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PUBLIC INTERNATIONAL LAW

I: INTERNATIONAL LAW AND ITS SOURCES


8. Are individuals subjects or objects of international law?
1. What is Public International Law? YE, generally, individuals are regarded as objects of international law.
However, with the progression of human rights, individuals in some
2. What is Private International Law? instances are regarded as subjects of international law.
Private International Law or conflicts of law addresses the question of: first,
in which legal jurisdiction may a case be heard; and second, the law 9. What are the Sources of International Law?
concerning which jurisdiction applies to the issues in a case. According to Article 38 of the ICJ Statute, the formal sources of
international law include international conventions, international custom
3. What is jus gentium? and general principles of law. On the other hand, judicial decisions and the
Jus gentium was originally part of Roman Law that the Romans applied to teachings of the most highly qualified publicists are a subsidiary means of
its dealings with foreigners, especially provincial subjects. Presently, it is determining international law.
used to refer to the natural or common law among nations considered as
States within a larger human society, especially governing the rules of 10. Is there a hierarchy among the sources of International Law
peace and war, national bounderies, diplomatic exchanges, and extradition. enumerated in Article 38?
Together with jus inter gentes, jus gentium makes up Public International No. The provisions are not stated in a hierarchy, but the draftsmen intended
Law. to give an order and in one draft the word ‘successively’ was used.

4. What is jus inter gentes? 11. What is the difference between formal and material sources of
Jus inter gentes consists of agreements between nations and includes the International Law?
body of treaties, UN conventions, international agreements, and Formal sources are those legal procedures and methods for the creation of
internationally recognized human rights. rules of general application which are legally binding on the addressees.
Material sources, on the other hand, provide evidence for the existence of
5. What is jus in bello? rules, which, when proved, have the status of legally binding rules of
Jus in bello is part of the “law of war” concerning the limits to acceptable general application.
wartime conduct.
12. What is a treaty?
6. What is jus ad bellum? Article 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties
Jus ad bellum or the right to wage war is part of the “law of war” defining a provides that a treaty is an international agreement conducted between
set of criteria that must be consulted before engaging in war in order to states in written form and governed by international law, whether embodied
determine whether entering into war is justifiable. in a single instrument or in two or more related instruments and whatever
particular designation they may be given.
7. Who are the subjects and objects of international law?
YE, according to the Reparations Case, a subject of international law is an 13. What is jus cogens?
entity capable of possessing international rights and duties and having the According to Article 53 of the Vienna Convention on the Law of Treaties, a
capacity to maintain its rights by bringing international claims. Objects of peremptory norm of international law is a norm accepted and recognized by
international law, on the other hand, are those who indirectly have rights the international community of states as a whole as a norm from which no
under, or are beneficiaries of, international law through subjects of derogation is permitted and which can be modified only by a subsequent
international law. norm of general international law having the same character.

