DEFINITION o Hence, if there’s conflict, the law o Gains authority every time

- Relationship between civilized Sates; rules with LATER DATE prevails except invoked, years passed without
that govern such relationship if legislature clearly intends the being impugned
- State; People; Intl Organizations contrary 5. Without prejudice to EX AEQUO ET BONO
1. Defines existence of State Sources (Latin for "according to the right and good"
2. Framework for diplomatic relations 1. International Conventions – expressly or "from equity and conscience")
3. Governs agreements recognized by contending states o Equity = justice outside law
4. Rules for international commerce o Multilateral treaties binding on all o Only available in the absence of
5. Human rights signatories law, not replacement
6. Protection of global environment o Derived from agreements
PIL vs Conflict of Laws o If widely accepted for a long time, Foundations
PIL COL it can be transformed into an 1. Mutuality or reciprocity – same privileges
Wider Part of intl law agreement into customary law will be enjoyed
Either: Public or Private which may bind non-signatories 2. Comity – caused by international duty and
- Question of 2. International Customs – generally accepted convenience
rights bet practices accepted as law
nations o Acts repeated by states which Obligatory force
create sense of obligation - Not immutable rules of law but dependent
PIL vs Municipal Law a. Wide-spread and consistent only only political considerations
PIL Municipal practice
-May be issued by the -Enacted by legislature b. Opinion juris sive NATURE AND FUNCTION OF INTL LAW
United Nations -Binding upon citizens necessitates – opnion as to International Law
-ICC – binding only IF within its jurisdiction law or necessity; act becomes - Normative system
there is a consent -codified obligatory bec it is required o Regarded by each actor
-May be issued upon -violations are penalized by a rule of law o Obligatory
request for opinion o CUSTOM – rules of conduct formed o For degree of order
which may be by repetition, legally binding and - Provides operational system for securing
disregarded by adverse obligatory values we all desire
party o Sources of Customary laws: - Contains COMPETING interests
-laws not codified except a. Work of jurist - who writes - Similar to Domestic Law
if specific conventions; periodically on public laws o Same social purpose
unless treaties, not b. General usage and practice  Domestic – vertical
binding c. Judicial decisions  International – Hori
-violation may be o Application of Customary Laws: Nature
sanctioned by mere a. It is an independent body of Rules Not rules
pressure by others; law that is binding – diff from Impartially applied No centralized sanctions
severance of ties other treaties, etc - It is a process rather than rules
b. Jus Cogens – compelling bec it - Continuing process of authoritative decisions
Relationship: Intl and Domestic is fundamental principle – past and future
1. MONISM – both are in a single legal system c. Guide to interpret laws o Accumulated past decisions
o Domestic derived from intl 3. General Principles of law recognized by o Adjusted to cope with changing
2. DUALISM –wholly separate legal system Civilized nations political world; hence, not rules
Philippines adopts concept of INCORPORATION o Those derived from domestic legal Why insist it to be impartial application of rules?
- Generally accepted principle of intl law systems 1. Decision-makers as mere applier
o MONISM 4. Judicial decisions and teachings of most 2. Avoid manifestation of international legal
o Treaties and conventions that PH highly qualified publicists argument for political ends
has adhered to o Unbiased judgments WHY NOT THESE TWO VIEWS?
