaments through a neutral state ART 380 OF TREATY OF VERSAILLES opened the kiel
canal passage to the vessels of commerce and of war of all nations at peace w/ germany on
terms of entire equality
IF A later treaty is contrary to a customary rule that the status of jus cogens custom will prevail
ART 53 OF THE VIENNA CONVENTION ON THE LAW OF TREATIES :
A TREATY IS VOID if AT THE TIME of its conclusion, it conflicts with a peremptory norm
of general international law
PEREMPTORY NORM OF GENERAL international law : is a norm accepted and recognized
by the international community of states as a whole as a norm from which no derogation is
permited and w/c can be modified only by a subseqeunt norm of general international law
having the same character
WHERE CUSTOM develops after a treaty rule is not clear
LOGICAL RULE LATER CUSTOM SHOULD PREVAIL but such approach would
militate agaisnt the certainty of treaties
an attempt is made to keepp the treaty alive by efforts at reconciling a treaty with te dev
custom
anglo-french CONTINENTAL SHELF CASE : APPLICABILITY OF THE
EQUIDISTANCE principle in the delimitation of the continental shelves of the UK and
france

ART 6 : THE equidistance PRINCIPLE a matter of treaty obligation for parties to the
convention
THE COMBINED CHARACTER OF the equidistance- special circumstance rule : the
obligation to apply the equidistance principle is always one qualified by the condition unless
another boundary line is justified by special circumstances
GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED NATIONS
-third source
REFERRED to by restatement as general principles of law recognized by or common to the world's
major legal systems
REFERENCE NOT TO PRINCIPLES of international law but to principles of municipal law common
to the legal systems of the world
BELONG TO NO particular system of law but are evidence rather of the fundamental unity of
law MOST of these principles have either become part of customary law or have been
incorporated into conventional international law
RESTATEMENT avoids the language civilized nations
COLONIAL CONNOTATION is now unacceptable in the international community
SUPPLEMentary RULES OF INTERNATIONAL LAW found in judicial decisions
and the teachings of the most highly qualified publicists of the various nations
STATUTE : SUBSIDIARY MEANS FOR THE DETERMINATION OF RULES OF LAW
EX.1 1928 chorzow factory case : IT IS a general conception of law that every violation of an
engagement involves an obligation to make reparation
ex. 2 affirmation that private rights acquired under one regime does not cease upon the change of
government
ex. 3 principle of estoppel

THE AFFIRMATION of general principles of law found in domestic system as a source of

international aw makes up for the fact there there is no international legislative system
BARCELONA TRACTION CASE: if the court were todecide the case in disregard of the relevant
institutions of municipal law, it would w/o justification invite serious legal difficulties

JUDICIAL DECISIONS
ART 38 statute directs the courts to apply judicial decisions as subsidiary means for determination of
the rules of law
BUT SUBJ TO 59 THE DECISIONS OF THE COURT HAVE NO BINDING FORCE except between
the parties and in repsect of that particular case
-DECISIONS do not constitute stare decisis
THE DECISIONS OF THE ICJ are not only regarded as highly persuasive in international law circles
THEY have also contributed to the formulation of pricinples that have become international law
icj IS THE SOURCE OF PRINCIPLES RECOGNIZING THE INTERNATIONAL PERSONALITY
OF INTERNATIONAL ORG
doctrine on genuine link bet a person and a state for purposes of jurisdiction and the straight baseline
method in drawing baselines for archipelagos
ARBITRAL decisions have been instrumental on the formation of international law principles
THE TEACHINGS OF HIGHLY QUALIFIED WRITES AND PUBLICISTS
as to FIRST IMPRESSION the only authorities that can be cited are writers
the extent to w/c they are referred to depends on the tradition of the court of or indv judges
COMMON LAW JURISDICTION : reluctance to use
CIVIL LAW : more ready reference

