THE SOURCES OF INTERNATIONAL LAW AND ITS RELATION WITH MUNICIPAL

LAW
Primary Sources:
TREATIES AND AGREEMENTS, CUSTOM, GENERAL PRINCIPLES OF LAW
International Treaties and Conventions, whether general or particular, establishing rules
expressly recognized by the contesting states.

GENERAL RULE: for a treaty to be considered a direct source of international law, it must be
concluded by a sizeable number of states and thus reflect the will or at least the consensus of the
family of nations.
Even if originally agreed upon by a few states, the treaty may become binding upon the world if:
1. It is intended to lay down rules for observation by all; and
2. It is subsequently signed or acceded to by other states which thereby submit to its
provisions.
Customs, as evidence of a general practice accepted as binding law through persistent usage over
a long period of time, e.g., angary- the right of a belligerent State, in time of war, to make use of
the property of neutral States, located within the territorial jurisdiction of the belligerent, upon
payment of reasonable and just compensation; exemption of unarmed fishing vessel from capture
and the practice of granting of immunities to foreign head of states or diplomats in the territory of
local state pursuant to that has come to be known as the principle of exterritoriality. It is
necessary, however, that the custom be:
[i] prevailing practice by a number of states;
[ii] repeated over a considerable period of time; and
[iii] attended by opinio juris or a sense of legal obligation.

General Principles of Law, These are rules derived mainly from natural law, observed and
recognized by civilized nations, e.g., res judicata, prescription, pacta sunt servanda and estoppel.
See Agustin vs. Edu, where the doctrine of pacta sunt servanda was applied by the Court relative
to the validity of the administrative rule requiring the use of early warning device, as part of the
Vienna Convention on Road Signs and Signals.

Secondary Sources:

JURISPRUDENCE AND DOCTRINE, UNILATERAL ACTS OF STATE AND DROIT

DERIVE
Judicial Decisions, generally of international tribunals, the most authoritative being the
International Court of Justice. They are not really sources, but “subsidiary means” for finding what
the law is, and whether a norm has been accepted as a rule of international law. The decision of a
national court may be used depending upon the prestige and perceived impartiality of the domestic
court, not being in conflict with the decisions of international tribunals, and its admissibility in the
forum where it is cited.
The doctrine of stare decisis is not applicable in international law, and so the decision of a court
in one case will have only persuasive value in the decision of a subsequent case. According to
article 59 of the Statute of international Court of Justice, “The decision of the Court has no binding
force except between the parties and in respect to a particular case.

DECISIONS EX ACQUO ET BONO

To these may be added the principle of ex aequo et bono (what is good and just), provided that the
parties to the dispute agree thereto, as provided in Art. 38 (1), Statute of the International Court of
Justice.

This is the basis for a decision by an international tribunal on the grounds of justice and fairness.
Article 38 of the Statute of the International Court of Justice cites ex'aequo et bono as an alternate-
means of decision-making in place of the normally employed legal rule V of Treaties and custom.
However, a case can be decided ex aequo et bono only with the consent of both parties to the
dispute before the judicial body. (Bledsoe & Boczek, The International Law Dictionary, 1987
ed., p. 11.)

SUBJECTS OF INTERNATIONAL LAW

Distinction between subject and object of international law.

Subject, subject of international law, means an entity that bears international legal rights or duties.
Subjects of international law are also known as international legal persons, a phrase that is meant
to convey the idea of full-fledged participation in the international legal system by entities that are
capable of exercising rights and observing duties under international law. The subjects of
international law are the actors, or players, on the international scene.

The subjects of international law are: states, colonies and dependencies, mandates and trust
territories, the Holy See (Vatican City), the United Nations, belligerent-communities, international
administrative bodies, and, to a certain extent, individuals.