MARCK JOSEPH ILUSTRE MACARAEG


ATENEO LAW SCHOOL 2012
PUBLIC INTERNATIONAL LAW

Provided the consistency and consistency and generality of a practice are


14. What are law-making treaties? proved, no particular duration is required, although the passage of time will
Law-making treaties create legal obligations the observance of which does be a part of the evidence of generality and consistency. However, a long
not dissolve the treaty obligation. According to McNair, such treaties are in practice is not necessary and as a matter of fact, the court recognized in the
principle binding only on parties, but the number of parties, the explicit North Sea Continental Shelf Cases that an instant custom, involving a fairly
acceptance of rules of law, and in some cases, the declaratory nature of the quick maturing of practice, may emerge.
provisions produce a strong law-creating effect at least as great as the
general practice considered sufficient to support a customary rule. 20. What about the uniformity and consistency of practice?
Complete or total uniformity is not required, but substantial uniformity is.
15. What is custom? According to the Asylum Case, the party relying on custom must prove that
Custom is a source of international law under Article 38 of the ICJ Statute. the custom is established in such a manner that it has become binding on
According to the North Sea Continental Shelf Cases, it consists of unwritten other States.
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 21. Is it required that all States are involved in the practice of custom for
juris. such to be binding?
No. Universality of practice is not required. As a matter of fact, according
16. What is the difference between custom and usage? to the Asylum Case, there are instances when a regional custom, or a
According to most highly qualified publicist Ian Brownlie, usage is a practice present and binding only to a particular region, may arise.
general practice of States which does not reflect a legal obligation. Custom
on the other hand is a general practice of States borne out of a sense of legal 22. What is opinio juris?
obligation. According to most highly qualified publicist Brierly, it is the recognition by
States that a certain practice is obligatory and that it requires a conception
17. What are the evidence or material sources of custom? that the practice is required by or consistent with prevailing international
The material sources of custom are very numerous and include: diplomatic law. It means that a State abides by a practice because of a sense of legal
correspondence, policy statements, press releases, the opinions of official obligation, as opposed to motives of courtesy, fairness, or morality.
legal advisers, official manuals on legal questions, comments by
governments on drafts produced by the International Law Commission, 23. Are all States bound by custom?
state legislation, international and national judicial decisions, recitals in Customary rules are generally binding on all states, regardless of whether
treaties and other international instruments, a pattern of treaties in the same the state has explicitly consented to be bound by the rule involved or
form, the practice of international organs, and resolutions relating to legal whether the rule may also be found in treaty form. However, in cases of a
questions in the UN General Assembly. regional custom, only a particular region or group of States shall be bound
by the practice.
18. What are the elements of custom?
According to the North Sea Continental Shelf Cases, the elements of 24. What is the concept of a persistent objector?
custom are (a) duration; (b) uniformity and consistency of the practice; (c) A State may not be bound by custom if since the process of formation and
generality of the practice; (d) a sense of legal obligation or opinion juris et development of the custom, such State has expressed his objection to the
necessitates. practice. The evidence of objection must be clear and there is probably a
presumption of acceptance which is to be rebutted.
19. How long should a practice last before it is considered as customary?

MARCK JOSEPH ILUSTRE MACARAEG


ATENEO LAW SCHOOL 2012
PUBLIC INTERNATIONAL LAW

25. What is the value of the Resolutions adopted by the UN General 31. What is the International Law Commission?
Assembly? Established in 1948, the International Law Commission is a subsidiary
In general, resolutions are not binding on member states, but when they are organ of the General Assembly. Its mandate is the progressive development
concerned with general norms of international law, then acceptance by a and codification of International Law in accordance with the UN Charter.
majority vote constitutes evidence of the opinions of governments in the
widest forum for the expression of such opinions, thus evincing State 32. What is codification?
practice. In some cases, a resolution may have direct legal effect as an Codification involves the setting down, in a comprehensive and ordered
authoritative inbterpretation and application of the principles of the UN form, of rules of existing law and the approval of the resulting text by a
Charter. law-determining agency.

26. What is a general principle of law? II. THE RELATION OF MUNICIPAL AND INTERNATIONAL LAW
YE, general principles are principles of municipal law common to the legal
systems of the world. YE, International tribunals must have recourse to 33. What is the difference between monism and dualism (or pluralism)
rules typically found in domestic courts and domestic legal systems in order According to Most Highly Qualified Publicist Hersch Lauterpacht, Monism
to address procedural and other issues. takes the form of assertion of the supremacy of international law even
within the municipal sphere coupled with well-developed views of the
27. How can judicial decisions be a source of law? individual as a subject of international law. Dualism on the other hand
Judicial decisions are not, strictly speaking, a formal source, but are points to the essential difference of international and municipal law,
regarded as authoritative evidence of the state of law. consisting primarily in the fact that the two systems regulate different
subject matter.
28. Is the International Court of Justice bound by its past decisions?
No. Article 59 of the ICJ Statute provides that the decision of the Court has 34. What is the theory of co-ordination?
no binding force except as between the parties and in respect of a particular As propounded by Rosseau, the theory of coordination posits that municipal
case. Thus, the Court does not adhere to the principle of stare decisis and and international law have a common field of operation. There is no
the system of binding precedents. However, it must be noted that the Court automatic abrogation of internal rules in conflict with obligations in the
nevertheless strives to maintain judicial consistency. international plane.