PUBLICISTS INSTITUTIONS W/C WRITE ON INTERNATIONAL LAW

-plauy role
ex. the international law commission -organ of the un
ex. 2 institut de droit international the international law association a multinational body ;
ex. 3 the ( revised) restatment of foreign relatoins law of the us
EX 4. the annual publication of the hague academy of international law
THESE INSTITUTIONS ARE GENERALLY GOVERNMENT SPONSORED they bear within
themselves a potential for national basis
EQUITY
- AN INSTRUMENT whereby conventional or customary law may be supplemented or modified in
order to achieve justice
-permanent court of justice used this isn diversion of water from the meuse ( netherlands vs belgium)
- important principles of equity that where 2 parties have assumed an identical or a reciprocal
obligation one party which is engaged in a continuing non-performance of that obligation should not be
permitted to take advantage of similar non-performance of that obligation by the other party.
EQUALITY IS EQUITY he who seeks equity must do equity
MAXIM : A Co URT OF EQUITY refuses relief to a plaintiff whose conduct in regard to the subj
matter of the litigation has been improper
ART 38 application of general principles of law recognized by civilized nations
IF NOT independently of that article , the court has some freedom to consider principles of
equity as part of international law w/c it must apply
2 ASPECTS of equity:
1. procedural MANDATE GIVEN TO A JUDGE to exercise discretion in order to achieve a
determination that is more equitable and fair
2. substantive aspect
DIFFERENT KINDS OF EQUITY
1. intra legem ( within the law) the law is adapted to the facts of the case
2. praeter legem ( beyond the law) it is used to fill the gaps within the law
3. contra legem ( against the law) - REFUSAL to apply the law w/c is seen as unjust
AREA OF GREAT CONTROVERSY
OTHER SUPPLEMENTARY EVIDENCE
1. UN RESOLUTIONS
DECLARATIONS OF LEGAL PRINCIPLES AND RESOLUTIONS BY THE UN ARE
GENERALLY CONSIDERED AS MERELY RECOMMENDATORY
IF THEY ARE SUPPORTED by all the states they are expression of opinio juris communis
growing no. OF WEAKER nations WHO HAVE VERY substantial vote feel that un resolutoins
should have the force of law
RESOLUTIONS CAN ALSO BE REFLECTION of what has becoe customary law
2. SOFT LAW SOURCES OF SOFT LAW:
- * NON-TREATY AGREEMENTS : they are international agreements not concluded as
treaties and not covered by vienna convention on the law of treaties
* admin rules W/C GUIDE THE PRACTICE of states in relation to international org
MOST ADMIN PROCEDURES that are carried out with varying degrees of consistency and
uniformity that may eventually ripen into customary law or become formalized later on in
treaties

3. * SOFT LAWS ROLE : states prefer non-treaty obligations SIMPLER AND MORE
FLEXIBLE FOUNDATION FOR THEIR FUTURE RELATIONS
THE difference lies in the wish of the parties to model their rel. in a way that excludes the
app. Of treaty or customary law on the consequences of a breach of obligations
Soft law
Hard law
Refers to norms that are non-biding in character
but still have legal relevance i

BINDING INTERNATIONAL LEGAL norms or

those w/c have coercive character

Resolutions of un general assembly and draft

articles of the international law commission
univ declaration of human rights ; serves a
precurso of hard law

Provisions on un charter vienna convention on

diplomatic , geneva conventions 1949 and other
treaties

WHEN IT WAS adopted by resolution of the un

general assembly in 1948
IE INTERNATIONAL COVENANT ON CIVIL
AND POL RIGHTS and the international
covenant on economic social and cultural rights
Soft law : indicate that the instrument or provision in question is not of itself 'law' but its importance
w/in the general framework of international legal development is such that particular attention requires
to be paid to it
PRODUCTION OF important but non-binding instruments ex. International economic law and
international env law
USE OF SUCH DOCUMENTS : RECOMMENDATIONS , GUIDELINES codes of practice
or standards is significant in signaling the evolution and est of guidelines w/c may be ultimately
be converted into legally binding rules
IMPORTANT AND INFLUENTIAL BUT DO NOT IN THEMSELVES CONSTITUTE
LEGAL NORMS

