Pil Cases

P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER
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Bernas + Brownlie + Cruz + Shaw + Lecture Notes
CHAPTER I THE NATURE OF INTERNATIONAL LAW

INTERNATIONAL LAW, IN GENERAL
What is international law?
It is the law governing the conduct of states and of international organizations and with their
relations inter se, as well as with some of their relations with persons, whether natural or
juridical. 1
What is the scope of international law?
Generally, international law covers a wide range of matters involving maintenance of peace,
protection of the environment, human rights, war, and space expeditions among other things.2
Under international law, there are subjects and objects.
Who are the subjects and objects of international law?
According to the Reparations Case, a subject of international law is an entity capable of
possessing international rights and duties and having the capacity to maintain its rights by
bringing international claims.
Objects of international law, on the other hand, are those who indirectly have rights under, or
are beneficiaries of, international law through subjects of international law.
Is international law a law?
Strictly speaking, there can be no law binding all sovereign states. However, according to
Henkin, there remains a general respect for law, by virtue of which the States observe the
principles of international law.
Public International Law governs the relationship among States and also their relations with
international organizations and individual persons.
Private International Law (Conflict of Laws) is domestic law which deals with cases wherein
foreign law intrudes into the domestic sphere. It concerns: first, in which legal jurisdiction may
a case be heard; and second, the law concerning which jurisdiction applies to the issues in a
case.
JUS GENTIUM AND JUS INTER GENTES AS ELEMENTS OF PUBLIC

INTERNATIONAL LAW.
What is jus gentium?
Jus gentium was originally part of Roman Law that the Romans applied to its dealings with
foreigners, especially provincial subjects. Presently, it is used to refer to the natural or common
law among nations considered as States within a larger human society, especially governing the
rules of peace and war, national bounderies, diplomatic exchanges, and extradition. Together
with jus inter gentes, jus gentium makes up Public International Law.
What is jus inter gentes?
Jus inter gentes consists of agreements between nations and includes the body of treaties, UN
conventions, international agreements, and internationally recognized human rights.
HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW
THEORIES ON INTERNATIONAL LAW
1.
2.
3.
Command Theory (John Austin) law consists of command emanating from a

sovereign. Under this theory, international law is not law because it does not
emanate from a sovereign.
Consensual Theory international law derives its binding force from the consent of
the States. (ex: treaties, custom)
Natural Theory law is derived by reason from the nature of man. International law
is derived from the application of natural reason to the nature of the state-person.
What is the difference between Public International Law and Private International Law?
1
2
Restatement of Foreign Relations Law of the United States

Bernas; Public International Law, 2010.
Jus gentium (law common to all men) evidenced from treaties between Jews and
Romans
Hugo Grotius authored De Jure Belli ac Pacis and coined the term law of nations.
Later given the name international law by Jeremy Bentham
Peace of Westphalia (1648)
o Ended the Thirty Years war (1618-1648) and established a treaty based
framework for cooperation.
o Gave birth to pacta sunt servanda3
Congress of Vienna (1815)
o Ended the Napoleonic Wars and created a sophisticated system of
multilateral and economic cooperation.
Covenant of the League of Nations (1920)
o Ended World War 1 and included the Treaty of Versailles4
pacta sunt servanda simply means that agreements made must be complied with in good faith. This
principle is found in Article 26 of the VCLT.
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League of Nations (1920)

o The LoN was created as a result of the Treaty of Versailles, and was the
precursor to the United Nations, at most it had 58 member states.
o The League also created the Permanent Court of International Justice
(PCIJ), which is the precursor to the current International Court of Justice
(ICJ).
o The United States was not a member of the League of Nations
o The problem was that the League of Nations was not able to prevent World
War II. This was because the mechanism of the League of Nations
provided not for the prevention of war, but merely for a cool off period. If
after such time, they still desired to make war with each other, there was no
obligation for them not to do so.
World War II (1939-1945)
United Nations (1945)
o The LON was unable to prevent World War II from occurring. There arose
a need to establish a new international institution that shifted power away
from Europe. Hence, the UN was born.
Cold War (1947-1991)
o Primarily a war between the Soviet Union and the US and its allies.
o During this period, three factions arose in the inernational community: the
Western States, the socialist states and the developing countries.
1995 was a very important year for the development of international law, as this was
the year that the WTO was created. WTO had, and still has, the most effective
dispute settlement system, even more effective than the ICJ.5
4
The Treaty of Versailles was entered into in June 28, 1919. It was primarily for the purpose of ending
World War 1 and charged former German Emperor, Wilhelm II, with supreme offense against international
morality. He is to be tried as a war criminal.
5
Lecture, November 18, 2010
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State practice has three elements:

(a) Duration
o There is no required length of time before a particular state practice
may be considered custom. Provided that the principles of consistency
and generality are proven, there is no necessity of passage of a long
period of time. However, the passage of time can also be evidence of
generality and uniformity.
o Example: exemption of fishing vessels from being captured as prize of
war (Paquete Havana case)
o Is there such a thing as instant custom?
YES. According to the ICJ in the North Sea Continental Shelf Cases,
an instant custom, involving a fairly quick maturing of practice, may
emerge. As already discussed above, so long as consistency and
generality are proven, state practice need not be extant for long periods
of time. Consistency and generality are sufficient to evidence a general
recognition for a legal obligation.
(b) Consistency
o State practice must be continuous and repetitive.
o Consistency was discussed in the Asylum Case. In this case, however,
the Court held that Colombia was not able to prove the constant and
uniform practice of unilateral right of refuge of a State and an
obligation upon the territorial state.
(c) Generality
o Practice need not be exactly the same throughout States; it only needs
to be substantial.
o Universality is not required. As a matter of fact, according to the
Asylum Case, there are instances when a regional custom, or a practice
present and binding only to a particular region, may arise.
CHAPTER 2 THE SOURCES OF INTERNATIONAL LAW

SOURCES OF INTERNATIONAL LAW
What are the sources of international law?
According to Article 38(1) of the Statute of the International Court of Justice, the sources of
international law are:
(1) International conventions, whether general or particular, establishing rules expressly
recognized by contesting states
(2) International custom, as evidence of general practice accepted as law
(3) Generally accepted principles of law recognized by civilized nations
(4) Judicial decisions and works of the most highly qualified publicists of various
nations, as subsidiary means for the determination of the rules of law.
Note, however, that what the Statute provides is a directive to the court in resolving conflicts;
it does not speak of sources. In any event, this is the most widely accepted statement with
regard to the sources of international law.
What is the implication of this enumeration?
It is not exclusive; therefore there can be other sources of international law.6
I. INTERNATIONAL CONVENTIONS
What is a treaty?
A treaty is defined an international agreement concluded between states in written form
and governed by international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation.7
II. CUSTOM
What is custom?
According to the North Sea Continental Shelf Cases, it consists of unwritten rules evinced from
the generality and uniformity of the practice of States and is adhered to by such states out of a
sense of legal obligation or opinio juris.
There are, therefore, two elements of custom:
1. State Practice
2.
Opinio Juris
Opinio Juris is the belief that a certain form of behavior constitutes a legal
obligation. According to Brierly, it is the recognition by States that a certain practice is
obligatory and that it requires a conception that the practice is required by or consistent with
prevailing international law. It means that a State abides by a practice because of a sense of
legal obligation, as opposed to motives of courtesy, fairness, or morality.
What is wrong with this definition of opinio juris?8
Lecture, November 25. 2010

7
Article 2(1)a, VCLT
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The definition seems to be circular, in that opinio juris is a belief that a behavior is a legal
obligation. In that sense, it cannot be in the strict sense considered a legal obligation if it
arises from mere belief.
Is custom binding on all States?
Generally, States are bound by custom. Exception: when the state, from the very beginning, has
expressly objected to the applicability of the said customary behavior to its own State. This is
called the principle of persistent objector.
parties ratification of that treaty is an expression of their consent to be bound by such, and the
principle of pacta sunt servanda should be observed.
Situation 2: If a treaty was entered into before a custom develops, the rules are not clear. It
would seem that custom, being the latter intention, should prevail. This, however, would run
counter to the very nature of a treaty. In the Continental Shelf case, the court attempted to
reconcile treaties with custom. In practice, therefore, the solution to this situation would be to
reconcile custom with treaty provisions.
What about when, in a region of States, there has already been a long-standing custom
and there emerges a new State. Is the New State bound to comply with the existing
customs?9
NO, it will not be bound by such custom. NOT because it was a persistent objector, because
obviously it was a nonexistent State at the time the custom began. It is not bound by virtue of
the fact that it did not consent to the custom and therefore such custom is not binding on the
New State in any respect.
III. GENERALLY ACCEPTED PRINCIPLES OF LAW
Is there such a thing as instant custom?