29. Can the Court apply decisions of national courts? 35. Can a State invoke its domestic law against international law?
Yes. Article 38(1)(d) of the ICJ Statute is not confined to international No. According to Article 27 of the Vienna Convention on the Law of
decisions and decisions of national tribunals have evidential value. Some Treaties, it is well-settled that a State cannot plead provisions of its own law
decisions may provide indirect evidence of the practice of the state of the of deficiencies in that law in answer to a claim against it for an alleged
forum on the question involved; while others may result in the careful breach of its obligations under international law.
exposition of the law.
36. Can an individual acquire direct rights and/or obligations under
30. How can the teachings of the most highly qualified publicists be a International Law?
source of International Law? Yes. In certain instances, International Law imposes duties of certain kinds
As a subsidiary means of determining international law, teachings of most on individuals as such, and thus national and international tribunals may try
highly qualified publicists only constitute evidence of the law, although in persons charged with crimes against international law, including war crimes
some subjects, individual writers have had a formative influence. and genocide. Conversely, an individual, natural or juridical, may plead
that a treaty has legal consequences affecting such individual’s interests.

MARCK JOSEPH ILUSTRE MACARAEG


ATENEO LAW SCHOOL 2012
PUBLIC INTERNATIONAL LAW

territories immediately prior to independence, international organizations,


37. What is the doctrine of incorporation? agencies of States
According to most highly qualified publicist Ian Brownlie, the doctrine of
incorporation presupposes that customary rules are to be considered part of 42. What are the entities given special types of personality under
the law of the land and enforced as such, with the qualification that they are International Law?
incorporated only so far as is consistent with legislative acts or prior judicial Entities possessing special types of personality include: non-self-governing
decisions. peoples, national liberation movements, states in statu nascendi, legal
constructions, belligerent and insurgent communities, entities sui generis,
38. What is the doctrine of transformation? individuals.
It means that in order for international law to become part of the law of the
land, it must be expressly and specifically transformed into domestic law IV. INCIDENCE OF CONTINUITY AND STATEHOOD
through the appropriate constitutional machinery such as an act of
Congress. 43. What is a State?
A State is a type of legal person recognized by international law.
39. Can res judicata, by virtue of judgment in a municipal court, be According to Article 1 of the Montevideo Convention, the State as a person
invoked before an international tribunal? of international law should possess the following qualifications: first, a
No. According to the Permanent Court of International Justice in Certain permanent population; second, a defined territory; third, government; and
German Interests in Polish Upper Silesia, it must be noted that although the fourth, sovereignty or the capacity to enter into relations with the other
subject matter may be substantially the same, the parties will not be, and the States.
issues will have a very different aspect. In the municipal court, the legal
person claiming is an individual or corporation; before an international 44. What constitutes a population?
tribunal, the claimant will be a State exercising diplomatic protection with Article 1 of the Montevideo conventions refers to ‘a permanent population’
respect to its national. and connotes a stable community.