CHAPTER 3 THE LAW OF TREATIES

conventions
pacts
covenants
charters
protocolsa
concordat
modus vivendi etc
REPRESENT the most deliberate form of commitment through which governments cooperate
w/ one another
GENERIC TERM: INTERNATIONAL AGREEMENTS
* in absence of an international legislative body international agreements are a convenient tool
throgu hwhich states are able to project common expectations
FOUND IN 1969 VIENNA CONVENTION ON THE LAW OF TREATIES
- GOVERNS treaties between states
ENTERED INTO FORCE IN JAN 1980

 document is not retroactive in effect it does contain customary law precepts antedating 1969
A convention on the law of treaties between states and international org or between
international org adopted march 26, 1986 ENTER
INTO FORCE 30 days after the 35th ratification or accession of states
TREATY: AN INTERNATIONAL agreement concluded between states in written form and are
governed by international law whether embodied in a single instrument or in 2 or more related
instruments and whatever its particular designation
VIENNA CONVENTION applies to international agreements that satisfy the convention's definition
specifically that they be in writing and reflective of the intention of the parties to be bound and
governed by international law
there are writes who hold that even an oral agreement can be binding BUT
ONLY written agreements that are new come under the provisions
no particular form is prescribed
QATAR VS BAHRAIN p. 23 even exchange of notes international agreement
- it knows of no rule of international law which might preclude a joint communique from
constituting an international agreement to submit a dispute to arbitration or judicial settlement
NORWAY VS DENMARK p. 25
UNILATERAL DECLARATION concerning legal or FACTUAL situations may create legal
obligations
NUCLEAR TEST CASES: AUSTRALIA VS FRANCE NEW ZEALAND VS FRANCES
p.25 if given publicly and with intent to be bound
1.COMMITMENT was very specific
2. there was a clear intent to be bound.
FUNCTION OF TREATIES :
treaties are sources of international law
SERVE AS A charter of international organizations :
1. they are used to transfer territory
2. regulate commercial relatoins
3. settle disputees
4. protect human rights
5. guarantee investments etc

MAY BE CLASSIFIED FROM the standpoint of their relevance as source of international law:
MULTILATERAL TREATIES : open to all states of the world
norms which are the basis for general rule of law
EITHER codification treaties or law making treaties or they may have character of both
collaborative mechanism
MAY BE universal EG regulation of allocation of radio frequencies
regional eg fishing agreements
OPERATE THROGU the ORGANS OF THE DIFF STATES
bilateral treaties : nature of contractual agreements which create shared expectations such
as trade agreements of various forms CONTRACT treaties
TREATIES generally binding only on the parties the no. of the contracting parties and the
generality of the acceptance of specific rules created by treaty can have the effect of creating
a universal law in much the same way the general practice suffices to create customary law

THE MAKING OF TREATIES

negotiation
bilateral treaties and multilateral treaties among a small no. generally originate from the foreign
ministries
NEGOTIATION IS DONE THROUGH foreign ministries
LARGER multilateral treaties are negotiated in diplomatic conferences which are run like legislative
body
POWER TO NEGOTIATE
negotiators must possess power to negotiate
AN ACT relating to the conclusion of a treaty by one who has no proper authorization has no
legal effect unless confirmed by his state
memorize article 7
authentication of text
-NEGOTIATIONS CONCLUDE with the signing of the document
THE SIGNATURES serve as authentication of the document
ARTICLE 9
CONSENT TO BE BOUND
there are stages w/c ff. Which culminate in making the document binding
MOST IMPORTANT
art 11 means of expressign consent to be bound
SIGNATURE
EXCHANGE OF INSRUMENTS constituitng a treaty
ratification
acceptance
approval
accession
or by any other means if so agreed
THE MANNER OF RATIFICATION differs from state to state
PHIL GOVERNED BY ARTICLE VII SEC 21 OF CONSTITUTION
but between signature and ratification a state is required by article 18(a) not to engage in
acts w/c can defeat the purpose of the treaty
ratification exchange of ratification
IN BiLaTERAL TREATIES or in multilateral treaties deposit of ratification
ART 16
ACCESSION TO A TREATY
states w/c did not participate in the initial negotiation may also express their consent to be
bound by accession
ART 15
RESERVATIONS
vienna convention allows for reservations IN DEFERENCE TO THE SOVEREIGNTY OF STATES
art 2 : a unilateral statement, however phrased or named , made by a state , when signing ratifying,
accepting approving or acceding to a treaty whereby it purports to exclude or to modify the legal effect
of certains provison of the treaty in their application to that state
TREATIES are diff from statutes r