YES. An example would be the Sept. 11 bombing which gave rise to an instant custom,
classifying the attack on the WTC as an armed attack under Article 51 of the UN Charter.10
Note that what matters in determining the existence of custom is not so much the lapse of time
(while in most instances, this may be strong evidence of proving custom), but rather the
concurrence the elements of generality and uniformity. The moment that the September 11
bombing happened, a substantial number of States have concurred in the opinion that such
constituted an armed attack, and therefore would warrant the USs valid exercise of self
defense. (self-defense will be discussed in greater detail in later chapters)
IV. JUDICIAL DECISIONS AND WORKS OF THE MOST HIGHLY QUALIFIED

PUBLICISTS
TREATY VS. CUSTOM

What is the relationship between treaty and custom?
Treaties can generally, but not always, serve as evidence of opinio juris.
Does a treaty override custom?
It depends.
Situation 1: If a treaty was entered into after a custom has been established, it can be said that
the treaty will govern as regards the parties who entered into it. This is so because, the State-
Generally accepted principles of law are principles of municipal law common to the legal
systems of the world. International tribunals must have recourse to rules typically found in
domestic courts and domestic legal systems in order to address procedural and other issues.
Examples are: principles of estoppel and equity
Judicial Decisions under municipal law and works of MHQP are regarded as subsidiary sources
of international law. What this means is that they are subject to the Statute provision on
consent11, meaning that the decisions have no binding effect except as regards State-parties that
gave their consent.
MHQPs are generally authorities such as writers and publicists. There is really no specific
qualification, but the acceptance of the writings of these MHQPs depend on the judges
themselves and the courts tradition.
Examples of MHQPs: Brownlie (wrote on everything about basic international law), UN
reporters and special rappertours, Malcolm Shaw
THERE IS NO STARE DECISIS IN INTERNATIONAL LAW.

This is so because first, the ICJ only derives its jurisdiction from the consent of the Stateparties coming before it, and submitting themselves to the jurisdiction of the Court. Without
this consent, the ICJ has no jurisdiction at all to determine the rights and obligations of States.
Second, Article 59 of the Statute expressly provides so.

will be discussed in greater detail later, but for the purposes of instant custom, an armed attack situation
is the ONLY valid justification for a State to violate the provision against the use of force under Article
2(4) of the UN Charter.
10
11
Article 59, ICJ Statute
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Therefore, the effect of this would be that State-parties cannot oblige the court to decide on
their case in the same manner that the Court decided in previous similar cases. At most, these
decisions are highly persuasive but not binding upon the Courts.
If there is no stare decisis, then why would we still need to look at previous decisions of
the ICJ? Why do we still study them if they have no effect on future decisions anyway?12
Because its convenient.13 Since past ICJ cases have already been decided, laws have already
been interpreted and facts already appreciated, there is nothing precluding the ICJ from looking
into these past decisions for purposes of assisting them in resolving cases before the court.
Soft Law
These are international agreements not concluded as treaties but are actually practiced with
consistency and uniformity. They have not, but are in the process of, achieving the status of
custom.
Example: duty to protect the environment16
EQUITY AS A SOURCE OF INTERNATIONAL LAW

The court is not precluded from applying equity as part of international law, when the needs of
justice so require. Note that equity falls under Generally Accepted Principles of Law which,
under Article 38 of the Statute, is a valid source of international law. The principle of equity
was applied in the case of Netherlands v. Belgium14. Basically, what the Court held in this case,
was that Netherlands cannot claim nor can Belgium counter-claim when both of them come to
court with unclean hands, Netherlands having built a lock, and Belgium having built canals
obstructing water flow of the Meuse River.
OTHER SUPPLEMENTARY EVIDENCE (OTHER SOURCES OF

INTERNATIONAL LAW)
U.N. Resolutions
UN Resolutions have NO binding effect, but can only serve as evidence of customary
international law
As a general rule, UN Resolutions are NOT binding. Then what purpose do they serve in
the international community? At most, they serve as highly persuasive evidence of the
States consent to the subject of the Resolution and may therefore be evidence of
customary law.
Exception: There are certain UN Resolutions that are binding, depending on the
subject of the Resolution. When made under Article VII of the UN Charter (Action
with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression)
of the Charter, resolutions are binding.
Example: UN SC Resolution 167415
12
Lecture, December 2, 2010

Atty. Gatdula
14
The Meuse River Case, evincing the doctrine of unclean hands.
15
Adopted April 28, 2006, commiting the Council to protect civilians in cases of armed conflicts.
13
16
1992 Rio Declaration
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CHAPTER 3 THE LAW OF TREATIES

The primary law governing treaties is the 1969 Vienna Convention on the Law of Treaties.17
TREATY, DEFINED.
It is a written agreement between States, governed by international law, and

embodied in a single instrument or a series of related instruments, in whatever
designation it may be given.18
It is a formal agreement, usually but not necessarily in writing, which is entered into
by the states or entities possessing the treaty-making capacity, for the purpose of
regulating their mutual relations under the law of nations. 19
Is there such a thing as an oral treaty?

YES, however such treaties would not come within the contemplation of the VCLT and
therefore would not be governed by the VCLT. There is really no required form, but the treaty,
to come under the definition of the VCLT, must at least be in writing, agreed to by the States,
and governed by international law.
In Qatar v. Bahrain, the ICJ held that a mere exchange of letters constitutes a valid treaty
between the two States.
What is the effect of unilateral declarations?
The Court held in the Nuclear Test Cases that unilateral declarations can have the effect of
creating legal obligations when two elements are present: first, there is clear intent to be bound
by the declaration, and second, the commitment is very specific.
FUNCTION OF TREATIES
Generally, treaties serve as sources of international law, charters of international
organizations, means of settling disputes, among other things.
KINDS OF TREATIES
1. Multilateral treaties
o Multilateral treaties are generally open to all States
o Examples:
o Geneva Convention, Rome Statute20
17
Hereinafter, VCLT
Art. 2 par. 1(b) VCLT
19
Cruz
20
July 17, 1988
18
2. Treaties that create collaborative mechanisms

3. Bilateral treaties
o Only binding between the State-parties.
o Examples: JPEPA, Philippine-Indonesia Extradition Treaty
ESSENTIAL REQUISITES TO A VALID TREATY
(1) Treaty-making capacity
A treaty to be valid must be entered into by parties with treaty making
capacity.
All states have full treaty-making capacity unless limited by reason of their
status and previous self-imposed inhibitions.
The United Nations and its organs (i.e. the Security Council, the Economic
and Social Council) and international bodies like the World Health
Organization may enter into treaties.
(2) Authorized representatives
It is for municipal law to determine which organ of the state shall be
empowered to enter into treaties in its behalf. (i.e. The Constitution
authorizes the President to make treaties subject to a concurrence of twothirds of all the members of the Senate).
General Rule: A state is not bound by a treaty made in its behalf by an
organ or authority not competent under the law to conclude the treaty.
Exception: A state may be responsible for an injury resulting to
another state for reasonable reliace by the latter upon the
misrepresentation of the former.21
(3) Freedom to consent
Fraud or mistake will invalidate a treaty as it would an ordinary contract.
(4) Lawful Subject Matter
When the subject matter of a treaty is illegal, it is rendered null and void.
Example: The Treaty of Tordesillas of 1949 is invalid for illegality of the
subject matter insofar as it sought to divide between Spain and Portugal
parts of theAtlantic, Pacific, and Indian Oceans which are opean seas.
(5) Compliance with the Constitutional Processes
Ratification processes are governed by municipal law. Non-compliance
with this requisite will prevent the enforcement of the treaty even if already
signed by the negotiators.
THE MAKING OF TREATIES

Steps in the making of treaties:
Negotiation Authentication of Text Consent to be bound Reservations (if any)
Entry into Force
21
Harvard Research on International Law cited by Isagani Cruz
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The ratification, approval or acceptance will have the effect of binding a state to a
treaty when the treaty so provides, the States agreed to give it that effect, the
representative of the State signed it subject to ratification, or the States so intended.25
Ratification is followed by either an exchange of ratification or deposit of

ratification.
Accession
This applies to States that did not participate in the initial negotiations.
Accession binds a state when the treaty so provides, when the negotiating parties
have agreed that such consent may be expressed by accession, or when all the
subsequent parties have agreed that consent is expressed by accession.
Step 1: Negotiation
Negotiations are usually done through foreign ministries.
Negotiators have the power to negotiate, naturally, a treaty entered into by one who is
not authorized to do so is invalid and without effect.
Two elements must be present for someone to be considered with full powers to
represent a state:
(1) he produces appropriate full powers
(2) The practice of States so provide for evidence that there is an intention to
consider that person a representative of the State.
Who are empowered to enter into treaties as representatives of their States?

(1) Heads of States
(2) Ministers of Foreign Affairs
(3) heads of diplomatic missions
(4) accredited representatives of States to international conferences or to an
international organization.
Step 2: Authentication
This is evidenced by the signing of the document.
The manner by which such authentication is primarily guided by the procedures set
forth in the treaty itself. If not followed, then the signature ad referendum or initialing
of representatives will serve as sufficient authentication.22
Step 3: Consent to be bound
There are several means of expressing consent: signing, ratification, acceptance, approval or
accession, exchange of instruments, or other means if so agreed.
1. Signing
The act of signing will have the effect of binding a state to the treaty when the treaty
so provides, or when it is the intention of the parties that the signature would have
that effect, or when the parties agree that the signature would have that effect.23
2. Exchange of Instruments
The exchange of instruments will have the effect of binding a state to the treaty when
the instruments themselves provide for such effect, or when it is otherwise
established that the States agreed that the exchange would produce that effect.24
3. Ratification, approval or acceptance
4.
Step 4: Reservations
A reservation is 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 certain provisions of the treaty in their application to the State.26
A reservation is different from an interpretative declaration. The latter refers merely to the
expression or the interpretation of the State of the treaty, it does not in any way constitute
derogation from the treaty.
Article 19
Generally, States may make reservations. EXCEPT WHEN:
(1) Reservation is prohibited by the treaty
(2) The treaty provides for only specified reservations
(3) When the reservation would be contrary to the object and purpose of the treaty. 27
Article 20
(1)
A reservation expressly authorized by a treaty does not need subsequent acceptance
by the other State-parties.
(2)
A reservation requires the acceptance of all the parties when it appears that the
application of the treaty is an essential condition of the consent of each State-party to be bound
by the treaty.
(3)
When a treaty is a constituent instrument of an international organization and unless
it otherwise provides, a reservation requires the acceptance of the competent organ of that
organization.
(4)
In cases not falling within the preceding paragraphs and unless the treaty otherwise
provides:
22
25
23
26
Articles 9 and 10, VCLT

