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SOURCES OF INTERNATIONAL LAW

International Conventions- whether general or particular, establishing rules expressly


recognized by the contesting states (treaty) - 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.

A treaty may violate international law if it conflicts with a peremptory norm or jus
cogens of international law. A treaty is void, if at the time of its conclusion, it conflicts
with jus cogens norm. If a new peremptory norm of general international law emerges,
any existing treaty which is in conflict with that norm becomes void and terminates.


 International Custom
- as evidence of a general practice accepted as law-


General and consistent practice of States followed by them from a sense of legal
obligation.
a. Duration of practice
b. Uniformity, consistency of practice
c. Generality (majority of specially affected States)
d. Opinio Juris

Generally Accepted Principles of International Law
- general principles of law recognized by


civilized nations- Principles based on natural justice common to most national systems of
law.
(e.g., good faith, estoppel, exhaustion of local remedies, unjust enrichment).

Judicial Decisions and teachings of the most highly qualified publicists -, as subsidiary
means for the determination of rules of law-
Jud decisions- A subsidiary means for the determination of rules of law that are
acceptable so long as they correctly interpret and apply international law. Decisions of
national courts, when applying international law, are acceptable.
Teachings of the Most Highly Qualified Publicists (ICJ Statute, art. 38)
The word 'publicist' means 'learned writer.' Learned writings, like judicial
decisions, can be evidence of customary law, and can also play a subsidiary role in
developing new rules of law.
Requisites For A “Highly Qualified Publicist”
1. Fair and impartial representation of law.
2. Acknowledged authority in the field.

****These shall not prejudice the power of the Court to decide ex aequo et bono, if the
parties agree thereto. 

EX AEQUO ET BONO - It is to rule in justice and fairness; equity overrides all other rules
of law. The ICJ has no power to decide a case ex aequo et bono, unless all parties agree
thereto (ICJ Statute, art. 38 (2)).
TREATIES
Definition
VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)

“A treaty means 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.”

Elements:
It is an international agreement 

Between States 

In writing 

Governed by International Law 


Some writers hold that even an oral argument can be binding.


But only written agreements are covered under the provisions of the Vienna
Convention.


No particular form is required.


Qatar v. Bahrain :held that the exchange of notes between the two heads
of state was considered an international agreement.

(Nuclear test cases: Australia v. France, New Zealand v. France): Unilateral declarations
can be a source of obligation, provided that:
1. the commitment is very specific, and
2. there was a clear intent to be bound

General

Binding only on the parties,


The number of contracting parties and the generality of the acceptance of the rules
created by the treaty can have the effect of creating a universal law, in the same way
that general practice suffices to create customary law
All treaties must be observed by the parties under the principle of pacta
sunt servanda

PACTA SUNT SERVANDA


Every treaty in force is binding upon the parties to it and must be performed by
them in good faith. (Vienna Convention on the Law of Treaties, art. 26).

A state can avoid performance if the treaty collides with its Constitution, but it
cannot escape liability that it may incur as a result of such non-performance.
From the perspective of public international law, a treaty is favored over
municipal law pursuant to the principle of pacta sunt servanda. A party to a
treaty is not allowed to invoke the provisions of its internal law as justification
for its failure to perform a treaty. Nevertheless, as far as the Court is concerned,
a treaty is always subject to qualification or amendment by a subsequent law, or
that, it is subject to the police power of the State (Lim v. Executive Secretary, G.R.
No. 151445, 2002).

Rebus sic stantibus is an exception to the rule of pacta sunt servanda.

REBUS SIC STANTIBUS


General Rule: A fundamental change of circumstances is not a ground for a
treaty to be suspended or terminated.

Exceptions:
1. The circumstance is the essential basis of consent.
2. The obligation is transformed radically that it becomes burdensome or
unreasonable.

Exceptions to the Exceptions:


1. If the treaty establishes a boundary;
2. If the fundamental change is the result of a breach by the party invoking it
either of an obligation under the treaty or of any other international obligation
owed to any other party to the treaty. (Vienna Convention on the Law of
Treaties, art. 62)

FISHERIES JURISDICTION CASE – “rebus sic stantibus / fundamental change”