statutes must necessarily apply to all

CONSENT OF THE STATE MANIFESTATIONS :
1. express - FORM OF TREATIES OR CONVENTIONS
2. implied - in case of international customs
3. presumed : general principles of law
19
20
21
22
23
Reservations
Interpretative declarations
WHICH are not meant to be a derogation FROM
treaty but an expression of how a state
understands its adoption of the treaty
A proliferation of reservations in multilateral treaties can defeat the purpose of a treaty
BILATERAL treaties a reservation by one party means a rejection of the treaty and necessitates renegotiation
reservations are meant only for multilateral treaties
OPINION IN RESERVATIONS TO THE GENOCIDE CONVENTION : a state which has made and
maintained a reservation w/c has been objected to by 2 or more parties to the convention but not by
others can be regarded as a party to the convention IF THE RESERVATION is compatible with the obj
and purpose of the convention
COMPATIBILITY could be decidedby states indv since if a party to the convention objects to a
reservation w/c it considers incompatible with the obj and purpose of the convention it can consider
that the reserving state is not a party to the convention
IT IS possible for diff legal relationships to arise among parties to the same treaty
archipelgaic waters 1982 convention on the law of the sea conflicts w/ the phil claim in article I of
the constitution THE waters connecting the islands irrespective of their breadth and dimension are
internal waters
PHIL GOVERNMENTS aware of possible conflicts
so they ratified convention on law of the sea aug 5 1984
reservations :
1. THE SIGNING OF THE CONVENTION by the gov of the republic of the phil shall not in any
manner impair or prejudice the sovereign rights of the republic of the phil under and arising
from the constitution of the phil
2. SIGNING SHALL not in any maner affect the sovereign rights of the republic of the phil as
succesor to the usa under and arising out of the treaty of paris bet spain and us of america of dec
10, 1988 and the treaty of washington bet us and great britain of jan 2, 1930
3. signing shall not diminish or in any manner affect the rights and obligations of the contracting
parties under the mutual defense treaty bet phil and us a aug 30, 1951 and its related
interpretative instruments; nor those under any pertinent bilateral or multilateral treaty or
agreement to w/c the phil is a party;
..
6. the provisions of the convention on archipelagic passage through the sea lanes do not nullify

or impair the sovereignty of the phil as an archipelagic state over the sa lanes and do not
deprive it of authorityto enace legislation to protect is sovereignty, independence and security;
7. the concept of archipelagic waters is similar to the concept of the internal waters under the
constitution of the phil and removes straits connecting these waters w/ the economic zone or
high sea from the rights of foreign vessels to transit passage for international navigation;
THE RESERVATION of the phil ( even with ussr formal protest) is not necessary bec article
8(2) : new rule applies only to areas which had not been considered as internal waters:
1973 CONSTITUTION W/C IN ITS ARTICLE I CLASSIFIED AS INTERNAL WATERS
WHAT IS NOW referref to as archipelagic waters
RESERVATIONS IN HUMAN RIGHTS TREATIES p. 36
human rights committee of the un made the ff. Observations regarding reservations in human
rights treaties
: THE ABSENCE of protest by states cannot imply that a reservation is either compatible or
incompatible with the obj and purpose of the covenant
WHEN an objection is made it often does not specify a legal consequence, or sometimes even
indicates that the objecting party does not regard the covenant as not in effect as bet parties are
concerned
THE PATTERN is so unclear that it is not safe to assume that a non-objecting state thinks that a
particular reservation is acceptable
AN OBJ TO A RESERVATION made by states may provide some guidance to the committee
in its interpretation as to its compatibility w/ the obj and purpose of the covenant

entry into force of treaties

on the date AGREED upon by the parties
where no date is indicated
The treaty enters into force once consent has been given
multilateral treaties contain a provision which says how many states have to accept the treaty before it
can come into force
ARTICLE 24
25
APPLICATION OF TREATIES
first fundamental rule : pacta sunt servand
ART 26: EVERY treaty in force is binding upon the parties to it and must be performed by them in gf
46 : that a party may not invoke the provisions of its internal law as justification for its failure to perform
a treaty
territorial scope of applicability art 29 : unless a different intention appears from the treaty or is
otherwise est. a treaty is binding upon each party in respect of its entire territory

INTERPRETATION OF TREATIES
ART 31 -COMBINES various approaches to treaty interpretation
art 31(1) ffs the objective approach that is interpretation according to the ordinary meaning of the words
teleological approach art 31(2) interpretation according to the telos or purpose of the treaty
art 31(3) and (4) subjective approach honots special meaning given by the parties
WHERE THERE ARE ambiguities in the meaning of a treaty resort may be made to supplementary
sources
art 32 and 33
IN CASE OF CONFLICT AMONG OFFICIAL TEXTS THE LANGUAGE THAT IS AGREED BY
THE PARTIES AS authoritative is ff.
Air france vs saks p. 40