Article 12, VCLT
24
Article 13, VCLT
Article 14, VCLT

Art. 2, VCLT
27
Art. 19, VCLT
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a.
b.
c.
acceptance by another contracting State of the reserving States reservation

makes the reservaing State a party to that treaty in relation to the accepting State.
An objection by another contracting State does not preclude entry into force of
that treaty as between the reserving State and the objecting State, unless a
contrary intention is definitely expressed by the objecting State.
A reservation is effective as soon as at least one other contracting State has
accepted the resrervation.
THE PHILIPPINES AND THE 1982 CONVENTION OF THE LAW OF THE SEA
(5)
A reservation is deemed accepted by a State if it did not raise any objection to the
reservation by the end of the period of 12 months after it was notified of the reservation or by
the date on which it expressed its consent to be bound by the treaty, whichever is later.
Legal effects of reservation:
1. A reservation established with regard to another party:
a. modifies for the reserving state in its relations with that other party the
provisions of the treaty
b. modifies those provisions to the same extent for that other party in relation
to the reserving State.
2. The reservation does not modify the provisions of the treaty for the other parties to
the treaty inter se.
3. When a State objecting to a reservation does not oppose the treatys entry into force
between itself and the reserving State, the provisions to which the reservation relates
do not apply as between two States to the extent of the reservation.
Withdrawal of reservations and of objections
Withdrawal of a reservation may be made at any time, and the consent of the accepting
State is not required.
Withdrawal of an objection may be made at any time.
As to effectivity:
o The withdrawal of a reservation becomes operative in relation to another
contracting State only when it receives notice thereof
o The withdrawal of an objection becomes operative only when notice
thereof has been received by the State which formulated the objection.
Form and Procedure of Reservation:
Reservations must be in writing, and formally confirmed by the reserving State
The acceptance of the reservation DOES NOT itself require confirmation
Withdrawal of a reservation or objection must be in writing
The Philippines, upon its ratification of the Convention of the Law of the Sea, on the
August 5, 1984, made a reservation. This is so because there is a conflict between
Article I of the Philippine Constitution and the provision of the Conveneion on
archipelagic waters.
The reservations are as follows:
1. The signing of said Convention shall not in any manner impair or prejudice the
sovereign rights of the Philippines.
2. The signing shall not impair the sovereign rights of the Philippines as a successor
of the United States.
3. The signing shall not affect the rights and obligations of the Contracting Parties
under the Mutual Defense Treaty28 and its related instruments, or other treaties to
which the Philippines is a party.
4. The provisions on archipelagic passage do not nullify or impair the Philippines
sovereignty as an archipelagic state. What this means is that it remains with authority
to enact legislation over sea lanes, particularly when necessary to protect its
sovereignty, interest, and security.
5. The concept of archipelagic waters is deemed similar to the concept of internal
waters under the Philippine Constitution; more importantly, it removed straits
connecting these waters with the economic zone or high sea from the rights of
foreign vessels to transit passage for international navigation.
Step 5: Entry into Force
A treaty enters into force on the date the parties agreed to. If there is no such
agreement, then the treaty enters into force on the date of consent.29
A treaty may be provisionally applied when the treaty itself provides, or when the
negotiating parties so agree.30
APPLICATION OF TREATIES
Treaties must be complied with in good faith, pursuant to the principle of pacta sunt
servanda.
When there is conflict between Municipal Law and International Law (further
discussed in Chapter 4)
28
entered into between the Philippines and the U.S. on August 30, 1951
Art. 24, VCLT
30
Art. 25, VCLT
29
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A State may NOT its domestic laws as a justification for violation of its
obligations under international law.31 Unless otherwise provided, the treaty applies to
the entire territory of the State-party. 32
BINDING EFFECT OF TREATIES

General Rule: Treaties are binding only on the contracting parties
Exception: Third states may be validly held to the observance of or benefit from the
provisions of a treaty.
The treaty may be merely a formal expression of customary international law

which is enforceable in all civilized states.
A treaty may expressly extend benefit to non-signatory states (i.e. the HayPauncefote Treaty of 1901).
INTERPRETATION OF TREATIES
Treaties are to be interpreted taking into consideration three elements: the ordinary
meaning of the words, the purpose of the treaty, and the special meaning given to it by
parties.33
When there are ambiguities, recourse may be had to supplementary sources.
When a treaty is entered into in two or more languages, the general rule is that the treaties
are equally authoritative in all languages, except when the parties agree to making a
particular text prevail.
The terms are presumed to be of the same meaning, but if a difference arises, then the
meaning that will best reconcile both shall be adopted.
Air France v. Saks
Facts:
Saks was a passenger of Air France who later on suffered permanent deafness in her
left ear after landing in LA. She filed a case in a California State Court against Air France,
alleging that her deafness was due to Air Frances negligence in maintaining their
pressurization system. The contested term here is accident within the meaning of Article 17
of the Warsaw Convention.
District Court ruled in favor of Air France, CA reversed, ruled in favor of Saks.
Held:
Air France is not liable. Liability under Article 17 arises only when the passengers
injury is caused by an unexpected or unusual event or happening that is external to the
31
Art. 46, VCLT

Art. 29, VCLT
33
Art. 31, VCLT
32
passenger, and not when the injury is a result of the passengers own internal reaction to the
normal expected operation of an aircraft. Moreover, the provision of the Montreal Agreement
imposing absolute liability for injuries cannot deemed a waiver of the accident requirement
under the Warsaw Convention.
INVALIDITY OF TREATIES
Grounds for invalidating a treaty are:
1. error of fact
2. fraud
3. corruption of the States representative
4. duress
5. the treaty is a violation of jus cogens
Generally, a State may invoke the aforesaid grounds to invalidate a treaty. EXCEPT when the
State expressly agrees that it remains effective, or when the state acquiesces.
AMENDMENT AND MODIFICATION OF TREATIES

Amendment formal revision done with the participation of all the parties to the treaty.
Rules on amending treaties: (Art. 40)
Proposal to amend must be made known to all the contracting States.
These States shall take part in the decision-making, negotiation and conclusion of
any agreement for the amendment of the treaty.
Parties to the pre-amendment treaty are entitled to be parties to the amended treaty.
If the State is a party to one treaty but is no a party to the amended treaty, then
Article 30 par. 4(b) governs.34
Any State which becomes party to a treaty after entry into force of the amending
agreement shall:
o
be considered a party to the amended treaty
o be considered a party to the unamended treaty in relation to any party not
bound by the amended treaty.
Modification formal amendment involving some of the parties
Rules on modifying treaties: (Art. 41)
A treaty can only be modified when:

o Modification is provided for by the treaty
34
Art. 30 par. 4 (b) as between a State party to both treaties and a State party to only one of the treaties, the
treaty to which both States are parties governs their mutual rights and obligations.
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o
o
o
Modification is not prohibited by the treaty

Modification does not affect the rights and obligations of other States
Modification is not incompatible with the object and purpose of the treaty.
TERMINATION OF TREATIES
Treaties are terminated by:
Lapse of definite period provided for by the treaty
Purpose for which it was established has already been achieved
Material Breach
o In order to constitute material breach, it must at least be an act in
repudiation of a treaty, or a violation of a treaty provision essential to the
accomplishment of the object or purpose of the treaty. 35
Impossibility of performance
o In order to constitute impossibility of performance, the impossibility must
result from the permanent disappearance or destruction of an object
indispensable for the execution of the treaty.36
Rebus Sic Stantibus

o Rebus sic stantibus is the principle of fundamental change in circumstances
allowing States to suspend or terminate the application of a treaty
o Basically, it can be said that the general rule is pacta sunt servanda and
rebus sic statibus is one exception.37
Fisheries Jurisdiction Case

(United Kingdom v. Iceland)
Facts:
UK and Iceland bring this case before the Court in order to settle their dispute
regarding the extension of Icelands exclusive fisheries jurisdiction from 12 nautical miles to
50 nautical miles. Iceland previously entered into an agreement (through an Exchange of
Notes) with UK NOT to extend its fisheries jurisdiction, but it nevertheless did, thereby
violating its obligation to UK.
Issue: W/N the Court had jurisdiction (this is the primary issue, but the relevant part of rebus
sic stantibus is discussed in the ratio)
Held: The Court ruled that it had jurisdiction. Article 62 constituted customary international
law. In order for a State to validly invoke rebus sic stantibus, the change must have been
fundamental. The change should have resulted in a radical transformation of the extent of the
obligations still to be performed. The change must have increased the burden of the obligations
to be executed to the extent of rendering the performance of something essentially different
from that originally undertaken. 38
Namibia Case
(Namibia v. South Africa)
Facts:
South Africa is being mandated by the Security Council, by virtue of Resolution 276
(1970) to withdraw its administration over Namibia. It refused to do so, si Namibia sought
advisory opinion from the Court requesting that the Court determine what the legal
consequences are of South Africas continued stay.
Held:
The Court held that South Africa was under an obligation to withdraw from Namibia
and that other States have an obligation not to recognize South Africas administration in
Namibia. What is important to note here is that the Mandate by the Resolution is considered by
the court to have the same binding effect as an international agreement. Therefore, the
provisions of the VCLT on breach of treaty provisions can be considered as evidence of
customary international law. Applying this same view to the Mandate, an outright repudiation
of the Mandate and a violation of a provision essential to the Mandates purpose are means by
which we can determine whether a State has violated its obligations under international law.
Having committed these two outright breaches of the Mandate, the General
Assemblys resolution is the exercise of its right to terminate the relationship in view of the
outright violation of its international obligations.
35
Art. 60. VCLT