III. SUBJECTS OF INTERNATIONAL LAW 45. What is a defined territory?


It is not necessary that there exists a fully defined territory. What is
40. What is an international legal person? important, however, is the existence of a stable political community in
An international legal person is an entity of a type recognized by customary control of a certain geographic area.
law as capable of possessing rights and duties and of bringing international
claims, and having these capacities conferred upon it, is a legal person. If 46. What kind of ‘government’ is necessary?
the first condition is not satisfied, the entity may still have limited According to most highly qualified publicist Rosalyn Higgins, it is
personality dependent on the agreement or acquiescence of recognized legal necessary that an effective government exists with centralized
persons and opposable on the international plane only to those agreeing or administrative and legislative organs.
acquiescent.
47. What is sovereignty as contemplated in the Montevideo Convention?
41. Who are the established legal persons under international law? According to Former Justice of the International Court of Justice, Jessup,
According to most highly qualified publicist Ian Brownlie, among the Pursuant to the Montevideo Convention, sovereignty or independence is the
established legal persons include States, political entities legally proximate capacity to enter into relations with other States.
to States, condominia, internationalized territories, UN administration of
48. When is there a State in statu nascendi?

MARCK JOSEPH ILUSTRE MACARAEG


ATENEO LAW SCHOOL 2012
PUBLIC INTERNATIONAL LAW

In exceptional circumstances, a people may be recognized by the and not purporting to be legal characterizations of acts of other States has
international community, and by interested parties, as having entitlement to little value.
statehood, and thus as being a State in statu nascendi. It is akin to a de
facto government and the legal consequences of its acts before full 54. What is the effect if a government is not recognized by other nations?
statehood are recognized by governments and foreign courts. According to the Tinoco Concessions Arbitration, non-recognition by other
States of a government claiming to be a national personality is usually
49. Does the illegal occupation of a State terminate the Statehood or evidence that it has not yet attained the independence and control entitling it
personality another? by international law to be classed as such. However, if the non-recognition
According to Ian Brownlie, a state remains ‘independent,’ in the sense of goes into its illegitimacy or irregularity or origin, their non recognition loses
retaining separate personality, if a foreign legal order impinges on it, evidential weight.
provided that the impingement occurs under a title of international law.
Illegal occupation cannot of itself terminate Statehood pursuant to the 55. What is the declaratory theory of recognition?
principle of ex injuria non oritur jus. The declaratory theory of recognition states that the political act of
recognition is a precondition of the existence of legal rights: in its most
50. What is continuity of states? extreme form this is to say that the very personality of a State depends on
According to the Tinoco Arbitration, State continuity involves the changes the political decision of other states.
in the head of State or the internal form of government. Such change does
not affect the legal rights and responsibility of States. 56. What is the constitutive theory of recognition?
The constitutive theory allows certain rights prior to recognition.
51. What is state succession?
State succession arises when one international personality takes the place of 57. Can recognition be retroactive?
another, for example, by union or lawful annexation. In general, it is The practice of British and American courts have applied the principle of
assumed that State succession is likely to involve changes in the legal status retroactivity in following or interpreting the views of the executive in
and rights of the entities concerned. matters of recognition, although Oppenheim opines that such practice is one
of convenience rather than principle. Generally however, recognition
52. Can micro-states have international personality? cannot be retroactive.
Yes, albeit limited at times. Membership of the United Nations or other
international organizations is not expressed to be conditioned by the size of VI. TERRITORIAL SOVEREIGNTY
the State concerned. However, it is necessary according to Article 4 of the
UN Charter that the State has the ability to carry out the obligations 58. What is sovereignty?
contained in the Charter a requirement of admission to membership. According to most highly qualified publicist Ian Brownlie, sovereignty is
the right of a State to exercise supreme political authority over a geographic
V. RECOGNITION OF STATES AND GOVERNMENTS region and its inhabitants.

53. What is the value of protest and recognition? 59. What is the extent of territorial sovereignty?
It depends. Acts of protest and recognition play a subsidiary but, in Territorial sovereignty extends principally over land territory, the territorial
practice, not insubstantial role in the resolution of disputes. They may, at sea appurtenant to the land, and the seabed, and subsoil of the territorial sea.
times, provide good evidence of the state of the law on the issues involved. It includes islands, islets, rocks, and reefs.
On the other hand, protest or recognition based solely on pure acts of policy
60. What is a terra nullius?