Iceland and UK entered into an agreement called the 1961 Exchange of Notes
delineating fisheries jurisdiction around their maritime areas. Now Iceland
denounces the agreement, deems it terminated, and asserts exclusive
jurisdiction over the 12 mile fishing area from its coast. It stresses its
fundamental and exceptional dependence upon fishing as a source of livelihood,
and alleges that considering the advancement of technology and fishing
capacities, its vital interests and existence is threatened, therefore necessitating
the application of the principle of rebus sic stantibus. It also refuses to confer
jurisdiction upon the ICJ – despite the compromissory clause in the agreement.
The contention of Iceland is untenable. The Court is not satisfied that the
circumstances have so changed as to radically transform the
obligations arising
from the Exchange of Notes. The change must be a fundamental one. The
burdens arising from the agreement must have increased to such an extent that
they are now essentially different from that agreed upon. That burden of proof
was not quite discharged.
TREATIES&CUSTOMS
WON treaties override customs depends on the intention of the parties.
If the treaty is intended to be declaratory of customary law, it may be seen as
evidence of customary law
when a treaty and custom conflict, it depends
General Rule: if the treaty comes later than a particular custom, as between the
parties to the treaty, the treaty should prevail because it manifests a deliberate
choice of the parties and the principle of pacta sunt servanda
Exception: if a later treaty is contrary to a customary rule that has the status of
jus cogens (such as genocide and slave trade), custom will prevail.
JUS COGENS (PEREMPTORY NORM OF GEN. INT’L LAW)
A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law is a
norm accepted and recognized by the international community of States
as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law
having the same character.
If a custom develops after a treaty, the rule is not clear. In practice, an attempt is made
to keep the treaty alive by efforts at reconciling a treaty with the developing custom.

Making of treaties Negotiation


Bilateral and multilateral treaties generally originate from the foreign ministries who do the
negotiation
Larger multilateral treaties are negotiated in diplomatic conferences which are run like a
legislative body

Procedures in Treaty-Making
1. Negotiation
2. Signature
3. Ratification
4. Exchange of Instruments of Ratification
5. Registration with UN

Power to negotiate
The negotiators must possess the power to negotiate
An act relating to the conclusion of a treaty by one who has no proper authority has no legal
effect unless confirmed by the state
Vienna Convention:
Art. 7. Full powers
1. A person is considered as representing a State if:
-he produces appropriate full powers or
-it appears from the practice of the States concerned or from other circumstances that
their intention was to consider that person as representing the State for such purposes and to
dispense with full powers
2. The following are considered as representing the State [No need for full powers]
1. Heads of State, Heads of Government and Ministers of Foreign Affairs
2. heads of diplomatic missions
3. representative accredited by States to an international conference or organisation or
one of its organs
Note: subsequent confirmation of acts of representatives without full powers validates
action on behalf of the state

Authentication of text
Negotiations conclude with the signing of the document. The signatures serve as
authentication of the document
Authentication of a treaty makes the text authoritative and definitive.

Consent to be bound
Once the document has been signed, there are stages which follow which culminate in
making the document binding. The most important step is the consent to be bound. The consent
may be expressed by (1) signature, (2) exchange of instruments constituting a treaty, (3)
ratification, (4)acceptance, (5) approval or accession, or (6) by any other means if so agreed.

Art. 14. Consent to be bound by a treaty expressed by ratification, acceptance or approval:


The consent of the state to be bound by a treaty is expressed by ratification when:
1. the treaty provides for such consent to be expressed by means of ratification
2. it is otherwise established that ratification should be required
3. the representative has signed the treaty subject to ratification
4. the intention of the state to sign the treaty subject to ratification appears from the full
powers of its representative
In the Philippines, ratification is governed by Art. 7, Section 21 of the Constitution.
Section 21. No treaty or international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate.

Pertinent Constitutional Provisions


Art. 7, Section 20. The President may contract or guarantee foreign loans on behalf of the
Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to
such limitations as may be provided by law. The Monetary Board shall, within thirty days from
the end of every quarter of the calendar year, submit to the Congress a complete report of its
decision on applications for loans to be contracted or guaranteed by the Government or
government-owned and controlled corporations which would have the effect of increasing the
foreign debt, and containing other matters as may be provided by law.
[General Rule]
Section 21. No treaty or international agreement shall be valid and effective unless concurred in
by at least two-thirds of all the Members of the Senate.
Art. 8, Sec. 4
(2) All cases involving the constitutionality of a treaty, international or executive agreement, or
law, which shall be heard by the Supreme Court en banc, and all other cases which under the
Rules of Court are required to be heard en banc, including those involving the constitutionality,
application, or operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations, shall be decided with the concurrence of a majority of the
Members who actually took part in the deliberations on the issues in the case and voted
thereon.
[Exception]
Art. 18, Section 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning military bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred
in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by
the people in a national referendum held for that purpose, and recognised as a treaty by the
other contracting State.