INVALIDITY OF TREATIES
the usual ground for invalidation of contracts can also invalidated a treaty: error of fact , fraud, corruption or
duress
art 48
49
50
51
52
A VIOLATION OF JUS COGENS INVALIDATES A TREATY
ART 53
based on legal effect of the rule and not on its intrinsic nature
RULE : JUS COGENS BEC NO derogation from it is permitted
JUS COGENS : NO DEROGATION is allowed bec it is jus cogens
it is the intrinsic nature of the rule that disallows derogation
JUS COGENS
report of the international law commission
EX:
a. treaty contemplating an unlawful use of force contrary to the provisons of the charter
b. treaty contemplating the performance of nay other act criminal under international law
c. treaty contemplating or conniving towards the commission of acts trade in salves piracy or genocide
COMMISSION DECIDED not to stipulate a list of jus cogens rules for fear of being misunderstood and
for fear of prolonged debate
A STATE can lose the right to assert the invalidity of a treaty
RULE 45
a state with limited exception may not plead its municipal law as a ground for invalidating a treaty that has
been entered
ART 46
47
AMENDMENT AND MODIFICATION OF TREATIES

Amendment

Modification of treaties

FORMAL revision done with the participation at Involves only some of the parties
least in its initial stage by all the parties to the
treaty
GENERAL rule on amendments art 39: treaty may be amended by agreement of the parties
same as that for the formation of the treaties
FOR BILATERAL TREATIES
for multilateral treaties art 40 FOR Possibility of amendments w/c will affect only some states but only after all
parties have been given the opportunity to consider the proposed amendments
41 allows modification of a treaty by 2 or more of the parties
art 40
41
TERMINATION/suspension OF TREATIES
according to the terms of the treaty or with the consent of the parties
A TREATY w/ a definite period may also expire
MAY also end when the purpose for the treaty has already been achieved
but mere change of government or severance of diplomatic relations does not terminate or suspend a
treaty

3 OTHER IMPORTANT MODES :

1. material breach
2. impossibility of performance
3. change of fundamental conditions
REBUS SIC STANTIBUS
ART 62
MODERN approach to it is restrictive
fisheris jurisdiction case ( uk vs iceland) - A FUNDAMENTAL change in the circumstances w/c determined the
parties to accept a treaty if it has resulted in a radical transformation of the extend of the obligations imposedb y
it may under certain conditions , afford the party affected a ground for invoking the termination or suspension of
the tre aty
CHANGES must have increased the burden of the obligations to be executed to the extent of rendering
performance something essentially different from the original intentoin
fiSheries jurisdiction casep. 49
namibia case p. 50
danube dam case p. 52
PROCEDURE FOR THE TERMINATION OF TREATIES
art 65
66
67
68 REVOCATIONS of notifications and instruments provided for in art 65 or 67 may be revoked at any time
before it takes effect
AUTHORITY TO TERMINATE
while the vienna convention enumerates those who have capacity to enter into treaties it does not say
who may terminate treaty
* THE AUTHORITY To terminate should also belong to the one who has the authoirty to enter into the
treaty
pHIL + US : authority to conclude senate and preS
GOLDWATER VS CARTER : no decision if pres can unilaterally terminate a treaty : not yet ripe for
judicial review
: members of congress seek judicial resolution of issues before the normal political process has the
opportunityto resolve the conflict

SUCCESSION TO TREATIES :
when one state ceases to exist and is succeeded by another on the same territory
NEW STATE IS BOUND BY THE COMMITMENTS made by its predecessor
1978 VIENNA CONVENTION ON THE SUCCESSION OF STATES W/ RESPECT TO
TREATIES nov 6 1996
the convention ffs the clean state rule art 16 : a newly indep state is not bound to maintain in foce,
or to become a party to, any treaty by reason only of the fact that at the date of the succession of
states the treaty was in force in respect of the territory to w/c the succession of states relates
NEW STATE may agree to be bound by the treaties made by its predecessor
CLEAN SLATE does not apply to treaties affecting boundary regimes
ART 11
12