I.
GENERAL PRINCIPLES
A. International Law Defined
1. Origins. The intellectual origins of international law
run concurrently with the development of sovereignty.
Initially, Hugo Grotius and Alberico Gentili (16th
century), both of competent theological training,
characterized international law as municipal law writ
large.
2. Breakthrough. By the early 19th century, following the
Napoleonic wars, the first major peace summit took
place (Congress of Vienna, 1814-15), followed by the
early versions of several important treaties including
those establishing rules for the navigation of rivers
(1815), those establishing the neutrality of Switzerland
(1831) and Belgium (1831), the first codified law on
maritime warfare (Declaration of Paris, 1856), and much
later, the Kellogg-Briand Pact (1928) which sought to
limit or abolish war. Notably, these years also saw the
creation of an early framework of rules regarding the
recognition of States, and State responsibility.
3. Terminology. The term international law was first
formally used by Jeremy Bentham in 1870. [See: J.
Bentham, Introduction to the Principles of Morals and
Legislation, 1789)
4. Traditional Definition. That brunch of public law which
regulates the relations of States and of other entities
which have been granted international personality. [This
definition focuses on subjects, which are entities that
possess international personality and have rights and
obligations recognizer under international law, as against
objects, which are persons or things in respect of which
rights are held and obligations assumed by the subjects
of international law.] Another traditional definition is
that of Oppenheim, who refers to international law as "a
body of customary and conventional rules which are
considered legally binding by civilized States in their
intercourse with each other." This definition appears to
exclude general principles of law and seems to make a
subjective distinction between so-called civilized and
non-civilized States. [See: L. Oppenheim, International
Law: A Treatise, 1912]
5. Modern Definition. The law that deals with the
conduct of States and international organizations, their
relations with each other and, in certain circumstances,
their relations with persons, natural or juridical
[American Third Restatement]. In a sense, the
broadening scope and breadth of international law
means that in contemporary times, it affects almost
every aspect of our lives.
B. Basis of International Law
1. The Natural Law School. There is a natural and
universal principle of right and wrong, independent of
mutual intercourse or compact, which can be discovered
and recognized by every individual through the use of his
reason and conscience. Since individuals compose the
State whose will is but the collective will of the
inhabitants, the State also becomes bound by the natural
law.
2. The Positivist School. The binding force of
international law is derived from the agreement of the
States to be bound by it. In this context, international law
is not a law of subordination but of coordination.
3. The Eclectic or Grotian School. In so far as it conforms
to the dictates of right reason, the voluntary law may be
said to blend with the natural law and be, indeed, an
expression of it. In case of conflict, the natural law
prevails, being the more fundamental law.
4. Other suggested basis: Ubi Societas Ibi Jus. Under this
concept, law is considered as the hallmark of any political
community which intends to act together for the
common good. Law is therefore considered necessary for
the society to function and, because it is necessary, it is
ex hypothesi binding.
5. Belief of States. Another cogent argument for
international law is simply that it exists because States
believe it exists. This belief can be seen from the
communications the States make to each other,
communications which notably contain substantial
references to law and other legal references.
C. Theories of International Relations
1. Realist Theory. This theory provides that States are in
a constant struggle for power; therefore, each State can
be reasonably assumed to be acting only in pursuit of
their individual interests.
2. Institutionalist Theory. This theory is more interested
with understanding international relations through the
interplay of States in the different institutions. As such,
the relations of States are a product of their interaction
not only among themselves, but also with the various
institutions and hierarchal structures in the global
political sphere.
3. Neoliberalist Theory. This theory proceeds from an
assumption that States are geared towards gains and
profit, therefore, relations are often dependent on
whether the same would be profitable or not.
4. Democratic Peace Theory. This provides that
democratic States are generally hesitant to go to war
with other democratic States. [See also: Golden Arches
Theory of Conflict Prevention]
5. Hegemonic Stability Theory. This provides that the
global system is likely to be stable when controlled by a
single State which would be known as the Hegemon.