Objects, the objects of international law are the who, what, and where that are being acted on. The
objects of international law are the legitimate topics of international legal regulation. An object is
a person or thing in respect of which rights are held and obligations assumed by the subject; it is
not directly governed by the rules of international law; its rights are received, and its
responsibilities imposed, indirectly through the instrumentality of an international agency.
STATES
Definition: A state is a group of people, living together in a fixed territory, organized for political
ends under an independent government, and capable of entering into international relations with
other states.
 CONSTITUTIVE ELEMENTS
People. A group of individuals, of both sexes, living together as a community. They
must be sufficient in number to maintain and perpetuate themselves.

Territory. The fixed portion on the earth’s surface occupied by the inhabitants. It
should be big enough to be self-sufficient and small enough to be easily
administered and defended.
Government. Must be organized, exercising control over and capable of
maintaining law and order within the territory. It can be held internationally
responsible for the acts of the inhabitants. The identity of the state is not affected
by changes in government.

Independence or Sovereignty. Freedom from outside control in the conduct of its

foreign (and internal) affairs.

Other suggested elements of a state are:

a) Civilization.
b) Recognition: The act by which a state acknowledges the existence of another
state, a government or a belligerent community, and indicates its willingness to deal
with the entity as such under international law. [Note: The importance of
recognition has been substituted to a large extent by the act of admission to the
United Nations. UN members must treat the new member as an equal partner in all
matters relating to the application of the UN Charter. However, recall that the UN
General Assembly refused recognition to Transkei (South Africa), and the UN
Security Council called upon all states not to recognize Southern Rhodesia.

SOVEREIGNTY AND JURISDICTION

Jurisdiction. The power or authority exercised by a State over land, persons, property, transactions
and events. The basic question of jurisdiction centers upon which State has sovereignty or legal
control over land, persons, ships at sea, airships in flight, property, transactions or events, in
various situations.

1. Bases of Jurisdiction.

Territorial Principle. The State may exercise jurisdiction only within its territory. Exceptionally,
it may have jurisdiction over persons and acts done outside its territory depending on the kind of
jurisdiction it invokes. While there is no territorial limit on the exercise of jurisdiction over civil
matters, a State, as a general rule, has criminal jurisdiction only over offenses committed within
its territory, except over (i) continuing offenses; (ii) acts prejudicial to the national security or vital
interests of the State; (iii) universal crimes; and (iv) offenses covered by special agreement
(although this is now obsolete).
Nationality Principle. The State has jurisdiction over its nationals anywhere in the world, based
on the theory that a national is entitled to the protection of the State wherever he may be, and thus,
is bound to it by duty of obedience and allegiance, unless he is prepared to renounce his nationality.
This applies to civil matters, e.g., Art. 15, Civil Code, which provides: “Laws relating to family
rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens
of the Philippines, even though living abroad”; and also in taxation. The principle does not,
however, apply to criminal offenses; but see Biackmer v. U.S., 284 U.S. 421, where the US
Supreme Court upheld a judgment for contempt against an American who refused to return from
France to testify in the U.S.

Protective Principle. State has jurisdiction over acts committed abroad (by nationals or
foreigners) which are prejudicial to its national security or vital interests. See Art. 2, Revised Penal
Code, which speaks of Philippine criminal jurisdiction over (i) offenses committed on board a
Philippine ship or airship; (ii) forgery/counterfeiting of Philippine coins or currency notes; (iii)
introduction into the Philippines of such forged or counterfeit coins or notes; (iv) offenses
committed by public officers or employees in the exercise of official functions; and (v) crimes
against national security and the law of nations. See also Joyce v. Director of Public Prosecution,
House of Lords, December 18, 1945, where a British national was deemed to owe continuing
allegiance (even after he renounced his nationality) under the doctrine of indelible allegiance, and
thus, was successfully prosecuted for treason committed abroad.

Principle of Universality. State has jurisdiction over offenses considered as universal crimes
regardless of where committed and who committed them. Universal crimes are those which
threaten the international community as a whole and are considered criminal offenses in all
countries, piracy jure gentium, genocide, white slave trade, hi-jacking, terrorism, and war crimes.
See Attorney General v. Eichmann.