Reservations
- when are reservations allowed?
- exceptions?

Definition- reservation is a unilateral statement 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 that State.
-Meant only for multilateral treaties
-Interpretative declarations refers to how a state understands its adoption of the treaty
-A state which has made a reservation which has been objected to by one or more parties to a
Convention can be regarded as a party to the convention if the reservation is compatible with
the object and purpose of the Convention

GR: A state may, when signing, ratifying, accepting, approving, or acceding to a treaty,
formulate a reservation
Exceptions:
1. reservation is prohibited by treaty
2. treaty provides that only specified reservations are allowed 3. reservation is
incompatible with the object and purpose of
the treaty

-How are reservations made and withdrawn?


Article 23 Procedure regarding reservations

1. (a) A reservation, an express acceptance of a reservation and an


objection to a reservation must be formulated in writing and
communicated to the contracting States and other States entitled to
become parties to the treaty. 


2. (b) If formulated when signing the treaty subject to ratification,


acceptance or approval, a reservation 
must be formally confirmed by
the reserving State when expressing its consent to be bound by the
treaty. In such a case the reservation shall be considered as having been
made on the date of its confirmation. 

3. (c) An express acceptance of, or an objection to, a reservation made
previously to confirmation of the reservation does not itself require
confirmation. 


The withdrawal of a reservation or of an objection to a reservation must be


formulated in writing.

-What happens to states who reject convention?

Reservations to the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide
The following questions were submitted to the UN:
1. can the reserving state be regarded as being a party to the Convention while still
maintaining its reservation if the reservation is objected to by some of the members of
the Convention?
ANS: [Yes, only if reservation is compatible with the convention]
A State which has made a reservation objected to by some of the parties to the
Convention, can be regarded as being a party to the Convention of the
reservation is compatible with the object and purpose of the Convention;
otherwise, it cannot be regarded as a party to the Convention
2. If yes, what is the effect of the reservation as between the reserving state and
a) the parties that objected
ANS: the objecting State can consider the reserving State NOT a party to the
Convention
b) the parties that accepted
ANS: the accepting State can consider the reserving State a party to the
Convention
3. What is the legal effect if an objection to a reservation is made
a. by a signatory who has not yet ratified
ANS: can have legal effect of only if it has ratified. But before
ratification, no effect
b. by a state entitled to sign or accede but has not yet done so
ANS: no legal effect
Entry into force of treaties
Treaties enter into force on the date agreed upon by the parties Art. 24. Entry into force:
A treaty enters into force in such manner and upon such date as agreed upon [stipulation]
In the absence of agreement, as soon as consent to be bound has been established for all the
negotiating states [consent to be bound by all]
when consent to be bound comes after the treaty has come into force, the treaty comes into
force on the date when consent to be bound has been obtained
a treaty is binding upon each party in respect of its entire territory, unless otherwise provided
for by the treaty

- What is the effect of the absence of a reservation clause in a convention


- The Rome Statute does not allow reservations (art 120)
RESERVATIONS TO THE GENOCIDE CONVENTION –
The Genocide Convention of 1948 does not contain a “reservation clause.” The UN General
Assembly now asks the ICJ for an advisory opinion regarding the implications of reservations made
thereto. The following conclusions were arrived at:
In the absence of a provision on reservation, it does not automatically follow that reservations
are absolutely disallowed. In order to determine the effects of such reservations, or if they are at
all allowed, due regard for the character and purposes of the multilateral convention must be
had. In this case, upon examination of the preparatory stages o f the Convention, it can be gleaned
that only limited reservations can be allowed – given the intendment of the convention to outlaw
genocide as an international crime, as well as to admit as many member states w/o defeating the
purpose of such. The Genocide Convention was obviously intended to be universal in scope.
Absolute or general reservations, in this case cannot be made; it is inconsistent w/ the universal
purpose of the convention. But neither is it true that reservations must bear the assent of all
contracting states. Such a rule would be impracticable and inconsistent w/ the universal intent of
the convention.
In this case, a state-party making a reservation w/c was opposed to can still be deemed a party if
the reservation is not wholly inconsistent w/ the policy and purpose of the Genocide Convention.
If, to the opinion of the objecting state, the reservation is wholly inconsistent w/ the said policy,
then it may treat the reserving party as not a party to the convention. The treaty does not enter
into force as between them. If the reservation was accepted, there is no problem.
In the absence of ratification, the signatory state cannot yet be considered party to the
convention; and if it makes a reservation, it is deemed only provisional in nature. It has not legal
effect as yet. Provisional objections thereto can also be made. These merely signify the attitude of
the reserving states – still subject to ratification. But from the moment of ratification, the effects as
stated earlier (first paragraph) come to play.