D. Public International Law Distinguished from:
1. Private International Law. As to nature, international
not municipal; as to remedies, international modes vs.
local tribunals; as to parties, international entities not
private persons; as to enforcement, international
sanctions not local sheriff/police. Furthermore, Private
International Law (or Conflicts of Laws) is not really a
branch of international law but is rather a part of
domestic law dealing with disputes that arise from
private transactions between individuals or companies
and corporations from one country vis-à-vis their
counterparts in another country.
2. Internationality Morality or Ethics. Principles which
govern relations of States from the standpoint of
conscience, morality, justice, and humanity.
3. International Comity. Rules of politeness/courtesy
observed by the States in their relations with other
States.
4. International Diplomacy. Objects of international
policy and the conduct of foreign affairs.
5. International Administrative Law. Body of laws which
regulate the relations and activities of national and
international agencies with respect to their material and
intellectual interests which have received international
recognition.
E. International Law as True Law
1. The Austinian Dilemma. John Austin (19th century
positivist) states that laws are commands of a sovereign
which receive the habitual obedience of the members of
an independent political society. international law,
according to Austin, does not follow this precept.
International law, furthermore, lacks an effective
enforcement mechanism.
2. Command Theory. Similar to the Austinian Dilemma,
the “command theory” states that laws are commands
of the sovereign authority and are backed by sanction.
Those who subscribe to this theory therefore see
international law as merely a “code of rules of conduct
of moral force” and is simply “positive international
morality”.
3. International law as law. Although it may not comply
with John Austin’s concept of law, i.e., enforced by
sovereign political authority, nonetheless it is still true
law. This is because despite the prevailing belief that
international law does not comply with the requirements
of sovereign issuance, compulsion, and penalty, it still
has such mechanisms for enforcement such as self-help,
force, collective action, and resort to the UN.
4. Amendment and adjudication. Amendments (rules of
change) are needed by legal systems. International law,
unlike legislation, has rules based on consent (treaties
and customs). Thus, the focus here is on self-interest
rather than common good. Notably, adjudication is also
with consent.
5. Application, enforcement, and compliance. The
absence of a central lawmaking authority and the
debilitating jurisdictional defects weaken the
expectation of compliance in comparison with the
situation in the domestic plane. Enforcement is therefore
decentralized, unlike that of municipal law, and can be
done either through peaceful measures or otherwise.
These considerations are, however, balanced by the risk
of political/economic retaliation and other sanctions,
such as adverse public opinion, retorsions, reprisals, the
UN machinery, and the conviction that obedience will
redound to the public good.
6. Enforcement v. Enforceability. Actual enforcement is
irrelevant to the binding quality of international law, as
enforcement is not what is meant by the term law. What
is material is that international law is "enforceable" even
though it lacks a police force or compulsory court.
F. Relationship with Municipal Law
1. Horizontal v. Vertical. International Law is
"horizontal" by nature whereas domestic or municipal
law is "vertical". This means that in international law, all
States are more or less on equal footing and are generally
unable to compel each other to act, whereas under
municipal law, a hierarchy exists to those lower in the
system.
2. Monist v. Dualist. To monists, there is no substantial
distinction between international law and municipal law.
But to dualists, the distinctions lie in that ML is issued by
a political superior for observance by those under its
authority, while IL is not imposed but adopted by States
as a common rule of action; ML consists of enactments
of the lawmaking authority, while IL is derived from such
sources as international customs, conventions or general
principles of law; ML regulates relations of individuals
among themselves, while IL applies to relations between
States and international persons; violations of ML are
redressed through local judicial and administrative
processes, while in IL, they are resolved through State-
to-State transactions; and breaches of ML entail
individual responsibility. The Monist theory has been
criticized due to the fact that States, in practice, do not
follow this theory and instead follow international law
only when it pleases them.
3. Written in the Law. States that have written
constitutions usually indicate the manner in which
international law is treated in domestic courts: Federal
Republic of Germany (Basic Law, Art. 15 - "The general
rules of international law shall form part of federal law.
They shall take precedence over the law and create rights
and duties directly for the inhabitants of the Federal
territory"); Art. 15 of the Russian Constitution makes
reference to "generally recognized principles and norms
of international law and international treaties"; the 1996
Constitution of the Republic of South Africa: "Customary
international law is the law in the Republic unless it is
inconsistent with the Constitution or an Act of
Parliament." [Note that this generally covers only
customs and principles but not treaties, since the latter
usually still needs transformation.]