Art. 61, VCLT
37
I dont have a legal basis for this; I just learned and mapped this out from our previous discussions on
treaty law.
36
38
Par. 43
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Danube Dam Case

(Hungary v. Slovakia)
Facts:
Slovakia succeeds Czechoslovakia in the 1977 Treaty entered into between Czechoslovakia and
Hungary regarding the building of dams on the Danube River. Hungary suspended the
construction due to environmental concerns, to which Czechoslovakia responded by carrying
out unilateral measures. The treaty does not contain any provision regarding its termination.
Held:
In order to justify its unilateral termination of the said treaty, Hungary invokes the grounds of:
(1) state of necessity; (2) impossibility of performance; and (3) fundamental change of
circumstances. All of which have been deemed unmeritorious by the Court.
On the state of necessity, the Court ruled that this ground is not a valid ground for the
termination of a treaty, at most, it could be a justification for failure to implement treaty
provisions, but NOT termination thereof.
On the impossibility of performance, the Court ruled that Hungary cannot invoke this
ground as if Slovakias breach is only the result of Hungarys corollary breach of its
obligations. The investment was no longer possible because Hungary itself did not carry out the
works.
On fundamental change of circumstances, the Court held that the changed
circumstances invoked by Hungary (changes political in nature, progress of environmental
knowledge, etc.) are not of such nature so as to warrant a termination of the treaty.
TERMINATION OF TREATIES
Procedure:
A party invoking any of the grounds for termination must notify all the parties
If after the expiry of the period, which shall not be less than three months after the
receipt of the notification, no State objects, then the termination may be carried out in
accordance with Art. 67.
If a State objects, resort to Art. 33 of the UN Charter is necessary. 39

o If no solution has been reached after 12 months following the date of the
objection:
39
What Art. 33 requires is that States settle their dispute through negotiation, mediation, arbitration, and
other peaceful means.
Any one of the parties may submit it to the ICJ for a decision
unless the parties agree to submit to arbitration
Any one of the parties may set in motion the procedure laid down
in the Convention by submitting a request to the SecretaryGeneral of the United Nations.
The instruments containing the declaration of termination of the treaties should be in
writing, and must be communicated to other parties.
AUTHORITY TO TERMINATE
Who can terminate treaties?
The Convention does not provide. In the Philippines, however, the power to enter
into treaties is shared between the President and the Senate. The law does not specify who has
the authority to terminate, but as a corollary, those empowered to enter into them can be
deemed the same ones empowered to terminate them.
SUCCESSION TO TREATIES
A new State succeeding another State previously a party to a treaty is not obliged to
maintain in force that treaty or to become a party thereto. This is called the clean slate rule.
Exceptions to the clean slate rule:
1. Boundary Regimes succession does not affect boundaries already set by a treaty, or
obligations and rights established relating to the regime of a boundary.
2. Other territorial regimes succession does not affect use of any territory, or
restrictions thereof, or rights established by a treaty for the benefit of any territory.
The provisions on other territorial regimes do NOT apply to treaty

obligations of the predecessor State providing for establishment of foreign
military bases.40
40
Art. 12, VCLT
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CHAPTER 4 MUNICIPAL LAW AND INTERNATIONAL LAW
Under this theory, municipal law and international law are essentially the same.
There are two primary divisions with regard to the monist theory43:
1. The ethical position on human rights (supported by Lauterpacht)
The 'naturalist' strand sees the primary function of all law as concerned with the
well-being of individuals, and advocates that international law is the best way of achieving
this well-being. It is an approach characterized by deep suspicion of an international
system based upon the sovereignty and absolute independence of states, and by faith in the
capacity of the rules of international law to imbue the international order with a sense of
moral purpose and justice founded upon respect for human rights and the welfare of
individual.44
DUALISM AND MONISM

In international law, conflict between municipal law and international law often arise.
There are two theories that attempt to address this conflict: the dualist theory and the monist
theory. Basically, the dualist theory holds international law and municipal law to be two
distinct and separate laws. The monist theory considers international law and municipal law to
constitute only one system of law.
2. The formalistic logical approach (supported by Kelsen)

This approach finds its basis on Kants philosophy. Under this approach,
international law is superior to municipal law. Law is regarded as constituting an order
which lays down patterns of behavior that ought to be followed, coupled with provision
for sanctions which are employed once an illegal act or course of conduct has occurred.
Since the same definition appertains within both the internal sphere and the international
sphere, a logical unity is forged, and because states owe their legal relationship to one
another to the rules of international law, such as the one positing equality, since states
cannot be equal before the law without a rule to that effect, it follows that inter-national
law is superior to or more basic than municipal law.
Dualist Theory
Under this theory, international law and municipal law are two distinct systems of
law. The differ in several ways:41
Municipal Law
1. As to source
2. As to the relations they

regulate
3. As to substance
Arises from custom grown

up within the boundaries of
the State concerned and
statutes enacted by lawmaking authority.
State-person relations and
person-person
(interpersonal) relations
The law of the sovereign is
over individuals
International Law
Custom grown up among
States and law-making
treaties entered into by
them
State State relations
The law is not over, but
between
states,
and
therefore is the weaker law
According to most dualists42 , municipal law prevails. Dualists are positivists who put
strong emphasis on sovereignty. Why? Positivism stresses the overwhelming importance of the
state and tends to regard international law as founded upon the consent of states.
Emerging third approach: the no common field approach (supported by Fitzmaurice and
Rosseau)
There arises a third approach, under which there is no common field between
International Law and Municipal Law. It considers municipal law and domestic law as distinct
laws, much like the French Rule and the English Rule are different systems of law, one not
being superior over the other. They are both the legal element contained within the domestic
and international systems respectively, and they exist within different juridical orders. 45
MUNICIPAL LAW IN INTERNATIONAL LAW

The general rule is that a State may not invoke provisions of its own laws as a
justification for the violation of its obligations under international law.46 Neither may it claim
that its consent to be bound by a treaty has been expressed in violation of a provision of its
Monist Theory
43
Shaw, 2003. International Law, 5th ed.

Cited in Bernas,
45
Oppenheim's International Law, Vol. 1, 8th ed., 1958
46
Art. 27, VCLT
44
41
42
Oppenheim's International Law, Vol. 1, 8th ed., 1958

Dixon and Mccirquidale, Cases and Materials in International Law
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internal law regarding competence to conclude treaties as invalidating its consent. 47

The exception to the general rule is when there is a manifest violation of the
fundamental laws of the State concerned. It is manifest where it would be objectively evident to
any state conducting itself in the matter in accordance with normal practice and in good faith.48
The doctrine of incorporation

The doctrine of incorporation simply provides that international law is automatically
part of the law of the land without further need of legislation. The best known exponent of this
doctrine is Blackstone49
who, in his Commentary said:
Exchange of Greek and Turkish Population Case

A state that enters into a valid international obligation is bound to make in its
legislation such modifications as may be necessary to ensure the fulfillment of the obligations
undertaken.
Barcelona Traction Case
Facts: Belgium wants to seek damages from Spain for the losses suffered by its citizens who
are shareholders in the Barcelona Traction, Light and Power Company. Barcelona Traction was
incorporated in Canada, but pursuant to Spains refusal to authorize foreign currency transfers,
the Company went bankrupt and accordingly, its shareholders adversely affected. Spain
contends that Belgium has no locus standi.
Held: The Court ruled in favor of Spain, Belgium had no locus standi. In this case, international
law had to recognize the corporate entity and its shareholders in light of the existing municipal
law.
Brazilian Loans Case
(France v/ Brazil)
the law of nations, wherever any question arises which is properly the object
of its jurisdiction, is here adopted in its full extent by the common law, and
it is held to be a part of the law of the land
The doctrine of transformation
The doctrine of transformation, on the other hand, provides that before international
law becomes effective in the domestic sphere, it has to be transformed into municipal law by
the use of the appropriate constitutional machinery, whether through an act of Congress or
through an Act of Parliament.
Which doctrine does the Philippines adhere to?
The Philippines, in essence, adheres to both. It depends on the element of international
law entering the domestic sphere. As regards treaties, the doctrine of transformation applies.50
This is because the validity of a treaty entered into requires the concurrence of the Senate.51
With regard to customary law and treaties that have become customary law, the Philippines
adopts the incorporation theory. This is because the Constitution explicitly provides that the
Philippines adopts generally accepted principles of international law as part of the law of the
land, thereby evincing our adherence to the incorporation theory.
Facts: This is a dispute between the Brazilian Federal Government and the French holders of
various Brazilian Federal loans, with regard to the question whether the service of these loans
should be effected based on gold franc or paper franc.
What is the legal implication?