Interpretation
-What tests to apply first in determining the interpretation of provisions of treaty
(primary means and subsidiary means)
PRIMARY MEANS
Article 31 General rule of interpretation
GR:
1. a treaty shall be interpreted in good faith
2. ordinary meaning of words in context to other related texts( except: Give "special
meaning" if the parties so intended)
3. relate to object and purpose

Interpretation shall comprise, in addition to the text, including its preamble and annexes:
1. Any agreement relating to the treaty
2. Any instrument in connection with the conclusion of the treaty subsequent agreements
by the parities
3. Subsequent practice in the application of the treaty
4. Other rule of international law applicable
5. interpretation of peace treaty case

SUPPLEMENTARY MEANS

Recourse may be had to supplementary means of interpretation, including the


preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine the
meaning when the interpretation according to article 31:

a) leaves the meaning ambiguous or obscure; or

b) leads to a result which is manifestly absurd or unreasonable.

-exception when to give special meaning to given terms


- A special meaning shall be given to a term if it is established that the parties so
intended.

- - Rules of conflict between treaty and law, treaty and constitution, exec. agreement
v. domestic legislation, exec. issuance and implementing rules
- Know how to defend conflicts (is it important to the timing of which came first, where
it should be tried, or is it merely consti > everything?)

Rules on conflict between a treaty and law:


It depends on which court is deciding:
1. international court - will uphold treaty obligation in general
2. domestic court - will uphold local laws
Specific situations of conflict:
1. treaty v. constitution
GR: VCLT also provides that a party may not invoke the provisions of a municipal
law as justification to perform a treaty
Exception:
VCLT provides that when constitutional violation is manifest and concerns a rule
of internal law of fundamental importance, state may deviate from treaty
obligation
under the dualist theory, unconstitutionality of a treaty is purely a domestic
matter, and that State faces risk of international sanction
2. treaty v. domestic legislation
when 2 instruments relate to the same subject and are irreconcilable, the later in date shall
control in the domestic sphere, provided that the treaty stipulation is self- executing.
However, a treaty, even if contrary to a later statute, is nevertheless binding in international
law.

Vienna Convention
- Art 27- Article 27. INTERNAL LAW AND OBSERVANCE OF TREATIES A party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty. This rule is without
prejudice to article 46.

- Art 46 Article 46. PROVISIONS OF INTERNAL LAW REGARDING COMPETENCE TO CONCLUDE TREATIES
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation
of a provision of its internal law regarding competence to conclude treaties as invalidating its consent
unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State con ducting itself in the matter in
accordance with normal practice and in good faith.

- Sei Fuji v. California


Facts:
The state of California escheated, pursuant to its alien land law, the land of a
Japanese national in California which he purchased. He claims that the said alien land
law should be declared invalid because it violated the UN Charter, more specifically, 3
provisions on human rights and the Charter's Preamble.
Issue:
W/N the law is valid - Yes
Held:
Yes. Although the said provisions require that promotion and observance of
fundamental freedoms and equality, these provisions are not self-executing -- it needs
an enabling legislation to affect private persons. These provisions are merely framed as
a promise of future action by the member nations. The rights of private persons were
not prescribed in detail in the UN Charter in regard to the land law.

Invalidity of treaties
grounds for invalidation of a treaty:
[FEDTC]
-fraud
-error of fact
If the error relates to a fact which was assumed by that State to exist at the
time when the treaty was concluded and formed an essential basis of its
consent to be bound
exception: when State contributed by its own conduct to the error, or if there
was constructive notice of such error to such State
-duress
-treaty violates jus cogens
-corruption
*grounds for invalidation can be ratified

Amendment and modification of treaties


Amendment
formal revision done with the participation by all the parities to the treaty
Modification
involves only some of the parties
a treaty may be amended by the agreement of the parties

Termination of treaties
Modes: [MICE]
2. material breach
3. impossibility of performance
4. change of fundamental position (rebus sic stantibus)
1. after expiration of period, or after purpose has been achieved

Authority to terminate treaties


In the Philippines and US, the authority to conclude treaties is shared between the
Senate and the President. Logically, they should also have the authority to terminate
treaties.
Succession to treaties
Clean Slate Rule
A newly independent state is not bound to maintain any treaty by reason of the
fact that at the date of the succession of States, the treaty was in force in respect
to the territory to which the succession of States relates

Case law On Treaties:


LEGAL STATUS OF EASTERN GREENLAND (Denmark v Norway)
FACTS:
The country of Denmark had established and administered colonies on the
southwestern coast of Greenland since 1721. Although they had also set up an outpost
on the eastern coast, vast areas in the eastern and northern parts of the island were
outside Danish rule. 