o Occupy same level as domestic  law is not concerned with power or authority
laws
 o Concerned not just about binding
decisions but has broader sense of
jurisdictional competence
o The authority that characterize law
does not exist in a vacuum
 Law interlocks power
with authority
 Power > authority 
unlawful decisions
 Application of rules without context
o Runs counter to what the law is
designed to promote
o Disregarding political and social
factors is not neutral law app
o Law and policy relationship
important/essential
MORE THAN APPLICATION OF NEUTRAL RULES
- It is no policy-science approach bec it means
it is what the policy maker wants
- Some are absolute; compelling; desirable
ALL MEN OF GOOD FAITH CAN RECOGNIZE
- It’s a PROCESS
o Identifying sources
o Applying norms
Positivism and Rules
- Distinct LEX LATA (law as it is) and LEX
FERENDA (law as it might be)
o Less distinction if we consider law
as a process; context
Marxist International courts resolve
disputes by determining content of
law
Socialist Law not universal bec imposed by
West
Last 3 Articulation of universal interest
years which is human survival
It is a vehicle to achieve this
INTL LAW IN THIRD WORLD COUNTRIES
1. Widely accepted
- But challenged as inequitable since
perpetuating the interest of economically
advantaged countries
2. Emerging state thru independence seem to
not accept to be bound
- But must be accepted and relied on
To whom does it apply?
- State in their relationship with each other
o PLUS international organizations
Basis of Obligation under Intl Law
Austinian Sovereign command effect bec of
Positivist application of sanctions
- But since very minimal
sanction, makes IL not a
law at all
1. Why normative system needs to be binding –
thus true system of law
o Some things need to e regulated in
a COMPULSORY manner
o Justice found in natural law
o State consents it to be binding
2. Why states should comply
o Forward consent of States
 Apologist view
CONCEPT OF LAW
EXCHANGE OF GREEK AND TURKISH POPULATIONS
CASE
FACTS:
- Peace negotiation for Turkey
o Setting up a Mixed Commission
 4 – High Contracting
 3 – chosen by Council of
the League of Nations
o to supervise emigration; how to
execute the Convention and decide
questions to which the convention
might give rise
- confusion in interpreting Art 2 “established”
– its scope
- asked to the Council; referred to thee Court of
International Justice
- “inhabitants” “establishment of domicile” but
these have no same meaning
o fact vs legal sense
o inquire whether the Conventional
referred to national legislation
(domicile as legal term) or not
 no. statement of fact
only
 indicate date and place
 no intent to fix criterion
by means of reference to
national legislation
TWAIL
BRAZILIAN LOANS CONTRACTED IN FRANCE
FACTS
- Pursuant to a special agreement, is Kingdom
of the Serbs, Croats and Slovenes entitled to
loans or obliged to pay French (bondholders)
gold or in foreign currencies
- These bonds contain references to gold or to
the gold franc; in view of depreciating French
franc, the France wanted to be paid of their
bonds on a gold basis
HELD
- Interpretation must be compatible with
proper appreciation of nature and functions
o Municipal law must be known thru
evidence furnished by the Parties
OR means of researches
- Only until then can it decide WON to apply
municipal law of country
o How Muni Law applied with the
aid of their jurisprudence
 Just appreciation
- But it can be an application of BOTH
municipal law and other rules
- But when there is no relevant provision
relates to question at hand  depart
o IC free to decide
HEAD MONEY CASES
FACTS
- Plaintiffs (not US citizens) paid for landing in
the port of US 50 cents per passenger
o Funch, Edye & Co – business of
transporting passngers and freight
bet Holland and US
- Pursuant to Art 9 of Passenger Act of 1882,
all passengers of Leerdam were compelled to
pay DUTY of $191 total to allow the vessel to
enter; or else, no clearance from port of New
York
- Paid with protest
- Court upheld tax imposition; hence this
ISSUE
1. Are children included in the term “passenger”
hence need to pay also?
2. Is the law void since not warranted by the
Constitution?