Principle of Passive Personality. State exercises jurisdiction over crimes against its own nationals
even if committed outside its territory. This principle may be resorted to if the others are not
applicable.

IMMUNITIES
a) Doctrine of State Immunity.
b) Act of State Doctrine. A State should not inquire into the legal validity
of the public acts of another State done within the territory of the latter. See Underhill
v. Hernandez, 168 U.S. 250, where the US court refused to inquire into the acts of
Hernandez (a Venezuelan military commander whose government was later
recognized by the US) in a damage suit brought in the US by Underhill, an
American, who claimed that he had been unlawfully assaulted, coerced and
detained by Hernandez in Venezuela. In l/KS. Kirkpatrick v. Environmental Tectonic
Corporation, 29 ILM 182, it was held that other considerations, like motive, are not
material in the application of the doctrine.
i) This doctrine is more of a choice of law rule, and may be raised
by private parties. But note Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
where it was stated that “no court in the US should decline because the act of state
doctrine seems to make a determination on the validity of the confiscation of
property by a foreign State in violation of the principles of international law”. In
Republic of the Philippines v. Ferdinand Marcos, 806 Fd. 2d. 344, US Court of
Appeals, it was held that acts of torture, execution and disappearance were clearly
acts outside the President’s authority and are not covered by the act of state
doctrine, citing the case of the Venezuelan dictator, Marcos Perez Jimenez, which
distinguished legal acts from acts for personal profit which lack basis in law.
c) Diplomatic Immunity. Part of customary international law which grants immunity to
diplomatic representatives, in order to uphold their dignity as representatives of their respective
States and to allow them free and unhampered exercise of their functions. There are varying rules
for different diplomats. The procedure for claiming this immunity starts with a request by the
foreign State for an executive endorsement by the Department of Foreign Affairs, and the
determination made by the Executive Department is a political question which is conclusive on
Philippine courts. d) Immunity of the United Nations, its Organs. Specialized Agencies, Other
International Organizations, and its Officers. See Art. 105, UN Charter, which provides that the
“organization, officers, representatives of members, (who) shall enjoy such privileges and
immunities as are necessary for the independent exercise of their functions”. The reason for the
grant of privileges and immunities to international organizations, its officials and functionaries, is
to secure them legal and practical independence in fulfilling their duties [Lasco v. UN Revolving
Fund for National Resources Exploration, 241 SCRA 681]; to shield the affairs of international
organizations, in accordance with international practice, from political pressure or control by the
host country to the prejudice of member States, and to ensure the unhampered performance of their
functions [International Catholic Migration v. Calleja, 190 SCRA 130]

e) Foreign merchant vessels exercising the right of innocent passage or arrival under stress.
Innocent passage is navigation through the territorial sea of a State for the purpose of traversing
that sea without entering internal waters, or of proceeding to internal waters, or making for the
high seas from internal waters, as long as it is not prejudicial to the peace, good order or security
of the coastal State. Arrival under stress, or involuntary entrance, may be due to lack of provisions,
unseaworthiness of the vessel, inclement weather, or other case of force majeure, such as pursuit
by pirates.
f) Foreign armies passing through or stationed in the territory with the permission of the
State.
g) Warships and other public vessels of another State operated for noncommercial purposes.
They are generally immune from local jurisdiction under the fiction that they are “floating
territory” of the flag State [Schooner Exchange v. MacFaddon, 7 Cranch 116], Their crew
members are immune from local jurisdiction when on shore duty, but this immunity will