Between the years 1915 and 1921, Denmark sought to extend their authority and
sovereignty over the entire island, not just the southwestern parts. In order to do so,
they conducted several diplomatic talks with other nations to gain their consent in the
matter. These nations included the US, Great Britain, Japan, France, Italy, and Norway. 

Of particular importance is the correspondence between Denmark and Norway. The
Danish Minister informed the Norwegian government of Denmark’s plans to establish
authority over the whole island. In response, the Norwegian Foreign Minister Nils Ihlen
(NFM Ihlen) stated that his government “would make no difficulties regarding this
matter.” 

The Danish Government asked for a written confirmation of NFM Ihlen’s verbal promise.
The Norwegian Government did not reply. Despite this, Denmark formally declared its
sovereignty over all of Greenland. This is when the Norwegian government made their
reply, expressing their dissent over the matter. They claim that Eastern Greenland
remained a no man’s land, thus they were free to conduct whatever activities on such
land as they wished. To this, Denmark stated that they had sovereignty over all of
Greenland since before. Both countries failed to reach a compromise as to Greenland. 

A group of Norwegians occupied Mackenzie Bay (found in Eastern Greenland) and
through a formal proclamation claimed the Eastern Coast of Greenland, naming it Eirik
Raudes Land. 

Denmark took the case to the Permanent Court of International Justice (PCIJ). 

ISSUE:
1. WON Denmark had already established sovereignty over the entire island of
Greenland, thus making the claim of Norway over the Eastern part invalid
HELD:
1. YES. The court held that Denmark had long since established sovereignty over the
entire island, not merely the colonies, and that Norway was estopped from laying claim
to any part of Greenland by its acceptance of several commercial treaties that named
Greenland of Danish possession, as well as by NFM Ihlen’s declaration that Norway
acknowledges Denmark’s authority over the entire island.
2. The court rejected Norway’s contention that NFM Ihlen had no authority to give such
statement without the consent of the Norwegian Parliament. NFM Ihlen’s statements
became binding on the entire Norway government, thus their act of establishing an
outpost in the eastern part of the island violated Danish sovereignty over the entire
island.
DANUBE DAM CASE (DOCTRINES) – “change was caused by the party invoking rebus sic
stantibus” Impossibility of performance cannot be invoked if the cause for the
impossibility is the breach or fault of the party invoking it. The change must also be
unforeseen. Mere state of necessity cannot be invoked for terminating a treaty, but may
only serve to exonerate a party from liability. Violations of other treaty rules may serve
as ground for taking certain measures and counter measures, but does not by itself
suffice to cause the termination of a treaty.

SEI FUJII v. CALIFORNIA (DOCTRINE) – “self-executing vs. non-self-executing treaties”


The US Constitution distinguished form a treaty that is self-executing from one that is
not self-executing. The UN Charter Preamble required enabling legislation to affect
private persons, and the rights of private persons were not prescribed in detain the said
Un Charter w/ respect to the land law.