4. The Prism of State Practice. The application of
international law in the municipal system is better
understood through the prism of State practice. For
example, in the UK and the US, domestic legislation or
judgments trump customary international law; while in
Malaysia, customary law is already deemed incorporated
in their jurisdiction.
5. The Theory of Coordination. This Doctrine states that
although domestic law and international law are on two
separate planes, they may nevertheless affect each other
with regard to obligations. However, it is argued by
Fitzmaurice that since the two systems lie on different
fields, their interaction should not bring them into
conflict with each other since they operate in two
different spheres, with each being supreme in its own
field. (Also see: H. Thirlway, The Law and Procedure of
the International Court of Justice, 2013)
6. Incorporation v. Transformation
a. Incorporation. The doctrine of incorporation is
expressed in Sec. 2, Art. II, Philippine Constitution, as
follows: "The Philippines renounces war as an instrument
of national policy, 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”.
(Underscoring supplied) See: Kuroda vs. Jalandoni, 83
Phil. 171 (although the Philippines was not a signatory to
the Hague and Geneva Conventions, international
jurisprudence is automatically incorporated in Philippine
law, thus making war crimes punishable in the
Philippines); Lo Ching vs. Archbishop of Manila, 81 Phil.
601; Borovsky vs. Commissioner of Immigration, G.R. No.
L-4362 (1951) (where prolonged detention of a Stateless
alien pending deportation was deemed illegal, citing the
Universal Declaration of Human Rights which is
incorporated in Philippine law).
b. Transformation. The doctrine of transformation
requires the enactment by the legislative body of such
international law principles as are sought to be part of
municipal law. See: Laguna Lake Development Authority
vs. Court of Appeals, 231 SCRA 292 (where it is declared
that Sec. 6, Art. II, Philippine Constitution, which reads:
“The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature”, was taken
from the Universal Declaration of Human Rights and the
Alma Conference of Declaration of 1978 recognizing
health as a fundamental human right. Thus, the authority
of Laguna Lake Development Authority (LLDA) to issue a
cease and desist order to prevent the pollution of
Marilao River was upheld on the basis of the principle of
necessary implication.
c. Caution. Internationally speaking, the fact that a
country follows the incorporation doctrine for customary
international law does not automatically mean that the
same follows for conventional international law or
treaties (e.g., United Kingdom). Likewise, some States
make a distinction between treaties which they deem
are self-executing from those they deem are not (e.g.,
United States). However, the Philippines does not seem
to make such distinctions in employing the incorporation
doctrine, the only qualification being that in the case of
treaties, the same must be in conformity with the
Constitution. (Art. VIII, Sec. 5[2][a]; Secretary of Justice
vs. Judge Lantion, G.R. No. 139465, January 18, 2000)
7. Conflict Between International Law and Municipal
Law.
a. On the domestic sphere, with a local court deciding:
i. If the conflict is with the Constitution: uphold the
Constitution. [See Sec. 5(2)(a), Art. VIII, Philippine
Constitution, which provides that the Supreme Court has
the power to declare a treaty or executive agreement
unconstitutional.] In Secretary of Justice vs. Judge
Lantion, it was held that in States where the Constitution
is the highest law of the land, such as the Republic of the
Philippines, both statutes and treaties may be
invalidated if they are in conflict with the Constitution.
ii. If the conflict is with a statute: the doctrine of
incorporation, as applied in most countries, decrees that
rules of international law are given equal standing with,
but are not superior to, national legilative enactments. A
treaty may repeal a statute, and a statute may repeal a
treaty; thus, the principle of lex posterior derogat priori,
which favors that which comes last in time will usually be
upheld by the municipal tribunal. [See also Ichong v.
Hernandez, 101 Phil. 115, where it was held that the
Retail Trade Nationalization Law prevails over the Treaty
of Amity with China and the Universal Declaration of
Human Rights, because the law was passed in the
exercise of the police power of the State, and police
power cannot be bargained away through the medium of
a treat or a contract.]
b. On the international sphere, with an international
tribunal deciding:
i. Superiority. International law is superior to municipal
law, because international law provides the standard by
which to determine the legality of a State’s conduct.