CREATION OF STATES
Creation of States. By revolution, unification, secession, assertion of
independence, agreement and attainment of civilization.
 RECOGNITION
CONTINUITY AND SUCCESSION
Principle of State Continuity. The state continues as a juristic being notwithstanding changes in
its circumstances, provided only that such changes do not result in the loss of any of its essential
elements. See Sapphire Case where, after Emperor Louis Napoleon filed a damage suit on behalf
of France in an American court, he was deposed. Nonetheless, the action was not abated and could
continue upon recognition of the duly authorized representative of the new government of France.
a) Succession of States. May be universal or partial. Consequences are: political laws are
abrogated [People vs. Perfecto, 43 Phil. 887] while municipal laws remain in force [Vilas vs. City
of Manila, 229 U.S. 345]; treaties are discontinued, except those dealing with local rights and
duties, such as those establishing easements and servitudes; all rights of the predecessor state are
inherited, but successor state can assume and reject liabilities at its discretion. [Note: In Haile
Selassie vs. Cable Wireless, it was ruled that a conquered state has no personality in international
law
b) Succession of Governments. The integrity of the State is not affected; the state continues as
the same international person except that its lawful representative is changed. The consequences
are; all rights of the predecessor government are inherited by the successor; and where the new
government was organized by virtue of constitutional reform duly ratified in a plebiscite, all
obligations of the predecessor are likewise assumed; however, where the new government is
established through violence, the new government may lawfully reject purely personal or political
obligations of the predecessor, but not those obligations contracted by it in the ordinary course of
official business.

INTERNATIONAL ORGANIZATIONS
"International Organizations" are associations of States, established by treaties between two or
more States, whose functions transcend national boundaries and which are for certain purposes
subjects of international law. Public International organizations include global, all-purpose
organizations; specialized agencies of the United Nations; other global functional organizations;
and regional organizations.
INDIVIDUALS
While traditional writers insist that private individuals are merely objects and not subjects of
international law, some recognized writers in recent years have accorded to the individual a
new status in international law: they say, and with good reason, that private individuals should
now be regarded as subjects in the international order, in view of the importance laid on them by
the following:
1. the Charter of the United Nations Organization, and the Universal Declaration of Human
Rights; (The Universal Declaration of Human Rights adopted in 1948 by the General
Assembly of the United Nations, provides in its preamble that:"It is essential, if man is not
to be compelled to have recourse,as a last resort, to rebellion against tyranny and
oppression, thathuman rights should be protected by the RULE OF LAW.");
 2. piracy (this, of course, can be committed only by acts of private individuals; not by Acts
of State.) Hence, piracy cannot be committed by the crew of a public vessel acting at the
command or with the authorization of a government.
3. espionage rules; conventions punishing acts of illegitimate warfare; rules of general
international law punishing private individuals for breach of blockade and carriage of
contraband;
4. the practice of certain courts of permitting foreigners to appear and prosecute claims;
5. the Genocide Convention of 1948 which directly holdsliable not only States, but also
private individuals, for the mass extermination of a racial group;
6. the existence the existence of rules safeguarding the rights of aliens and minorities;
7. punishment for the illegal use of the flag (Kelsen points out that "under general
international law, every vessel mu6t Bail under the flag of a State; but international law
leaves it to the national law of the State to determine the conditions under which a vessel
is allowed to sail under the flag of that State. All States are authorized to seize thru their
warships, ships which illegitimately sail under their flags and to confiscate said ships by
way of a decision of their own courts, as a penalty for the abuse of the flag.") This means
that the owner of the ship and the master of the ship are directly obliged under international
law not to commit the delict, and that the owner and the master are made individually
responsible for said act;*