Bayan v. Zamora - VFA CASE


Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country,
unless the following conditions are sufficiently met, viz:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and, when so required by congress,
ratified by a majority of the votes cast by the people in a national referendum; and
(c) recognised as a treaty by the other contracting state.
The phrase “recognised as a treaty” means that the other contracting party accepts or
acknowledges the agreement as a treaty.
Moreover, it is inconsequential whether the United States treats the VFA only as an
executive agreement because, under international law, an executive agreement is as
binding as a treaty.
Lim v. Executive Secretary - Balikatan case
The Balikatan Exercises TOR does not need concurrence by Senate, it being an
implementation of an existing treaty
The VFA permits United States personnel to engage, on an impermanent basis, in
“activities," the exact meaning of which was left undefined. The expression is ambiguous,
permitting a wide scope of undertakings subject only to the approval of the Philippine
government.
The sole encumbrance placed on its definition is couched in the negative, in that United
States personnel must “abstain from any activity inconsistent with the spirit of this
agreement, and in particular, from any political activity.”
Pimentel v. Executive Secretary - President cannot be compelled to submit treaty to Senate
for ratification
W/N the Executive Secretary and the Department of Foreign Affairs have a ministerial
duty to transmit to the Senate the copy of the Rome Statute signed by a member of the
Philippine Mission to the United Nations even without the signature of the President –
NO.
The signing of the treaty and the ratification are two separate and distinct steps in the
treaty-making process. Ratification is generally held to be an executive act, undertaken by
the head of the government.
EO 459 issued by President Ramos provides the guidelines in the negotiation of
international agreements and its ratification. It mandates that after the treaty has been
signed by the Philippine representative, it shall be transmitted to the DFA. The DFA shall
then prepare the ratification papers and forward the signed copy of the treaty to the
President for ratification. After the President has ratified the treaty, the DFA shall submit
the same to the Senate for concurrence. Upon receipt of the concurrence of the Senate,
the Department of Foreign Affairs shall comply with the provisions of the treaty to render
it effective.
The signature does not signify the final consent of the state to the treaty. It is the
ratification that binds the state to the provisions thereof.
Under our Constitution, the power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate is limited only to giving or withholding
its consent, or concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its
ratification, refuse to ratify it. The decision is within the competence of the President
alone, which cannot be encroached by this Court via a writ of mandamus.
Abaye v. Ebdane - Loans Agreement with Japan
Loan Agreement No. PH-P204 was executed by and between the JBIC and the Philippine
Government pursuant to the Exchange of Notes executed by and between Mr. Yoshihisa
Ara, Ambassador Extraordinary and Plenipotentiary of Japan to the Philippines, and then
Foreign Affairs Secretary Siazon, in behalf of their respective governments.
Under the circumstances, the JBIC may well be considered an adjunct of the Japanese
Government. Further, Loan Agreement No. PH-P204 is indubitably an integral part of the
Exchange of Notes. It forms part of the Exchange of Notes such that it cannot be properly
taken independent thereof.
“Exchange of notes” is a record of a routine agreement that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of
the parties being in the possession of the one signed by the representative of the other.
Under the usual procedure, the accepting State repeats the text of the offering State to
record its assent. The signatories of the letters may be government Ministers, diplomats
or departmental heads. The technique of exchange of notes is frequently resorted to,
either because of its speedy procedure, or, sometimes, to avoid the process of legislative
approval.
“Treaties, agreements, conventions, charters, protocols, declarations, memoranda of
understanding, modus vivendi and exchange of notes” all refer to “international
instruments binding at international law."
An exchange of notes is considered a form of an executive agreement, which becomes
binding through executive action without the need of a vote by the Senate or Congress.
Pharmaceutical v. DOH - Milk Code
WHA resolutions are not part of the law of the land
The transformation method requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local legislation.
The incorporation method applies when, by mere constitutional declaration, international
law is deemed to have the force of domestic law.
Under Article 23 of WHO’s Constitution, recommendations of the WHA do not come into
force for members, in the same way that conventions or agreements under Article 19 and
regulations under Article 21 come into force. Article 23 of the WHO Constitution reads:
Under Art. 23. They can only make recommendations. The absence of a provision in
Article 23 of any mechanism by which the recommendation would come into force for
member states is conspicuous.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions,
can be validly implemented by the DOH through the subject RIRR.
Province of North Cotabato v. GRP Panel - MOA-AD
MOA-AD between GRP and MILF is not a treaty
While there were States and international organizations involved, in the negotiation and
projected signing of the MOA-AD, they participated merely as witnesses or, in the case of
Malaysia, as facilitator. Mere fact that the peace settlement is signed by representatives
of states and international organisations does not mean that the agreement is
internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal
effect to such commitments would not be detrimental to the security of international
intercourse - to the trust and confidence essential in the relations among States.
BUT while the MOA-AD would not amount to an international agreement, respondents’
act of guaranteeing amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally defective.
Bayan Muna v. Romulo - Validity of Non-Surrender Agreement with US
The Agreement is an Exchange of Notes constituting an international governmental
agreement. It is an international agreement but not in treaty form. It does not contravene
the Rome Statute because the ICC recognises the primacy of international agreements.
Primary jurisdiction rests upon the state and secondarily with the ICC
Ambassador Ricciardone sent a US Embassy Note to the Department of Foreign Affairs
(DFA) proposing the terms of the Non-surrender Bilateral Agreement (Agreement)
between the USA and the RP. The RP, represented by DFA Secretary Ople accepted the US
proposals embodied under the US Embassy Note adverted to.
It provides, among others that: “Persons of one Party present in the territory of the
other shall not, absent the express consent of the first Party, be surrendered or
transferred by any means to any international tribunal for any purpose, unless such
tribunal has been established by the UN Security Council”
Ambassador Ricciardone replied in a letter that the exchange of diplomatic notes
constituted a legally binding agreement under international law; and that under US law,
the said agreement did not require the advice and consent of the US Senate.
International agreements may be in the form of:
(1) treaties that require legislative concurrence after executive ratification; or
(2) executive agreements that are similar to treaties, except that they do not require
legislative concurrence and are usually less formal and deal with a narrower range of
subject matters than treaties.