[See: Alabama Claims Arbitration Case 1872 [John
Bassett Moore, History and Digest of the International
Arbitrations to which the United States Has Been a Party,
1898], where it was decided that the UK must take care
that its municipal law conform with its international
obligations; see Polish Nationals in Danzig Case 1932
[225 C.T.S. 188], where the PCIJ ruled that a state cannot
adduce as against another state its own domestic laws
with a view to evading obligations incumbent upon it
under international law; UN Headquarters Case 1988
[I.C.J. Reports 1988, p.12], where the ICJ affirmed that
international law prevails over municipal law).
ii. Application of Vienna Convention on the Law of
Treaties (VCLT). International law does not entirely
ignore municipal law, the latter being used as evidence
either of custom or general principles of law. However,
following Art. 27 of the VCLT, which states that “a party
may not invoke the provision of its internal law as
justification for its failure to perform a treaty”, municipal
law (or a gap within it) cannot be used by a state as
excuse for non-compliance with an obligation under
international law. (See: Free Zones of Upper Savoy Case
1932 [PCIJ Series A/B No. 46], where the PCIJ ruled that
France could not rely on its domestic law to override its
treaty obligations; Alabama Claims Arbitration Case
1932; LaGrand Case 2001. [(2001) ICJ Rep 466, where the
ICJ ruled that the US had violated its treaty obligations
when it failed to inform an alien arrested locally of his
rights under international law.]
G. Sources of International Law
1. In the domestic sphere, the constitution, legislative
enactments, and case law (stare decisis) constitute such
sources. On the international plane, it is a bit
complicated because there is no body likened to a
national legislature, no fundamental law, and the
doctrine of precedents is not applicable.
2. Material and Formal Sources. Material sources are
distinguished from formal sources insofar as it is the
material sources from which the substance of the law is
derived, while it is the formal sources that become the
basis of the validity and force of law. An example of this
can be seen in the case of custom: while custom itself is
a formal source of law, the state practice that was taking
place even before such practice crystallized into custom
can be considered as the material source.
3. Given the wide range of possible sources of
international law, the most authoritative enumeration is
found in Art. 38, Statute of the International Court of
Justice, which provides that the Court, whose function is
to decide in accordance with International Law such
disputes as are submitted to it, shall apply:
As Primary Sources:
a. International Treaties and Conventions, whether
general or particular, establishing rules expressly
recognized by the contesting states.
i. Treaties may codify, crystallize, or create obligations.
Codification is done where the treaty merely compiles
existing obligations to facilitate simplicity, as in the case
of the 1982 UNCLOS. Crystallization is done to formalize
as an obligation existing state practice, as in the case of
the 1958 Geneva Continental Shelf Convention. Creation
is done where the treaty itself is the first time wherein
such obligation was created between the parties, as is
usually the case in bilateral trade agreements.
ii. Treaties, just like domestic law, are governed by the
rules on Lex Posterior and Lex Specialis. Lex Posterior
provides that a later treaty overrides a prior treaty in
case of incompatibility while lex specialis provides that a
more specific treaty should be followed if in conflict with
a more general treaty.
iii. Treaties may be bilateral or multilateral, depending on
how many parties are involved. Multilateral treaties are
usually general in nature and establish common
principles of law, while bilateral treaties are usually for
the regulation of particular conduct such as trade.
iv. Law between the parties. Regardless of how many
states are involved, it must always be remembered that
a treaty becomes the law between the parties who gave
their consent thereto. Although there are instances
where states who do not give their consent are bound by
treaties, such as situations wherein a treaty is merely
meant to codify existing practices regarding jus cogens,
the general rule still stands that states are only bound to
the treaties they gave their consent to, and only to the
extent by which they allowed themselves to be bound.
b. International Customs, as evidence of a general
practice accepted as binding law through persistent
usage over a long period of time, e.g., angary, exemption
of unarmed fishing vessel from capture. 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 opinion juris or a
sense of legal obligation.