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ATENEO LAW SCHOOL 2012
PUBLIC INTERNATIONAL LAW

According to most highly qualified publicist Malcolm Shaw, a terra nullius


is land that is legally susceptible to acquisition by States but not as yet VIII. THE LAW OF RESPONSIBILITY
placed under territorial sovereignty.
68. When will the international responsibility of a State arise?
61. What is the concept of res communis? In Phosphates in Morocco, the Permanent Court of International Justice
A res communis, such as the high seas and outer space, is not capable of declared that when a State commits an internationally wrongful act against
being placed under state sovereignty. another State, international responsibility is established immediately as
between the two States.
62. Is sovereignty lost by the belligerent occupation of another State?
No. The important features of sovereignty in such cases are the continued 69. Is State responsibility essentially bilateral?
existence of legal personality of the ‘ousted’ State and the attribution to that No. The International Court of Justice recognized in the Barcelona
legal person and not to the holders for the time being. Traction that an essential distinction should be drawn between obligations
of a State to the international community as a whole and those arising vis-à-
63. What is residual sovereignty? vis another State. It can be said that all States have a legal interest in the
former, as they are obligations erga omnes.
VII. IMMUNITIES FROM JURISDICTION
70. What is the coverage of international responsibility?
64. What is the relationship between territorial jurisdiction and sovereign According to James Crawford, international responsibility covers relations
immunity? which arise under international law from the internationally wrongful act of
The classic illustration of this relationship has been penned by US Supreme a State whether such relations are limited to the wrongdoing State and one
Court Chief Justice Marshall who wrote in The Schooner Exchange v. injured State or whether they also extend to other States or subjects of
Mcfaddon that the jurisdiction of a State within its territory was exclusive international law.
and absolute, but it did not encompass foreign sovereigns. In Pinochet, it
was held that it is a basic principle of international law that one sovereign 71. When is there an internationally wrongful act?
State does not adjudicate the conduct of a foreign State. According to Article 2 of the Articles on State Responsibility, two elements
are required to establish the existence of an internationally wrongful act of
65. What are the limitations on immunity? the state. First, the conduct in question must be attributable to the state
As a general principle, the immunity of foreign sovereigns is delimited by a under international law. Second, for responsibility to attach to the act of the
right on the part of the receiving State to use reasonable force to prevent or state, the conduct must constitute a breach of an international legal
terminate activities which are in excess of the licence conferred or are obligation in force for that state at that time.
otherwise in breach of international law.
72. What are the consequences of an internationally wrongful act?
66. What is the reason behind the immunity? YE, according to this Honorable Court in the Chorzow Factory Case, aside
According to Oppenheim, the immunity given to foreign sovereigns is a from the obligation of cessation and assurances or guarantees of non-
consequence of the equality and independence of States that municipal repetition, the consequence of a commission of an internationally wrongful
courts accept the validity and refrain from reviewing the acts of foreign act involves an obligation to make reparation in an adequate form.
States and their agents, including legislation. Reparation must, so far as possible, wipe out all the consequences of the
illegal act and re-establish the situation which would, in all probability,
67. What’s the difference between non-justiciability and immunity as a have existed if the wrongful act had not been committed.
jurisdictional bar?