China National Machinery v. Santamaria


A contract entered into between non-state entities does not constitute an executive
agreement as in this case, NLRC and China National Machinery
In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a
treaty, except that the former:
(a) does not require legislative concurrence;
(b) is usually less formal; and
(c) deals with a narrower range of subject matters.

Despite these differences, to be considered an executive agreement, the following three


requisites provided under the Vienna Convention must nevertheless concur:
(a) the agreement must be between states;
(b) it must be written; and
(c) it must be governed by international law. The first and the third requisites do
notobtain in the case at bar.
The Contract Agreement was not concluded between the Philippines and China, but
between Northrail and CNMEG. By the terms of the Contract Agreement, Northrail is a
GOCC, while CNMEG is a corporation duly organised and created under the laws of the
People’s Republic of China.Thus, both Northrail and CNMEG entered into the Contract
Agreement as entities with personalities distinct and separate from the Philippine and
Chinese governments, respectively.
Medellin v Texas

- this murderer wants to use an ICJ ruling in domestic courts. US court says he can’t.

1. a treaty is “equivalent to an act of the legislature,” and hence self- executing,


when it “operates of itself without the aid of any legislative provision.” 


2. [treaty] stipulations are not self-executing they can only be enforced pursuant to
legislation to carry them into effect.” 


3. Because none of these treaty sources creates binding federal law in the absence
of implementing legislation, and because it is uncontested that no such
legislation exists, we conclude that the Avena judgment is not automatically
binding domestic law. 


General Principles
- General Principles of Law -

INTERNATIONAL STATUS OF SW AFRICA – “trusteeship” The ICJ was asked for an advisory
opinion on the status of SW Africa under the International Trusteeship System and what are the
obligations of South Africa as the Mandatory. The answer is found in the general principles of
law as borrowed from traditional municipal law – under the principle of “trust.” Almost all
legal systems possess a system of trust, where for example some minor or lunatic’s
property (or even person) may be entrusted to a responsible person or trustee. By
analogy, it applies to trusteeship under international law. That being the case, South Africa,
as trustee state, exercises but limited control based on confidence and conscience and cannot
carry out the trust or mission for its own benefit. Any attempt to absorb the property entrusted to
them shall be illegal. Finding and applying the general principles of law is all about locating
those rules and institutions of private law as indications of policy – such as the principle
of trust, among many others.

DIVERSION OF WATERS FROM THE RIVER MEUSE – “equity” The principles of equity have
long been applied by international tribunals. Although the ICJ is not expressly authorized by its
Statute to apply equity, it is allowed to apply general principles of law recognized by civilized
nations – w/c includes equity. The power however to apply the principles of equity in no way
restricts the power of the ICJ to decide cases ex aquo et bono should the parties so agree
that the controversy is to be decided base on the said principle. The courts should not shirk
from applying such a principle of obvious fairness.

DISTINCTION BETWEEN EQUITY AND EX AEQUO ET BONO

4. Equity – when the law cannot cover every possible situation for the purpose of deciding
a 
 controversy, the case may be decided based on equitable principles 


5. Ex Aequo Et Bono – it pertains to the power of the ICJ to decide a case equitably
outside the rules of law, at the instance of the parties to the case 


Other General Principles of Law: principles of liability, responsibility, reparation, unjust


enrichment, property, eminent domain, indemnity, denial of justice, right of passage, prescription,
error, presumptions, administrative law, procedure, humanity, good faith, pacta sunt servanda,
estoppel, and human rights

APPLICATION IF INTERNATIONAL LAW BY DOMESTIC COURTS

FILARTIGA v. PENA-IRALA – “torture” Dolly Filatriga’s brother was tortured to death by Pena
in Paraguay due to her father’s political activism. She was even shown the corpse. Pena was
prosecuted therein but to no avail. Dolly thereafter went to the US and applied for political asylum.
She found out that Pena has arrived at the US and has overstayed – thus she commenced an
action before the NY Court against Pena based on the Alien Tort Statute, as well as the various
International Agreements and Conventions on Human Rights, such as the Universal Declaration.
The trial judge dismissed the case for lack of jurisdiction.