Although traditionally, individuals have been considered merely as objects, not subjects, of
international law, they have also been granted a certain degree of international personality under a
number of international agreements, some of which are: [a] UN Charter provision on “faith in
fundamental human rights, dignity and worth of the human person, and in the equal rights of men
and women”; [b] Universal Declaration of Human Rights provision on “the inherent dignity and
the equal and inalienable rights of all members of the human family”; [c] Some treaties, e.g., the
Treaty of Versailles, which confer on individuals the right to bring suit against States before
national or international tribunals; [d] The need for States to maintain an international standard
Of justice in the treatment of aliens; [e] The Genocide Convention, which condemns the mass
extermination of national, ethnic, racial or religious groups; [f] The 1930 Hague Convention with
its rules to prevent the anomalous condition of statelessness, and the 1954 Covenant Relating to
the Status of Stateless Persons, which grants stateless individuals certain basic rights; and [g] The
1950 European Convention on Human Rights and Fundamental Freedoms, which grants private
associations and individuals the right to file complaints before the European Court on Human
Rights.
STATES AND THEIR RECOGNITION
Theories on Recognition:
ia) Constitutive (Minority view1): Recognition is the act which constitutes the entity into an
international person. Under this view, recognition is compulsory and legal; it may be compelled
once the elements of a state are established.
ib) Declarative (Majority view): Under the majority view, recognition merely affirms an existing
fact, like the possession by the state of the essential elements. It is discretionary and political.
ii) Basic Rules on Recognition: It is a political act and mainly a matter of policy on the part of
each state; it is discretionary on the part of the recognizing authority; and it is exercised by the
political (executive) department of the state. Thus, the legality and wisdom of recognition is not
subject to judicial review.
iii) Requirements for Recognition of Government: The government is stable and effective, with
no substantial resistance to its authority; the government must show willingness and ability to
discharge its international obligations; and the government must enjoy popular consent or approval
of the people.
iiiat Tobar/Wilson Doctrine: precludes recognition of any government established by
revolutionary means until constitutional reorganization by free election of representatives.
iiib) Stimson Doctrine: No recognition of a government established through external
aggression.
iiic) Estrada Doctrine: Since recognition has been construed as approval (and non-
recognition, disapproval) of a government established through a political upheaval, a state
may not issue a declaration giving recognition to such government, but merely accept
whatever government is in effective control without raising the issue of recognition.
Dealing or not dealing with the government is not a judgment on the legitimacy of the said
government. [Note: Recall the recognition of the People’s Republic of China, based on the
one China policy

iv) Kinds of Recognition. May be express or implied: may also be:

iva) De facto: Extended by the recognizing state which believes that some of the
requirements for recognition are absent. The recognition is generally provisional and
limited to certain juridical relations; it does not bring about full diplomatic intercourse and
does not give title to assets of the state held/situated abroad.
ivb) De jure: Extended to a government fulfilling the requirements for recognition. When
there is no specific indication, recognition is generally considered as de jure. The
recognition is relatively permanent; brings about full diplomatic intercourse and
observance of diplomatic immunities; and confers title to assets abroad. See: Lawyers
League for a Better Philippines vs.
Corazon Aquino, G.R. No. 73748, May 22, 1986.
v) Effects of Recognition: Diplomatic relations; right to sue in the courts of the recognizing state
Isee Banco Nacional de Cuba vs. Sabbatino, 376 U.S. 398, where unfriendly relations or the lack
of reciprocity was held immateriaiy; immunity from jurisdiction; entitlement to property within
the recognizing state; retroactive validation of the acts of the recognized state/ government, such
as acts of state, and thus, sovereign immunity covers past, present and future acts [Oetjen vs.
Central Leather Co.. 246 U.S. 297].
vi) Recognition of Belligerency; Conditions. The usual conditions for the recognition of the status
of belligerency are: organized civil government having control and supervision over the armed
struggle; serious and widespread struggle with the outcome uncertain; occupation of a substantial
portion of the national territory; and willingness on the part of the rebels to observe the rules/
customs of war. [Note: (1) Absence of any of the foregoing conditions will result merely in
insurgency which is rarely recognized. (2) Recognition may be either express or implied; the
proclamation by the parent state of a blockade of a port held by the rebels is implied recognition
of belligerency; so is the proclamation of neutrality by a third statej -
vii) Effects of Recognition of Belligerency. Responsibility for acts of rebels resulting in injury to
nationals of the recognizing state shall be shifted to the rebel government; the legitimate
government recognizing the rebels shall observe the laws of war in conducting hostilities; third
states recognizing the belligerency shall maintain neutrality; and recognition is only provisional
(for the duration of the armed struggle) and only for the purpose of the hostilities.
INTERNATIONAL ORGANIZATIONS AND THE UN