It means that our courts can apply international law to settle disputes, and such would
have the same binding effect as would the Civil Code or the RPC. By incorporating customary
law and treaties that have become customary law into the law of the land, international law
attains the same value and effect as our municipal laws.
Held: The Court ruled that even if this case involved municipal law rather than international
law, the court has jurisdiction over the case. The Court was required to take into account the
decisions of the municipal courts of a state and apply it.
To reiterate: In the Philippines, the doctrine of incorporation applies only to customary law and
treaties that have become customary law; whereas the doctrine of transformation applies to
treaties.52
Mejoff v. Director of Prisons (1951)
INTERNATIONAL LAW IN MUNICIPAL LAW

Dualism also applies in this regime. In order for international law to become part of
domestic law, it has to be made part of the municipal law. How is this done? There are two
ways of making international law a part of domestic law: incorporation and transformation.
47
48
Art. 46(1), VCLT

Art. 46(2), VCLT
49
Shaw, 2003. International Law, 5th ed.

No legal basis for this, just noted from one of our previous discussions. However, it may be argued that
precisely because treaties require an act of Congress before they become effective, this in itself constitutes
our adherence to the doctrine of transformation.
51
Art. VII, Sec. 21. 1987 Philippine Constitution
52
Bernas
50
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Facts:
In the 1949 case, the Court decided that the detention of Mejoff pending proper
deportation arrangements was valid, as he posed a threat to security. In this case (1951), the
Court took into account that Mejoff was already in detention for two years and ordered that he
be released. Mejoff is a Russian secret operative working for the Japanese forces; he illegally
entered the Philippines sometime in 1944 without proper admission and inspection. Because of
this, the Court ordered his deportation, and pending the arrival of the ship that will take him
home, he was to be detained in the Bilibid Prison. A ship arrived and requested for him but the
masters of prisons refused claiming that they had no authority to do so. Two years later and
still, no ship nor country is willing to take him.
covering 1943-1944. He is now being tried before the Military Commission for having failed
to discharge his duties and prevent the brutal atrocities committed against civilians and
prisoners of the Imperial Japanese Forces in violation of the laws and customs of war. He
comes before the court, questioning the legality of E.O. 68 (establishing a National War Crimes
Office prescribing rule and regulation governing the trial of accused war criminals) and the
participation of American attorneys Melville S. Hussey and Robert Port in the prosecution
proceedings.
Issues:
(1)
(2)
Issue: Should the Court issue a writ of habeas corpus and order the release of Mejoff
notwithstanding his status?
Held: YES, the writ should be issued. Mejoff is released, but subjected to reasonable
surveillance.
Held:
(1)
(2)
Is E.O. 68 valid?
Whether the participation of Hussey and Port is valid, even if they are not
qualified to practice law in the Philippines, and whether it deprives the Philippines of
sovereignty
YES, E.O. 68 is valid and constitutional.

YES, their participation in the proceedings is valid, and NO, such does not
diminish Philippine sovereignty.
Ratio:
The protection against deprivation of liberty without due process of law is not limited
only to Filipino citizens. It is a fundamental right guaranteed to every individual, regardless of
nationality.
Our courts should respect Mejoffs right to liberty. On what ground? First, by the
Constitutional provision on the Philippines adoption of generally accepted principles of law,
the Philippines adopts the generally accepted principle of due process. Second, the Philippines
is a member of the UN, and should therefore adhere to the Universal Declaration on Human
Rights.
The UDHR among other things, requires that: All human beings are born free and
equal in degree and rights" (Art. 1); that "Everyone is entitled to all the rights and freedom set
forth in this Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, nationality or social origin, property, birth, or other status"
(Art. 2); that "Every one has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the Constitution or by law"
(Art. 8); that "No one shall be subjected to arbitrary arrest, detention or exile" (Art. 9). Hence,
these principles should be respected in our domestic courts.
Ratio:
(1)
Notwithstanding that the Philippines is not a signatory to the Hague Convention

or the Geneva Conventions (not until 1947), these treaties, in addition international
jurisprudence still evince generally accepted principles of international law. Such
generally accepted principles, are by virtue of Article II, Sec. 3, part of our
Constitution. Therefore, the President, in issuing EO 68, was merely acting pursuant
to its role as Commander in Chief and clearly within his constitutional powers. It was
the Presidents duty to try and punish individuals who have attempted to wage war.
(2)
The Military Commission is a special tribunal governed by special law and not
the Rules of Court. Since the law creating it has been upheld as valid, so it follows
that the said Commission has jurisdiction. Having the American lawyers in the
proceedings does not in any way diminish the Philippines sovereignty, as the U.S. is
an aggrieved party. If anything, its the U.S. that is relinquishing its sovereignty in
allowing the Philippines to prosecute the case.
Agustin v. Edu
Facts:
Kuroda v. Jalandoni
Facts:
Shigenori Kuroda is a former Lieutenant-General of the Japanese Imperial Army and
Commanding General of the Japanese Imperial Forces in The Philippines during a period
President Marcos issued on December 2, 1974 a Letter of Instruction in accordance

to the 1968 Vienna Convention on Road Signs and Signals and the UN which was ratified by
the Philippine Government under PD 207. The Letter of Instruction 229, in the interest of
safety in public highways and expressways direct owners of motorized vehicles to acquire an
early warning device and present such upon registration of your vehicle. Pursuant to this LOI,
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Hon. Edu issued Memorandum Circular 32 requiring all vehicle owners to procure the EWDs,
complying with the prescribed size, shape, and measurements. Agustin argues that other forms
of WDs can be used, and that the EWDs were too expensive.
Issue: is the LOI unconstitutional? Is it a valid delegation of police power?
Held: YES, LOI is constitutional.
Ratio: This is a valid exercise of police power, the end goal being to reduce accidents. It is also
in keeping with the principle of pacta sunt servanda, as the Philippines has already ratified the
Vienna Convention on Road Signs and Signals. Other forms of warning may not be universally
understood, so to adopt a uniform means of warning, the Philippines complies with its
obligations under the VC on Road Signs.
What happens when there is a conflict of obligations?
It depends on whether the case is brought before a domestic court or an international tribunal.
Conflict between International Law and Domestic Law: International Rule
Before an international tribunal, it is a settled rule that a State may not invoke
provisions of its own laws as justification for its failure to comply with its obligations under
international law. Moreover, States are not only obliged to not make excuses, they are
moreover mandated to carry out their obligations in good faith.53 (Refer to the rule laid down in
page 15, referring to manifest violations of the Constitution as an exception to this rule)
Conflict between International Law and Domestic Law: Municipal Rule
Before a domestic court, usually, the court applies domestic law. It seems that our laws
cannot be in conflict with customary international law because our Constitution explicitly
adopts CIL as part of the law of the land.
However, when it comes to treaties, treaties entered into by the Philippines are
somteimes incompatible with the Constitution. What happens then? The treaty would be
invalid and unenforceable under domestic law. Note that just because a treaty is
unconstitutional does not mean that it is no longer valid as international law. It is only invalid
in the context of the domestic sphere.
53
Art. 13, Declaration of Rights and Duties adopted by the International Law Commission in 1949.
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CHAPTER 5 SUBJECTS OF INTERNATIONAL LAW: STATES

SUBJECTS OF INTERNATIONAL LAW, DEFINED.
Subjects of international law are entities endowed with rights and obligations in the
international order and possessing the capacity to take certain kinds of action on the
international plane.54
A subject of international law is an entity that has rights and responsibilities under that
law. It has an international personality that it can directly assert rights and be held
directly responsible under the law of nations.55
The stricter definition would be Lauterpachts: 'the orthodox positivist doctrine has
been ex- plicit in the affirmation that only states are subjects of international law' 56
o In practice however, other entities have already been considered subjects of
international law, namely:
Holy See (particularly from 1871 to 1929)
Insurgents and belligerents
International organisations
Chartered companies and various territorial entities such as the

League of Cities
STATES AS SUBJECTS OF INTERNATIONAL LAW

A state may be defined as a group of people living together in a defined territory under
an independent government organized for political ends and capable of entering into
international relations. (Cruz)
The state as a person of international law must possess the following qualifications:57
o Permanent population (OR PEOPLE)
A community of persons sufficient in number and capable of

maintaining a permanent existence of the community and held
together by a common bond of law.
o Defined territory
A fixed portion of the surface of the earth in which the people of

the state reside.
An entity may satisfy the territorial requirement for statehood

even if its boundaries are disputed, or some of its territory is
claimed by another state.58
A state may be recognised as a legal person even though it is
RECOGNITION OF STATES
Recognition means the act of acknowledging the capacity of an entity to exercise rights
belonging to statehood.
Can an entity claim to be a state before it is recognized by other states?
There are two views on this:
(1) The Declaratory Theory
54
59
55
60
Bernas
Cruz
56
Lauterpacht, International Law, p. 489.
57
Article 1, Montevideo Convention of 1993 on Rights and Duties of States
58
Restatement (Third) on the Foreign Relations Law of the United States
involved in a dispute with its neighbours as to the precise

demarcation of its frontiers, so long as there is a consistent band
of territory which is undeniably controlled by the government of
the alleged state.
Government
An agency through which the will of the state is formulated,

expressed and realized.
For purposes of international law, it is the national government

that has legal personality and it is the national government that is
internally responsible for the actions of other agencies and
instrumentalities of the state.
Sovereignty
Independence from outside control
The capacity to enter into relations with other states.59
Sovereignty, however, is dependent on recognition. Notably, the

Philippines was able to sign the United Nations Charter
notwithstanding that it was still not an independent state then.
Self determination
This is a broader concept than sovereignty.
All peoples have a right to self-determination. By virtue of that

right, they freely determine their political status and freely pursue
their economic, social and cultural development.60
Levels of claims to self-determination:

(1) Establishment of new states the claim by a group
within an established state to break away and form a
new entity.
(2) Claims to be free from external coercion, or the claim to
overthrow effective rulers and establish a new
government
Montevideo Convention of 1993 on Rights and Duties of States