MARCK JOSEPH ILUSTRE MACARAEG


ATENEO LAW SCHOOL 2012
PUBLIC INTERNATIONAL LAW

73. Is the characterization of a State’s conduct as ‘internationally exercise elements of governmental authority. This may include public
wrongful’ affected by that State’s internal law? corporations, semi-public entities, and even private companies in some
No. According to Article 3 of the Articles on State Responsibility, the instances.
characterization of an act of a State as internationally wrongful is governed
by international law. Such characterization is not affected by the 79. What about organs placed at the disposal of a State by another State?
characterization of the same act as lawful by the State’s internal law. According to Article 6 of the Articles on State Responsibility, the conduct
of an organ placed at the disposal of a State by another State shall be
74. What are the different modes of attribution? considered an act of the former State under international law if the organ is
YE, according to the Articles on State Responsibility, The acts which may acting in the exercise of elements of the governmental authority of the State
be attributed to the state may be acts of state organs, the acts of other at whose disposal it is placed.
persons empowered by the government to exercise governmental authority,
or is acting on the instructions of, or under the direction or control of, the 80. Can the acts of State organs or entities in excess of their authority or
state, or the acts of revolutionaries. contravention of instructions be attributable to the State?
Yes. It is clear from Article 7 of the Articles on State Responsibility that
75. What is a State organ? the conduct of an organ of a State or of a person or entity empowered to
According to Article 4 of the Articles n State Responsibility, a State organ exercise elements of the governmental authority shall be considered an act
includes entities exercising legislative executive, or judicial or any other of the State under international law if the organ, person or entity acts in that
functions, whatever position it holds in the organization of a State, and capacity, even if it exceeds its authority or contravenes instructions.
whatever its character as an organ of the central government or of a
territorial unit of the State. It also includes any person or entity which has 81. Is a conduct directed or controlled by the State attributable to the
that status in accordance with the internal law of the State. State?
Yes. The conduct of a person or group of persons shall be considered an act
76. Are all acts of a State organ attributable to the State? of a State under international law if the person or group of persons is in fact
No. However, Responsibility may only be excluded in cases where the act acting on the instructions of, or under the direction and control of, that State
had no connection with the official function and constituted a purely private in carrying out the conduct.
act. Ultra Vires acts of an organ are nevertheless considered as an act of the
State. 82. What conduct can be attributable to the State in the absence or default
of official authorities?
77. Can the conduct of non State organs exercising governmental functions According to Article 9 of the Articles on State Responsibility, the conduct
be attributable to the State? of a person or group of persons shall be considered an act of a State under
Yes. According to Article 5 of the Articles on State Responsibility, the international law if the person or group of persons is in fact exercising
conduct of any person or entity which is not an organ of a State but which is elements of the governmental authority in the absence or default of the
empowered by the law of that State to exercise elements of governmental official authorities in circumstances such as to call for the exercise of those
authority shall be considered an act of the State under international law, elements of authority.
provided the person or entity is acting in that capacity in the particular
instance. 83. To whom shall the conduct of an insurrectional movement be
attributed?
78. What is an entity? It depends. If the movement becomes the new government a State, then the
An entity, for purposes of State responsibility, is the wide variety of bodies conduct of the insurrectional movement shall be considered as an act of that
which, though not organs, may be empowered by the law of a State to State under international law. If the insurrectional movement succeeds in