3. Conflict bet Act and Treaty, which prevails?
HELD
1. Yes. They also need the service which the
fund will be used for
- No. the Act is similar to other statutes
enacted by the State of the Union for the
protection of its citizens
o The State conferred the power to
enforce the law to the general
Government
2. VALID
- Regulation of commerce which Consti placed
exclusively in Congress
o To be valid, Congress and not State
must pass them
o Acts of State are void
- Act of Congress 1882 – duty of 59 cents for
every passenger brought to US
o Regulate commerce
- This was not passed by Congress
- Funds to be used to mitigate evils incident to
immigration
- THIS IS NOT TAX OR DUTY but a regulation of
commerce
3. ACT. Implementation of treaties depends on
interest of government party to it
- Takes the standing of a law but still not
superior; repealable
MODULE 2 – TREATIES
Sources of International Laws
1. Formal Sources – various processes by which
rules come into existence
o i.e. legislation
o treaty making
o judicial decision making
o practice of state
2. Material Sources – substance and content of
the obligation
o identify what the obligations are
o evidence of international law
Statute of ICJ Art 38 (1)
1. The Court, whose function is to decide in accordance
with international law 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 a general
practice accepted as law;
c) the general principles of law recognized by
civilized nations;
d) subject to the provisions of Article 59, judicial
decisions and the teachings of the most
highly qualified publicists of the various
nations, as subsidiary means for the
determination of rules of law.
- Declaration by States of Laws under which
States are willing to be bound
Restatement (3rd) of Foreign Relations Law of the
United States
1. Rule of Intl Law accepted by intl community
of States
a. Customary law
b. International agreement
c. Derivation from general principles
common to major legal systems of
the world
2. Customary International general and
consistent practice of States
3. International Agreements created by state
parties, intent to adhere
4. General Principles common to major legal
systems even if not incorporated; invoked as
supplementary rules
Treaties
- International agreements
- Rights and obligations of states
- Binding force comes from the VOLUNTARY
decision of sovereign states to obligate
themselves
- RULE: binding only to contracting states
o EXN: agreements of general
acceptance creating a universal
law (customary)
1. Bilateral
2. Multilateral
Are treaties laws?
- Depends whether you treat it as
o Contract treaties
o Law making treaties
- But distinction is immaterial for contracting
parties because of the principle of Pacta Sunt
Servanda
Treaties and Customs
Do treaties override Customs?
- Depends of intent of parties
o If declaratory of customary laws
then treat is an EVIDENCE of
customary law
- Normally they are complimentary
What if there are conflicts?
- The later law will prevail
o Esp if treaty made after custom; it
is the choice of parties and follow
principle of Pacta Sunt Servanda
o But if treaty is contrary to
customary, custom will prevail by
virtue of JUS COGENS (Vienna
Convention Art 53)
 A treaty is void if, at the
time of its conclusion, it
conflicts with a
peremptory norm of
general international
law
o When Custom developed after
treaty, rule is not clear; but
logically, later custom should
prevail (but this will make treaties
uncertain)
- In general, attempt is made to reconcile the
two
LAW OF TREATIES
- Proof of government cooperation with one
another
- Found in the 1969 Vienna Convention on the
Law of Treaties
o In force January 1980
o Not retroactive but contains
customary law since 1969
Definition
- International agreement concluded between
States
o in written form and
 intent to be bound
 but can be also oral
 no form or designation
required
 exchange of
notes
o governed by intl law
- Joint Communique; 1990 Minutes
o Single or multiple
o In interpreting, Court must regard
the actual terms with respect to
the particular circumstances
o When not mere minutes but
outline of commitments. Thus,
creating rights and obligations
between parties
[Bahrain Case 1990 Minutes]
- When minister signed, it was binding as
international agreement since he knows the
circumstances
[Norway v Denmark]
- Sovereignty of Eastern Greenland
- Denmark offered certain concessions;
Norwegian Minister accepted
- Court said it is binding to Norway
[Nuclear Test Cases]
- Unilateral declaration concerning legal and
factual situations create legal obligations
- The unilateral declarations of France when
cases were taken out of the court are binding
o Given publicly with intent t be
bound even though not in context