International Covenant on Civil an Political Rights and the International Covenant on Economic, Social
and Cultural Rights, also reaffirmed in the Declaration Granting Independence to Colonial Countries and
Peoples (1960) and the Declaration on Principles of International Law concerning Friendly Reations and
Cooperation among States (1970)
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Recognition is merely declaratory for the existence of the state, meaning that its being a
state depends upon its possession of the required elements and not upon recognition.
(2) Constitutive Theory
Recognition constitutes a state, that is, it is what makes a stae a state and confers legal
personality on the entity. It merely emphasizes the point that the states are under no obligation
to enter into bilateral relations. In relation to the declaratory theory, a State may recognize
another State as a state even if it does not have all the elements of a state found in the
Montevideo Convention.,
preventing the recognizing state from passing upon their legality in its own courts.61
Does admission of a government to the United Nations mean recognition by all members?
No. The recognition is only to the extent of the activities of the organization.
When is recognition terminated?
Recognition of a regime is terminated when another regime is recognized. For as long as a state
continues to meet the qualifications of statehood, its status cannot be derecognized.
RECOGNITION OF GOVERNMENT
SUCCESSION OF STATES
Recognition of government is the act of acknowledging the capacity of an entity to

exercise powers of government of a state. The recognition of states is decided mainly on the
basis of political considerations.
Various views are adopted in relation to succession of States. Some suggest that the
new state succeeds to absolutely no rights or obligations of the predecessor state, but begins
with a clean slate. Others claim that the successor state assumes all the rights and obligations of
the predecessor state. Others hold that succession has varying effects on states rights and
obligations.62
The Tinoco Arbitration

Great Britain v. Costa Rica (1923)
Facts: In 1917, the Government of Costa Rica was overthrown by Frederico Tinoco. He
assumed power in June 1917. He eventually retired and left the country. In 1922 the restored
Costa Rican Government passed a law declaring all contacts entered into during the Tinoco
government invalid. The Tinoco Government had granted a concession to the Central Costa
Rica Petroleum Company and was indebted to the Royal Bank of Canada, both being British
corporations. Great Britain is claiming on behalf of these coporation, though it never really
recognized the Tinoco government.
Held: The Tinoco Government was an actual sovereign government and was in effective
control of Costa Rica, it was a valid government regardless of who recognized it and who did
not. The non-recognition of other nations of a government claiming to be a national personality
is usually appropriate evidence that it has not attained the independence entitling it under
international law. But when recognition by such nations is determined by inquiry, their nonrecognition loses something of evidential weight on the issue, which those applying the rules
are concerned.
Consequences of Recognition of States and Governments:
(1) Full diplomatic relations are established except where the government recognized
is de facto.
(2) The recognized government acquires the right to sue in the courts of the
recognizing state.
(3) The recognizing government has a right to the possession of the properties of its
predecessor in the territory of the recognizing state.
(4) All acts of the recognized state or government are validated retroactively,
Rules on Succession of States

1. Succession to territory
The succeeding state assumes all the capacities, rights and obligations of the
predecessor state with respect to that territory
2. Succession to state property
Where a part of State As territory becomes territory of State B, the property of

A located in that territory passes to B.
When State A is absorbed by State B, As property passes to B, wherever the

property is located.
Where part of State A becomes a separate state, property of the State A located
in the territory of the separate state become the separated states.
3. Succession to public debts
Where part of the territory of State A becomes territory of State B, local public
debt and the rights and obligations of State A under contracts relating to that
territory are transferred to State B.
Where state A is absorbed by State B, the public debt, rights and obligations of
State A pass to State B.
Where part of State A becomes a separate state, local public debt, rights and
obligations of the predecessor state under contracts relating to the territory of the
new state pass to the new state.
4. Succession to contracts
When part of State A becomes territory of State B, State As international

agreements with respect to that territory ceases and the force of the treaty
61
62
Cruz
Bernas
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transfers to State B. this is called the moving treaty rule or moving

boundaries rule. (Basically, the treaty follows the territory.)
When a State is absorbed by another State, the international agreements that
govern the absorbed state will now be those applicable to the absorbing state.
When there is a new state, it does not succeed to the treaties of the predecessor
state unless it accepts agreements or agree to it or acquiesced to it. This is called
the clean slate theory. (Because the new state accedes to no treaties unless
those ratified by it)
Uti possidentis rule: pre-existing boundary and territorial arrangements continue
to be binding notwithstanding.
FUNDAMENTAL RIGHTS OF STATES

Independence
The capacity if a state to provide for its own well-being and development free
from the domination of other states. As a right, it means the right to exercise within
its portion of the globe the functions of a state.
Equality
Simply requires equality of legal rights irrespective of the size or power of the
State.
Example: UN General assembly: 1 state = 1 vote.

Peaceful co-existence
Mutual respect for each others territory and sovereignty, mutual nonaggression, non-interference in state affairs.63
act as one entity.

(b) Federal union combination of two or more sovereign states which upon
merger cease to be states, resulting in the creation of a new state with full
international personality to represent them in their external relations.
(c) Confederation organization of states which retain their internal
sovereignty and to some extent, their external sovereignty while delegating
the collective body power to represent them as a whole for certain limited
and specified purposes.
(d) Personal union comes into being when two or more independent states
are brought together under the rule of the same monarch.
B. Dependent States
Dependent states fall into two general categories, the protectorate and the suzerainty.
One view is that the protectorate always retains a greater measure of control over its external
affairs than the suzerainty.
C. Neutralized States
An independent state whether simple or composite may be neutralized through an agreement
with other states by virtue of which the latter will guarantee the integrity and independence
provided it refrains from taking any act that will involve it in war or other hostile activities
except for defensive purposes. Example: Switzerland was neutralized in 1815 and has managed
to maintain its status despite the many wars that has engulfed Europe since the Congress of
Vienna.
SOME INCOMPLETE SUBJECTS
CLASSIFICATION OF STATES
A.
Independent States
A state who is not subject from dictation from others with respect to the freedom to enter into
external affairs is known as an independent state. It may either be:
(1) Simple states
A simple state is that which is placed under a single and centralized
government exercising power over both its internal and external affairs.
(2) Composite states
A composite state consists of two or more states, each with its own separate
government but bound under a central authority exercising to a greater or lesser
degree control over their external relations.
Examples:
(a) Real union created when two or more states are merged under a unified
authority so that they form a single international person through which they
63
Discussed in the Five Principles of Co-existence by India and China and the 1970 Declaration on
Principles of International Law Friendly Relations and Cooperation Among States
1. Protectorates
These are dependent states which have control over their internal affairs but whose
external affairs are controlled by another state.
2. Federal State
A union of previously autonomous entities. There can be various arrangements. On the
one hand, placing full authority in the central organ and on the other, placing authority
on the individual entities.
3. Mandated and Trust Territories
Those placed by the League of Nations under one or other victorious allies of the
World War I. Examples: Carolinas, Marianas, Marshall Islands
4. Taiwan
Taiwan seems to be a non-state territory, which is de jure part of China.
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5. The Sovereign Order of Malta

Italian Court of Cassation in 1935 recognized the international personality of Malta.
Now, it has diplomatic relations with over 40 states.
6. The Holy See and Vatican City
The Lateran Treaty signed by Italy, which recognized the Vatican City and the
recognized and the Holy Sees sovereignty in the field of international relations.
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1. Objective Personality
The entity is subject to a wide range of international rights and duties and will
be entitled to be accepted as an international legal person by any other
international person with which it has relations. Simply put, will operate erga
omnes.68 Having an objective personality is harder to achieve because it may
require the recognition of the entire international community or at least a
substantial part of it.
But how many States do you really need to vest an entity with objective
international personality? 50.69
CHAPTER 6 OTHER SUBJECTS OF INTERNATIONAL LAW

Generally, States are the subjects of international law, having rights and obligations directly
under international law. As international law evolved, however, the following have become
recognized as subjects of international law:
1. International Organizations
2. Insurgents
3. National Liberation Movements
4. Individuals
2. Qualified Personality
Qualified personality is easier to achieve than objective personality, because as

opposed to the erga omnes nature of objective personality, qualified personality
is in personam.
What this means is that an entity has international legal personality ONLY with
regard to that entity that recognizes such personality.
Note that the list is NOT exclusive. There are other recognized subjects of international law
namely recognized to have international legal personality, namely64 :
International Committee of the Red Cross

Holy See
International Public Companies
Transnational Corporations
Reparations for Injuries Suffered in the Service of the United Nations

ICJ Advisory Opinion, 1949
(Midterms 2010 Question)
1. INTERNATIONAL ORGANIZATIONS
In principle, it is established that international organizations possess objective
international legal personality. But how is such legal personality determined? It is determined
by several factors including:
(a) capacity to enter into relations with states and other organizations;
(b) conclude treaties with them and
(c) the status it has been given under international law.65
(d) Immunities66 - note that the basis for the immunities of international organizations is NOT
sovereignty, but the need for the effective exercise of their functions.67
Facts: In 1948, Count Bernadotte, a Swedish national was murdered in Jerusalem (which at that
time was under the control of Israel), while carrying out his duties as a UN Mediator in
Palestine. The General Assembly then requested for the Courts advisory opinion on the matter
in determining two questions:
(1)
Does the UN have a capacity to bring an international claim against the

responsible government with a view to obtaining reparation due to respect of the
damage caused (a) to the United Nations and (b) to the victim or persons entitled
through him?
(2)
If 1(b) is in the affirmative, how is the action of the UN reconciled with the
rights possessed by the State of which the victim is a national?
(Note that the discussion on the elements of legal capacity of States as discussed in Brownlie is
similar to those of international organizations, Shaw only provides for the first three elements,
Brownlie provides for the fourth.)
ACQUISITION, NATURE AND CONSEQUENCES OF LEGAL PERSONALITY