i. Definition. In the Asylum Case [(1950, ICJ Rep 266], the
ICJ held that custom is defined as ‘’constant and uniform
usage accepted by law’.
ii. Scope. Custom may be general or regional. In either
case, the elements of a custom must both exist and be
proven. See: Asylum Case 1950, where the Court ruled
that although a regional custom can exist, the same must
still be proven; Right of Passages Case 1960 [(1960) ICJ
Rep 6], where the ICJ again affirmed the possibility of a
regional custom but denied the Portugal’s claim since it
failed to prove that such a custom existed.
iii. Elements. The two main elements of custom which
must concur are State practice and opinion juris. As sub-
elements of State practice, the practice in question must
be demonstrated to have been general, uniform, and
over a long enough period of time to enable it to
crystalize (duration). See: Nicaragua Case [(1986) ICJ Rep
14], where ICJ discussed custom and its elements
extensively; North Sea Continental Shelf Case 1969
[(1969 ICJ Rep 3)], where the sub-elements of State
practice were discussed extensively.]
iv. Evidence of Custom. According to Brownlie, custom
can be proven using a wide range of instruments
including diplomatic correspondence, press releases,
opinion of official legal advisers, executive decisions and
practices, judicial decisions, legislation, and resolutions
of the United Nations General Assembly, among others.
Although a large number of States performing the same
conduct may create a presumption that there is in fact a
custom in existence, such a presumption is not
conclusive and may be rebutted with a wide range of
evidence, (See:J. Crawford, brownlie’s Principle of Public
International law, 2012)
a) The Baxter Paradox, under the Baxter Paradox, named
after Professor R.R. Baxter, it is believed that as more and
more States subscribe to a treaty , the understanding of
the contemporary status of customary international law
will decrease because the actions of States are already
expressly guided by a real obligation under the treaty
and not a mere sense of opinio juris. Thus, Baxterposists
that if a treaty becomes so popular as to only have a
handful of States not party to it, those handful of States
would be the onl;y ones capable of generating custom,
but simultaneously their task appears to be the
Herculean since custom requires a wider and much more
general application or observance of conduct.
v. State Practice. State practice consists not only of what
States say or do but also of what they fail to say or do. As
mentioned earlier, State practice has three sub-elements
which are generality, uniformity, and duration. (See;
North Sea Continental Shelf Case 1969)
a) Uniformity. According to the Nicaragua Case 1986,
although uniformity is required, absolute uniformity by
all States is not. As such, substantial uniformity of a given
practice among States is enough. Following the North
Sea Continental Shelf Case 1969, actual uniformity is not
required provided that the practices of the States are
extensive and virtually uniform with one another.( Also
see; Anglo-Norwegian Fisheries Case 1951 [(1951) ICJ
Rep 116], where the ICJ ruled that some degree of
uniformity amongst State practices is essential before a
custom can exist).
b) Generality. Given that a custom can be either general
or regional, the practice under consideration must be
widespread among the States that are particularly
involved in the relevant activity. Thus, the universality of
a given practice is not a requirement. (See: Asylum Case
1950)
c) Duration. Although the length of time required for a
practice to crystallize into State practice varies from
situation to situation, the ICJ in the North Sea Continental
Shelf Case (1969) stated that the time period must be
long
d) Instant Custom. Although scholars have been arguing
for the existence of an instant custom, especially in the
aftermath of the 9/11 terrorist attacks, the ruling of the
ICJ in the North Sea Continental Shelf case 1969 should
still be controlling insofar as it prescribes the elements of
uniformity and generality are shown to exist, must still
take place before a practice can crystallize into State
practice.va
vi. Opinio Juris. According to the Lotus Case ([1927]) PCIJ
Series A, No. 10), opinion juris constitutes a State’s belief
that it is acting due to legal obligation. The fact that a
State is acting in accordance with opinion juris is never
presumed and must always be proven.
vii. Legal Conundrum. Should opinio juris precede State
practice or should it already be present when the
practice is performed? Although this question has not yet
been formally resolved, it must nevertheless be
understood that custom can only arise once both
elements concur.
viii. Persistent Objector. The mere existence of a custom
may not necessarily be enough to bind States,
particularly those who qualify as persistent objectors.