of intl nego
 o Commitment was very specific
[Trade Act of 1974]
- Unilateral statements binding
- Not casual statements but made in behalf of
the State; reflection of US policy; intent to
incorporate in domestic US law
Function of Treaties
1. Sources of intl law
2. Charter of intl organization
3. Used to transfer territory
4. Regulate commercial relations
5. Settle disputes
6. Protect human rights
7. Guarantee investments
MULTILATERAL
- Open to all states of the world
- Create norm; basis of general rule of law
1. Codification treaties
2. Law-making treaties
3. Or both
CREATE COLLABORATIVE MECHANISM
- Universal scope
- Operate through organs of state
BILATERAL
- Mostly contractual agreements of shared
expectations (trade)
Making of Treaties
1. Negotiation – generally originate from the
Foreign Ministries or Diplomatic Conferences
(like a legislative body)
o Requires Power to Nego
 If no power, no effect
unless State confirms
a. Heads of State, Heads of
Government and Minister of
Foreign Affairs
b. Heads of Diplomatic missions
c. Representatives accredited by
State to an international
conference
2. Authentication of Text – negotiation is
concluded by signing
o Signature serves as authentication
of document
o Makes the document authoritative
and definitive
3. Consent to be bound – various ways
o Signature, exchange of
instruments, ratification,
acceptance, approval or accession,
others
In PH, ratification is provided in Art VII, Sec
21
Signature vs Ratification – doesn’t matter so
long not to defeat purpose
4. Accession to a Treaty – for states who did not
participate in the negotiations may still be
bound
o Applicable when so provided in the
treaty
5. Reservations – unilateral statements
excluding or modifying the legal effects of
certain provisions
o Makes the application of treaties
different from statute (applies to
all)
o vs Interpretative Declarations –
not derogation of applicability but
simply expression of how state
understands it
What if reservation objected?
- If objection is still compatible to the object
and purpose, it is okay; still a party.
Otherwise, that State is not a party anymore
- Non-objecting Party may think that the
reservation is acceptable
6. Entry into Force of Treaties – on the date
agreed upon by the parties
o When no date, the day consent was
given
o Provisional application – when
provided so or still in negotiation
stage
7. Application of Treaties
a. pacta sunt servanda (every treaty in
force is binding upon the parties to it
and must be performed by them in good
faith)
b. Art 29 (Unless a different intention
appears from the treaty or is otherwise
established, a treaty is binding upon
each party in respect of its entire
territory
8. Interpretation of Treaties (Art 31)
a. In good faith; ordinary meaning; in
context
b. Context: preamble and annexes
c. Context: subsequent agreements
and practices; relevant intl law
d. Special meaning of term only if so
intended
Supplementary means (Art 32)
- Preparatory work
- Circumstance of its conclusion
When Translated
- Equally authoritative in each language; if
there’s divergence, a PARTICULAR text shall
prevail
- Presumed same meaning
Invalidity of Treaties
1. Art 48 Error of Fact assumed by the State to
exist at the time; basis for its consent
a. Not applicable if contributed by
the conduct of the State or mere
wordings
2. Art 49 Fraud – one state induced another
3. Art 50 Corruption of a Representative
4. Art 51 Coercion of a Representative of a State
by threat or use of force
5. Art 53 Violation of JUS COGENS – treaties
conflicting with a peremptory norm of
general international law (those accepted and
recognized by the intl community of States as
a whole)
Amendment and Modification of Treaties
1. Amendment – formal revision done with the
participation by all parties
o May be by mere agreement
o Same procedure as formation of
treaties
2. Modification – involves some parties
Termination of Treaties
- Depending on the terms or when with
consent of the parties
- May be stipulated that treaty has expiration
- Purpose of treaty has been achieved
- Mere change in government or severance of
diplomatic relations DO NOT
terminate/suspend treaty
 1. Material Breach – may be invoked by the
aggrieved party in a bilateral treaty; or
unanimous agreement if multilateral treaty
o Any repudiation, violation of
essential provisions
2. Supervening impossibility of performance
- Permanent disappearance or destruction of
an object indispensable for the execution
- may not be invoked by breaching party
3. Rebus sic stantibus – fundamental change of
circumstances
- GR: unforeseen circumstances have no effect
to treaty
- EXN: it is the basis of consent; extent so
radical as to change extent of obligations
[