MARCK JOSEPH ILUSTRE MACARAEG


ATENEO LAW SCHOOL 2012
PUBLIC INTERNATIONAL LAW

establishing a new State in part of the territory of the pre-existing State, measure of self-defense taken in conformity with the Charter of the United
then its conduct shall be considered as an act of the new State under Nations.
international law.
90. What is a countermeasure?
84. Can a State subsequently ratify the acts of a private person or entity? According to the Gabcikovo-Nagymaros Project case, a countermeasure is a
Yes. In such a case, according to Article 11 of the Articles on State conduct of a State in response to a previous international wrongful act of
Responsibility, the conduct which is not attributable to a State shall another State and directed against that State.
nevertheless be considered an act of that State under international law if and
to the extent that the State acknowledges and adopts the conduct in 91. What are the elements of force majeure?
question. Force majeure may only be invoked if three elements are met: first, the act
in question must be brought about by an irresistible force or an unforeseen
85. When is there breach of an international obligation? event; second, such should be beyond the control of the State concerned;
According to Article 12 of the Articles of State Responsibility, there is a and third, such makes it materially impossible in the circumstances for the
breach of an international obligation by a State when an act of that State is State to perform the obligation.
not in conformity with what is required of it by that obligation regardless of
its origin or character. 92. When can distress be invoked?
There is distress when the agent of a State adopts a conduct inconsistent
86. What if the State is not bound by an international obligation at the time with the State’s international obligations because the agent had no other
the act contrary to such obligation was committed, can there be a reasonable way of saving lives. In distress, the interest concerned is the
breach? immediate one of saving people’s lives (such as an aircraft experiencing a
No. According to Article 13 of the Articles on State Responsibility, an act mechanical failure).
of a State does not constitute a breach of an international obligation if a
State is not bound by the obligation in question at the time the act occurs. 93. When is there a state of necessity?
There is necessity where the only way a State can safeguard an essential
87. What are the circumstances that preclude the wrongfulness of a State’s interest threatened by a grave and imminent peril is, for the time being, not
action? to perform some other international obligation of lesser weight or urgency.
YE, according to Chapter V of the Articles on State Responsibility, a
wrongful act of a State is precluded in cases of a valid consent, self-defense, 94. When can necessity be invoked?
countermeasures, force majeure, distress, and a state of necessity. According to Article 25 of the Articles on State Responsibility, necessity
may be invoked if the act is: first, the only means for the State to safeguard
88. How can consent preclude the wrongfulness of an act? an essential interest against a grave and imminent peril; and second, such
According to Article 20 of the Articles on State Responsibility, consent by a does not seriously impair an interest of the State or States towards which the
State to particular conduct by another State precludes the wrongfulness of obligation exists, or of the international community as a whole.
that act in relation to the consenting State, provided the consent is valid and
to the extent that the conduct remains within the limits of the consent given. 95. What are the instances wherein a State cannot invoke necessity?
According to Article 25 of the Articles on State Responsibility, a State
89. Can a State invoke self-defence? cannot invoke necessity if the international obligation in question excludes
Yes. According to Article 21 of the Articles on State Responsibility, the the possibility of necessity or if the State has contributed to the situation of
wrongfulness of an act of a State is precluded if the act constitutes a lawful necessity.

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ATENEO LAW SCHOOL 2012
PUBLIC INTERNATIONAL LAW

96. Can a State invoke any of the circumstances precluding wrongfulness No. According to Article 32 of the Articles on State Responsibility, a State
of an act for its violation of a peremptory norm? cannot rely on the provisions of its internal law as justification for failure to
No. According to Article 26 of the Articles on State Responsibility states comply with its obligations. This is an affirmation of Article 27 of the
that nothing in the Articles precludes the wrongfulness of any act of a State VCLT.
which is not in conformity with an obligation arising under a peremptory
norm of general international law. 103. Can there be an award of interest in international cases?
Yes. According to Article 38 of the Articles on State Responsibility,
97. What are the consequences of invoking a circumstance which preclude interest on any principal sum shall be payable when necessary in order to
the wrongfulness of an act? ensure full reparation. Interest runs from the date when the principal sum
YE, According to Article 27 of the Articles on State Responsibility, the should have been paid until the date the obligation to pay is fulfilled.
State should comply with its obligation, if and to the extent that the
circumstance precluding the wrongfulness no longer exists; and in some 104. Is the conduct of the injured State taken into account in awarding
instances, compensation for any material loss caused by the act in question. reparations?
Yes. According to Article 39 of the Articles on State Responsibility, in
98. What are the different forms of reparation? determining reparation, account shall be taken of the contribution to the
According to Article 34 of the Articles on State Responsibility, full injury by willful and negligent action or omission of the injured State or any
reparation for injury caused by an internationally wrongful act shall take the person or entity in relation to whom reparation is sought.
form of restitution, compensation and satisfaction, either singly or in
combination. 105. When can an injured State invoke the responsibility of another State?
According to Article 42 of the Articles on State Responsibility, a State is
99. What is restitution? entitled as an injured State to invoke the responsibility of another State if
According to the Factory at Chorzow case, restitution consists of the the obligation breached is owed to either: (a) that State individually; or (b) a
obligation of the responsible State to restore the undertaking and, if such is group of States including that State, or the international community as a
not possible, to pay its value at the time of the indemnification, which value whole, and the breach of the obligation: specifically affects that State; or is
is designed to take place of restitution which has become impossible. of such a character as radically to change the position of all other States to
which the obligation is owed with respect to the further performance of the
100. What is compensation? obligation.
According to Article 36 of the Articles on State Responsibility,
compensation for damage covers any financially assessable damage 106. When can a State lose the right to invoke responsibility?
including loss of profits insofar as established. The State responsible for an According to Article 45 of the Articles on State Responsibility, the
internationally wrongful act is under an obligation to compensate for the responsibility of a State may not be invoked if: first, the injured State has
damage caused, insofar as such damage is not made good by restitution. validly waived the claim; or second, the injured State may be considered to
have validly acquiesced.
101. What is satisfaction?
Satisfaction may consist in an acknowledgement of the breach, an 107. What happens if there are several States injured by the same
expression of regret, a formal apology, or another appropriate modality. It internationally wrongful act?
must not be out of proportion to the injury and may not take a form According to Article 46 of the Articles on State Responsibility, in such a
humiliating to the responsible State. case, each State may separately invoke the responsibility of the State which
has committed the internationally wrongful act.
102. Can the Responsible State rely on the provisions of its internal law?