Following the Anglo-Norwegian Fisheries Case 1951, a
persistent objector is one who objects to the practice
from the early stages of the practice and maintains the
said objection consistently.
ix. Exception to Persistent Objector. As an exception,
mere objection at the beginning is not enough for a State
to claim it is a persistent objector: a State cannot claim
to be persistent objector when the practice being
objected to has already attained the status of jus cogens.
x. Relationship between Treaty and Custom. Generally, if
there is a conflict between a treaty and a custom, a treaty
is superior. The exception to this rule is if the custom
involved is jus cogens. Also, a treaty may create custom,
provided, it was intended to be norm-creating custom,
and a State may be bound by both a treaty and a custom
at the same time insofar as they do not conflict with each
other. (See North Sea Continental Shelf case 1969, where
ICJ examined whether the equidistant principle
contained in the 1958 Geneva Convention on the
Continental Shelf had already become custom;
Nicaragua Case 1986, where the ICJ ruled that the mere
fact that the a custom is enshrined in a treaty does not
prohibit the Court from entertaining a claim seeking
relief based on violation of custom; Fisheries Jurisdiction
Case [(1974) ICJ Rep 3], where the ICJ ruled that the
Iceland was still bound by a treaty it had earlier signed
despite the emergence of newer practices among States
provided the obligation in the treaty had not radically
changed.)
c. General Principle 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 applies 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.
i. Definition. General principle of law are propositions of
law that are so fundamental that they are found in
almost all legal systems. Notably, general principles of
law are a separate source of law from both treaty and
custom.
ii. Purpose. General principles of Law were introduced as
a source of law in order to combat the problem on non-
liquet or the absence of any source of law or obligation
to point to in order to resolve the conflict). As such, even
absent a particular treaty or custom, the Court may not
renege on its duty to decide a case since it is allowed to
rule on the matter on the basis of general principles of
law
iii. Scope. Although it is unclear what the formal scope of
general principles of law is, the decisions of the ICJ seem
to lean towards general principles of law encompassing
both private law and public law concepts. See: Advisory
opinion on the Effect of Awards of Compensation Made
by the United nations Administrative Tribunal [(1954) ICJ
Rep 47], where the ICJ acknowledge the principle of res
judicata; Temple of Preah Vihear case [(1962) ICJ Rep 6]
where the ICJ used the principle of estoppel in finding
Thailand to have recognized Cambodia’s sovereignty
over disputed territory; Corfu Channel Case [(1949) ICJ
Rep 4], where circumstantial evidence, in the absence of
direct evidence, was used to ascertain whether or not
Albania was liable for the sinking of British Ships; Status
of Eastern Carelia Case [(1923) PCIJ Series B. no. 5],
where the PCIJ ruled that it could not rule on the matter
because it did not have jurisdiction over Russia who was
the respondent; Chorzow Factory case [(1927) PCIJ series
A, No. 9], where the PCIJ used the principle that taking
requires compensation to be valid when it decided a case
involving damages; The Separate opinion of Justice
McNair in the Advisory Opinion on the International
Status of the South West Africa 1950 [(1950) ICJ Rep 128],
where the general principle of trusts was discussed in
relation to the advisory opinion; LIAMCO v. Libya 1981
(20 1LM 1), where the general principle of equity was
used in determining the amount of damages.
[Note: 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 must
not, however, confused with the principle of equity since
equity is a part of the judicial function and can be applied
at any time, whereas the principle of ex acquo et bono,
which considers only socio-economic and political
considerations, may only be applied when asked for by
the parties.]
As Secondary Sources:
a. 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 the
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.
i. Binding Effect. Following the Article 59 of the ICJ
Statute, the decisions of the ICJ have no binding effect
except as to the State parties and only in respect of that
particular case.
ii. Judicial Legislation. Despite res judicata being
generally inapplicable with regard to decisions by the
international tribunals, as a rule which the tribunal
adopts, when the same is not based on any existing rule
at the time of the decision, results- by such decision of
the tribunal – a new, provisional rule being followed. (
See : Anglo-Norwegian Fisheries Case 1951, where the
ICJ decision fixing Norway’s baselines were based more
on historic and economic considerations rather than a
formal source of international law; Reparation
Case [(1949) ICJ Rep 1740], where the ICJ created the
guidelines to be used by the United Nations in presenting
international claims against both members and non-
members of the UN, in order to seek reparations for
damages sustained by the UN or any of its agents.)
iii. Judicial Legislation and Custom. When judicial
legislation occurs, and its basis is the practice of States,
does this mean that such a practice is now custom?