Subjects are not necessarily identical in the nature or extent of their rights. There are
however, two basic categories of legal personality: objective and qualified personality.
64
Shaw, International law. 5th ed. 241 (2003)

Shaw, International Law. 5th ed. 241 (2003)
66
Brownlie
65
67
Bernas, Public International Law. 89 (2009)
Held:
68
erga omnes are obligations owed by States to the international community as a whole intended to protect
and promote the basic values and common interests of all. This has been recognized by the ICJ in the
Barcelona Tractions Case and further cited in the East Timor Case and the Israeli Wall Advisory Opinion.
(erga omnes will be discussed in detail in State Responsibility)
69
The Court held in the Reparations Case that 50 states have the power, in conformity with international
law, to bring into being an entity possessing objective legal personality.
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(1)
The ICJ ruled unanimously regarding 1(a), answering it in the affirmative. The
UN has capacity to bring an international claim. 1(b) was also upheld in the
affirmative. (In 1950, Israel paid for the UN claim of $54,628 arising from the
murder of Count Bernadotte.)
Courts Opinion:
The UN has international legal personality. In answering the question of whether or not
a certain entity has international legal personality, the characteristics of that entity (as conferred
to it by its Charter) must be considered. What rights was it intended to possess? What functions
was it obliged to carry out? The Charter not only intended the UN to be a center for
harmonizing actions of nations [art. 1 (4)], but has equipped it with organs and designated
them with special tasks.
It does not mean that the UN is a State, what it simply means is that it is a subject of
international law capable of possessing international rights and duties and that it has capacity to
maintain rights by bringing international claims. The UN is a supreme time of international
organization intended to exercise and enjoy functions and rights, which can only be explained
on the basis of the possession of a large measure of international personality and capacity to
operate upon the international plane. As such, it cannot carry out its functions if it was devoid
of international personality.
Under international law, the UN must be deemed to have those powers which though
not expressly provided for in its Charter, is a necessary implication as being essential to the
performance of its duties.
THE UNITED NATIONS

What is the United Nations?
It is a body which possesses juridical and international personality and is vested with
prerogatives normally granted only to sovereign states. While not a stare or a superstate, the
UN has such powers as to enable it to send and receive diplomatic agents, conclude treaties and
govern territories.
Brief history of the UN:

o In the Moscow Declaration of General Security on November 1, 1943, the
UK, US, Soviet Union and China recognized the necessity of establishing a
general international organizations based on principles of sovereign
equality of States for the maintenance of international peace and security.70
o The initial blueprint of the organization was the Dumbarton Oaks Proposals
which contained the tentative proposals for a General International
Organization. The U.N Charter was signed on June 26, 1945 and upon
71
70
Coquia, citing Oppenheim-Lauterpacht.
72
ratification by the five permanent members of the Security Council, came

into force on October 25, 1945.
Membership
o 2 kinds of members in the UN:
(1) original or charter members
Those states which having participated in the UN Conference on

International Organization or having previously signed the
Declaration by the United Nations, signed and ratified the Charter.
Note: The Philippines, Lebanon and Syria were included as original
members although they were not yet states at the time.
(2) elective members
o Other members may be admitted to the UN through the
discretion of the General Assembly upon a favorable
recommendation by the Security Council.
o Qualifications to be eligible for elective membership:
(1) It must be a state
(2) It must be peace-loving
(3) It must accept, be willing, and be able to carry out the
obligations of the Charter.
What is the U.N. Charter?
o It consists of 111 articles besides the Preamble and concluding provisions.
It also includes the Statute of the International Court of Justice, which is an
integral part of it.
o May be considered a treaty because it derives it binding force from the
agreement of the parties to it.
o It is intended to apply not only to the members of the Organization but also
to non-Member states so far as may be necessary for the maintenance of
peace and security.
Purpose of the UN (Art. 1 of the UN Charter)71:
o To maintain peace and security by taking collective measures to suppress
acts of aggression, and by bringing about peaceful settlement of disputes.
o To develop friendly relations based on respect for the principle of equal
rights and self-determination of peoples
o To achieve cooperation in solving international problems of an economic,
social, cultural and humanitarian character, and in promoting respect for
human rights and fundamental freedoms.
o To be a center for harmonizing the actions of nations in the attainment of
these common ends.
Seven Cardinal Principle (Art. 2, UN Charter)72 :
Annotation from International Law by Jorge Coquiat & Miriam Defensor-Santiago.

Annotation by Isagani Cruz
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o
o
o
o
o
o
Sovereign equality
Based on one of the fundamental rights of states (i.e. the right to equality)
Good faith
The UN Charter partakes in the nature of a treaty, and must be complied
with in good faith in accordance with the principle of pacta sunt servanda.
Peaceful settlement of disputes
The most common amicable methods of settlement of disputes include the
active participation of the ICJ and Security Council. Efforts to settle
disputes must not endanger international peace, security and justice.
Prohibition on threat and the use of force
This principle prohibits threat or force upon the territorial integrity or
political independence of states with certain exceptions. This categorical
outlawry of war is the most important principle.
Mutual assistance
The efficacy of the UN will depend upon the cooperation extended to it by
the member-states.
Inclusion of non-members into the UN Charter coverage
(discussed elsewhere in this reviewer)
Domestic jurisdiction clause
The rule is, as long as the matter remains internal, it cannot be the subject
of intervention by the United Nations.
The exceptions are:
(1) where the international conflict aggravates into a threat or to an actual
breach of international peace and security
(2) where parties voluntarily invoke and submit to the jurisdiction of the
UN for the settlement of the dispute.
members, questions relating to the trusteeship system, and budgetary

matters require two-thirds of those present and voting.75
(2) The Security Council
The key organ of the UN in the maintenance of international peace and

security.
It consists of 5 permanent members (China, France, UK, Union of Soviet

Socialists Republics, and the US or the Big Five), and 10 elective
members76 .
The Security Council may take steps for the pacific settlement of disputes
or when necessary even preventive or enforcement action. The only
limitation is that the dispute must be international, that is, it must not be an
internal dissention77, unless parties themselves submit the matter to the UN.
The Council approves trusteeship agreements in strategic areas.
Voting method:
o Substantive questions
Each member shall have one vote, but distinction is to be made
between the Big Five and the other members in the resolution of
substantive questions.
o Procedural matters
affirmative vote of any of any nine or more members
(3) The Economic and Social Council
Composed of 54 members, which are elected by the General Assembly for

3-year terms and may be re-elected immediately.
The Council meets in regular session in accordance with its rules and in
special session at the request of a majority of its members.
Voting method: Each member has one vote and decisions are reached by
the majority of those present and voting.
The Council, under the authority of the General Assembly is vested with
responsibility for the promotion of international and social cooperation.
(4) The Trusteeship Council
The organ charged with the duty of assisting the Security Council and the
general assembly in the administration of the international trusteeship
system.
Composition:
o The members of the UN administering trust territories
o The permanent members of the Security Council not
administering trust territories
What are the six principal organs of the United Nations?

(1) General Assembly
The most representative of the organs of the UN which consists of all the
members of the Organization, each of which is entitled to send not more
than 5 representatives73.
It meets in regular annual session beginning on 3rd Tuesday of September

or in a special session upon the call of a majority of its members or at the
request of the Security Council.
Voting method: Each member has one vote74 . Decisions on matters such as
recommendations concerning international peace and security, election of
members of the Councils, admission, suspension and expulsion of
75
73
UN Charter, Art. 9(1).

74
Art. 18(1), UN Charter.
Art. 18(2), UN Charter

The elective members are elected for two-year terms by the General Assembly.
77
i.e. civil war
76
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o
As many other members elected for 3-year terms by the General

Assembly as may be necessary.
(5) The International Court of Justice
The judicial organ of the UN which functions in accordance with the Statute.
The Court is composed of 15 members78 who are elected by absolute majority

vote in the General Assembly and the Security Council.
o The judges must be of high moral character and possesses the
qualifications required in their respective countries for appointment to
the highest judicial offices.
o No two of the judges may be nationals of the same state79 .
o The members has a term of 9 years80 and may be re-elected. No judge
can be removed unless, in the unanimous opinion of the other
members, he has ceased to fulfill the required conditions.81
The functions of the Court are to decide contentious cases and to render
advisory opinions. Its jurisdiction is based on the consent of the parties as
manifested under the optional jurisdiction clause under Art. 36 of the Statute.
They may also give advisory opinions upon the request of the General assembly
or the Security Council.
(6) The Secretariat
The chief administrative organ of the UN, which is headed by the

Secretary-General.
o The Sec-Gen is chosen by the General assembly upon
recommendation of the Security Council. Term: 5 years, with reelection.
o The Sec-Gen is the highest representative of the UN and is
authorized to act on its behalf. He is entitled to full diplomatic
immunities and priveleges.
o He also acts as a secretary in all meetings of the other organs and
performs such other functions as may be assigned to him by these
organs. He also prepares the budget of the UN, to be submitted to
the General Assembly.
of specific territory.82 In NIAC, AP II applies. And in order for insurgents to be considered as

being part of a non-international conflict, the material field of application must be met:
First, the armed dissidents have armed command
Second, there has to be control over a part of its territory as to enable them to carry out
sustained and concerted military operations.
What happens when these requisites are met? First, the insurgents will be recognized of
belligerent status and second, they are seen as having treaty-making capacity.
3. NATIONAL LIBERATION MOVEMENTS