MARCK JOSEPH ILUSTRE MACARAEG


ATENEO LAW SCHOOL 2012
PUBLIC INTERNATIONAL LAW

IX. ADMISSIBILITY OF CLAIMS thenceforth legally required to follow a course of conduct consistent with
the declaration.
108. What are the requisites of admissibility?
According to Article 44 of the Articles on State Responsibility, the 113. What grounds can be invoked to terminate a treaty?
Responsibility of a State may only be invoked if: first, the claim is brought YE, according to Article 54 of the Vienna Convention on the Laws of
in accordance with any applicable rule relating to the nationality of claims; Treaties, A treaty may be terminated or a party may withdraw in conformity
and second, all available and effective local remedies have been exhausted. with the provisions of the treaty or at any time by consent of all the parties
after consultation with the other contracting states. Material breach,
X. DIPLOMATIC PROTECTION OF INDIVIDUALS AND GROUPS supervening impossibility of performance, and rebus sic stantibus will also
terminate the treaty.
109. What is jurisdiction?
YE, according to most highly qualified publicist, Ian Brownlie, Jurisdiction 114. In what instances can a non-party be bound by a treaty?
refers to particular aspects of the general legal competence of states often YE, a third party will be bound by a treaty if such treaty is a codification of
referred to as sovereignty such as judicial, legislative and executive. Under custom or jus cogens. Further YE, if the third State consents to be bound by
international law, the governing principle is that a state cannot take the treaty then such State shall be bound pursuant to the principle of pacta
measures on the territory of another state by way of enforcement of national tertiis nec noscent nec prosunt.
laws without the consent of the latter.

110. What is the concept of diplomatic protection?


YE, According to Article 1 of the Articles on Diplomatic Protection, it is a
means for a State to take diplomatic action against another State on behalf
of its national whose rights and interests have been injured by the other
State.

111. When can a State exercise its right of diplomatic protection?


YE, According to Article 44 of the Articles on State Responsibility, the
responsibility of a State may only be invoked if: first, the claim is brought
in accordance with the nationality of claims; and second, if local remedies
in the injuring State have been exhausted.

XI. THE LAW OF TREATIES

112. When can a State’s unilateral declaration become binding upon such
State?
YE, according to the International Court of Justice in the Nuclear Tests
Case, unilateral declarations concerning a legal or factual situation may
create legal obligations when it is the intention of the state making the
declaration to become bound according to its terms, that intention confers
on the declaration the character of a legal undertaking, the state being

MARCK JOSEPH ILUSTRE MACARAEG


ATENEO LAW SCHOOL 2012