Likewise, can a judicial decision which has all the
elements of custom be considered customary? Although
these questions appear to be purely academic, they
could have an effect on the future understanding of the
sources of international law.
iv. Judicial Consistency. Despite the general
inapplicability of res judicata with regard to decisions of
international tribunals, these tribunals nevertheless
follow the rule on judicial consistency. This rule provides
that, as much a s possible, rulings should not deviate
from already settled matters except when necessary.
v. Local Jurisprudence. According to the German interests
in polish Upper Silesia Case [(1926)] PCIJ Series A no. 7],
the PCIJ remarked that from the viewpoint of
international law, municipal law, including legal
decisions of domestic courts, are merely facts from
which can be inferred the will of the State and its
activities.
vi. Judicial Courtesy. In the Advisory opinion on the
Interpretation of Peace treaties with Bulgaria, Hungary,
and Romania [(1950) ICJ Rep 221], the ICJ clarified that
when it is requested for an opinion regarding case, if the
result will materially affect the decision in the pending
case, the ICJ will not hesitate to decline the request for
an opinion.
b. Writings of Publicist, which must be fair and unbiased
representation of international law by acknowledged
authorities in the field.
i. Publicist are a particular class of learned scholars
whose writings are regarded as being persuasive sources
of international law. Although they are merely
considered as subsidiary sources of international law,
they play a primary role in helping practitioners and non-
practitioners alike in better understanding various
concepts in law. Example of these publicists are Grotius,
Vattel, Oppenheim, Rousseau, and Lauterpacht.
ii. Caution. Despite their role in the understanding and
development of international law, such writings are not
immune from losing their value over time. As such, while
some writings are of great importance today, unless they
are updated, they could be significantly less important in
the future.
becomes clear that States cannot evade their jus cogens
by creating a treaty or pointing to one already existence.
5. Other sources of Law. Although not explicitly
mentioned under Article 38, other possible sources of
law are resolutions international organizations, soft laws,
and equity. In the Nicaragua case 1986, the ICJ despite
much criticism, examined, and appreciated a resolution
by the Un General Assembly as possible evidence of
obligation.
a. Soft laws. Soft laws are mere guidelines for conduct.
With regard to the Philippines, these are not considered
as binding. (See: Pharmaceutical and Health Care
Association of the Philippines vs. Health Secretary
Francisco T. Duque [G. R. No. 173034], where the
Supreme Court ruled that although soft laws can
influence the behavior of States, they are still considered
as non-binding norms, principles, and practices)
b. Lex Mercatoria. Although not strictly a law which is
imposed by a sovereign, lex mercatoria, which has
evolved through the practice of businessmen, is still
hugely a part of international commercial law.

4. Interpretation of Article 38. Although the provision is

silent on the question of whether the three primary
sources have the same hierarchic value, by practice,
treaties take precedence over customs, and custom over
general principles of law, except:

a. The principle of Jus Cogens. Jus cogens is defined as

that part of customary international law which has the
status of a peremptory (absolute, uncompromising,
certain) norm of international law. A peremptory norm is
a norm accepted and recognized by the international
community of States as a rule, from which no derogation
is permitted and which can be modified only by a
subsequent norm having the same character. Examples
are slaves trade, piracy, and terrorism. See Hilao v,
Marcos (25 F.3d 1467), where it was held that official
torture of prisoners/dissenters are violation of the
principle of jus cogens.

i. Following Article 53 of the VCLT, a treaty is void if it

comes into conflict with a peremptory norm of
international law. Furthermore, Article 63 of the VCLT
provides that if a new peremptory norm emerges, all
treaties in conflict with it are rendered void. As such, it