NLMs are organized groups fighting against colonial domination and alien occupation
and against racist regimes in the exercise of their right of self-determination.
The elements of NLMs are: (1) they are based on territories which they are seeking to liberate
and (2) a goal of self-determination.
4. INDIVIDUALS
Individuals have now come to be recognized as possessing rights and obligations under
international law albeit these rights are limited. These international obligations of individuals
may include the obligation to comply with regulations of armed conflict, as well as to not
commit international crimes such as aggression, genocide, terrorism, and other crimes against
humanity. (If they do commit these crimes, they are subjected to the jurisdiction of the ICC or
the International Criminal Court, not the ICJ!)
2. INSURGENTS
Insurgents become subjects of international particularly in instances wherein a noninternational armed conflict exists (NIAC will be discussed in later chapters). Insurgents may
enter into valid arrangements in certain instances but this would depend on the administration
78
Art. 3(1), Statute of the ICJ

Ibid.
80
Art. 13, Statute of the ICJ
81
Art. 18(1), Statute of the ICJ
79
82
Oppenheims International Law, p. 165
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CHAPTER 7 TERRITORY
What is the definition of territory?
It is the fixed portion of the surface of the earth inhabited by the people of the state.83 It must be
permanent and indicated with precision because jurisdiction is determined on the basis of such.
It must also be big enough to provide for the needs of the population, but must not be so
extensive as to be difficult to administer or defend from external aggression.
What are the components of territory?
(1) The terrestrial domain
Refers to land mass which may be integrated or dismembered or partly

bounded by water, or consist of one whole island.
(2) The maritime and fluvial domain
Consists of bodies of water within the land mass and the waters adjacent to
the coasts of the state up to a specified limit.
Includes internal waters in the land-locked lakes, rivers, man-made canals

within the land mass, and certain bays, gulfs, and straits, as well as external
waters in the territorial sea.
What is the territorial sea?

The territorial sea may be described as the belt of waters adjacent to the
coasts of the state, excluding the internal waters in bays and gulfs.
The Philippine territorial sea is now limited to 12 miles from the

low-water mark of our coasts84. Previously, the claim of the
Philippines to its territorial sea was based on historic right or title
which embraces all non-internal waters comprised within the
limits set forth in the Treaty of Paris, and all applicable laws.
The territorial sea may be defined regardless of its breadth,

according either to the normal baseline method or the straight
baseline method.
o Normal baseline method the territorial sea is drawn
from the low-watermark of the coast to the breadth
claimed following its sinuosity and curvatures but
excluding internal waters in bays and gulfs.
o Straight baseline method straight lines are made to
connect appropriate points on the coast without
departing radically from its general direction.
83
84
Cruz
The new convention on the law of the swas
What is the Archipelago Doctrine?85

The Philippine position on the definition of its internal waters is commonly
known as the archipelago doctrine, which is articulated in Art. I, Sec. 1 of
the 1987 Constitution86. This doctrine puts forth the view that all the 7,100
islands should be considered one integrated whole instead of being
fragmented into separate units, each with its own territorial sea. Hence, in
defining the internal waters of the archipelago, straight baselines should be
drawn to connect appropriate points of the outermost islands without
departing radically from the general direction of the coast. The waters
inside the baseline shall be considered internal and thus, not subject to
entry by foreign vessels without the consent of the local state.
(3) The aerial domain
The airspace above the terrestrial domain and the maritime and fluvial
domain of the state to an unlimited altitude but not including outer space.
Every state has complete and exclusive sovereignty over the airspace above
its territory.87
How is territory acquired or lost?
Acquired by: discovery and occupation, prescription, cession, subjugation,

accretion.
Lost by: abandonment or dereliction, cession, subjugation, prescription,

erosion, revolution, natural causes.
85
This doctrine has been embodied in the 1982 Convention of the Law of the Sea with the
modificatioin that archipelagic sealanes shall be designated over the internal waters of the
archipelago through which foreign vessels shall have the right of passage.
86
Art. I, Sec. 1 states: The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the archipelago, regardless of their
breadth and dimensions, form part of the internal waters of the Philippines.. Basis of this
article: RA no. 3046 as amended by R.A no. 5446.
87
Paris Convention on Aerial Navigation (1919), Chicago Convention on International Civil

Aviation (1944).
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Discovery and Occupation
It is an original mode of acquisition by which a territory not belonging to any state or

terra nullius is placed under the sovereignty of the discovering state (except, the open
seas or outer space which is res communes and not susceptible to discover and
occupation).
Requisites:
(1) Possession must be claimed on behalf of the state represented by the
discoverer and may be effected through a formal proclamation and the
symbolic act of raising the national flag in the territory.
(2) Administration of the territory
The Island of Palmas Case88

Title was disputed between the US and the Netherlands to an island
situatied between the boundaries of the Philippine archipelago as
ceded to the former Spain under the Treaty of Paris. The US
primarily based its claim on the right of discovery of the island by
Spain, and the Netherlands asserted that it had possessed and
exercised sovereignty. The arbitrator held that discovery alone
without any subsequent act cannot suffice to prove sovereignty.
Subjugation
Territory is deemed acquired by subjugation when having been previously conquered

or occupied in the course of war by the enemy, it is formally annexed to it at the end
of the war.
Conquest alone confers only inchoate rights, because the annexation is the act that
completes the acquisition.
Illustration: during the Japanese occupation in the Philippines, sovereignty in our

country did not pass from US due to its inability to exercise it.
Accretion
Accomplished through both natural and gradual processes, as by the gradual and
imperceptible deposit of soil on the coasts of the country through the action of water
or by reclamation projects.
Dereliction
This occurs when the state exercising sovereignity over it physically withdraws from
it with the intention of abandoning it altogether.
Prescription
Prescription requires long, continued and adverse possession to vest acquisitive title
in the claimant. However, no rule on the period of possession necessary to transfer
title have yet been established.
Cession
It is a method by which territory is transferred from one state to another by

agreement between them, and is effected through transactions such as sale, donation,
barter or exchange, and testamentary disposition.
Example: purchase by the US of Alaska from Russia in 1867; gift by Austria of

Lombardy to France in 1859; the exchange between Great Britain and Germany of
the island of Helgoland in 1890.
Transfer of title is effected upon the meeting of the minds of the parties, since cession
is essentially consensual.
88
2 U.N. Rep. of Int. Arb. Awards, 231
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P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER

Bernas + Brownlie + Cruz + Shaw + Lecture Notes

CHAPTER I THE NATURE OF INTERNATIONAL LAW

JUS GENTIUM AND JUS INTER GENTES AS ELEMENTS OF PUBLIC

HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW

THEORIES ON INTERNATIONAL LAW

Command Theory (John Austin) law consists of command emanating from a

Restatement of Foreign Relations Law of the United States

Kach H irang-O lave

P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER

Bernas + Brownlie + Cruz + Shaw + Lecture Notes

League of Nations (1920)

P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER

Bernas + Brownlie + Cruz + Shaw + Lecture Notes

State practice has three elements:

CHAPTER 2 THE SOURCES OF INTERNATIONAL LAW

Lecture, November 25. 2010

Lecture, November 25, 2010

P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER

Bernas + Brownlie + Cruz + Shaw + Lecture Notes

III. GENERALLY ACCEPTED PRINCIPLES OF LAW

Is there such a thing as instant custom?

IV. JUDICIAL DECISIONS AND WORKS OF THE MOST HIGHLY QUALIFIED

TREATY VS. CUSTOM

THERE IS NO STARE DECISIS IN INTERNATIONAL LAW.

Lecture, November 25, 2010

Article 59, ICJ Statute

P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER

Bernas + Brownlie + Cruz + Shaw + Lecture Notes

EQUITY AS A SOURCE OF INTERNATIONAL LAW

OTHER SUPPLEMENTARY EVIDENCE (OTHER SOURCES OF

Lecture, December 2, 2010

1992 Rio Declaration

P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER

Bernas + Brownlie + Cruz + Shaw + Lecture Notes

CHAPTER 3 THE LAW OF TREATIES

It is a written agreement between States, governed by international law, and

Is there such a thing as an oral treaty?

2. Treaties that create collaborative mechanisms

THE MAKING OF TREATIES

Harvard Research on International Law cited by Isagani Cruz

P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER

Bernas + Brownlie + Cruz + Shaw + Lecture Notes

Ratification is followed by either an exchange of ratification or deposit of

Negotiations are usually done through foreign ministries.

Who are empowered to enter into treaties as representatives of their States?

This is evidenced by the signing of the document.

Articles 9 and 10, VCLT

Article 14, VCLT

P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER

Bernas + Brownlie + Cruz + Shaw + Lecture Notes

acceptance by another contracting State of the reserving States reservation

Withdrawal of an objection may be made at any time.

Reservations must be in writing, and formally confirmed by the reserving State

The acceptance of the reservation DOES NOT itself require confirmation

Withdrawal of a reservation or objection must be in writing

Step 5: Entry into Force

P UBLIC I N TERN ATION AL L AW M ID TERM S R EVIEW ER

Bernas + Brownlie + Cruz + Shaw + Lecture Notes

BINDING EFFECT OF TREATIES

The treaty may be merely a formal expression of customary international law

Art. 46, VCLT

AMENDMENT AND MODIFICATION OF TREATIES