A state’s treatment of its citizens is now a matter of international concern. Torture has become
internationally outlawed, and the abhorrence thereto has come to acquire the status of
international customary law. It is said that the Universal Declaration of Human Rights no longer
fits into the category of “treaty” but has been elevated to the status of customary law. No
government has ever asserted a right to torture its people (or aliens). The law of nations is clear
and unambiguous in condemning torture.

A state has an interest in the orderly resolution of disputes among people w/in its borders
– even if the act complained of took place outside. So long as personal jurisdiction can be
acquired, the courts may adjudicate such transitory tort claims. In principle, it is an
expression of comity by giving effect to the laws of the state where the act was
committed. The law of nations forms an
 integral part of common law, and such is
recognized by the (US) Constitution. The contention that the law of nations forms part of state
law only to the extent that Congress has enacted them is untenable. Neither can Pena hide
behind the act of state doctrine. The Alien Tort Statute merely opens the door for the adjudication
by aliens of rights already recognized under the law of nations. For purposes of civil liability,
the torturer has become like the pirate or slave trader – hostis humani generis – an enemy
of al mankind.

TRENDTEX TRADING v. CENTRAL BANK OF NIGERIA – “incorporation vs.


transformation” The doctrine of incorporation states that the rules of IL and incorporated into
English (municipal) law automatically, unless they are in direct conflict w/ an act of the legislature.
As the rules of IL change, so does the local law adopt. The doctrine of transformation on the
other hand, states that the rules of IL are not to be considered part of English (municipal) law
unless adopted by our laws through the legislature or judicial decisions, or through long
established custom. It must receive the assent of the nation sought to be bound by it, otherwise,
this would usurp the powers of legislature.

Insofar as England is concerned, the incorporation doctrine applies. The courts have
applied IL as it changes w/o waiting for aid from any Act of Parliament. Examples are the
international laws on slavery. The same is the trend in many other countries. IL knows no
stare decisis. If the court is not satisfied that a ruling 30 years ago based on IL still
prevails, it will overturn it in accordance w/ the new rules as they evolve.

- Art 2. Sec. 2 - does not refer to treateis but cutsomary international law whether
codified or not in a treaty and other general principles
- doctrine of incorporation (automatic E: when in conflict to the domestic system - know
how to resolve this)

COMMENT ON THE INCORPORATION CLAUSE

When the Constitution, under Article 2 Section 2, provides that “the state adopts the generally
accepted principles of international law as part of the law of the land,” it does not refer to
treaties, but rather to international customary law and other general principles of law.

DD: According to the Llamzon Article, the principle of pacta sunt servanda is deemed adopted
by virtue of the incorporation clause – thus treaty obligations are binding. But as pointed out, it is
pacta sunt servanda as a general international custom that is automatically incorporated, not the
provisions of a treaty directly, albeit the fact that the effect is the same.

General principles
- principles of trust, civil law, equity, liability, unjust enrichment, pacta sund servanta,
estoppel, prescription, etc.

Application of international law by domestic courts


- Filartiga ?? case
- Gentech?? case
-Tanada case

Tañada v. Angara 272 SCRA 18


FACTS: Following the devastation of World War II. The International Trade Organization, together with the
World Bank and the International Monetary Fund, were tasked to hasten worldwide recovery. However, the ITO
did not take off and what was left was the 1947 General Agreement on Tariffs and Trade. Fifty years after, the
WTO came into existence on January 1, 1995, upon the conclusion of the Marrakesh Agreement, promising
liberalization of trade.
The Philippines joined as a founding member, as articulated by President Fidel Ramos in 2 letters to the Senate,
believing that the country will benefit from its system of dispute settlement.
DTI Secretary Navarro who signed the agreement in Marrakesh, Morocco, as representative of the Republic. It
was ratified by FVR. Such ratification included the WTO Agreement and the annexes of the agreement and other
ministerial declarations and decisions.
Petitioners Wigberto Tañada and Anna Dominique Coseteng, both Senators, questioned such act, arguing that
the WTO requires the Philippines to place nationals and products of member-countries on the same footing as
Filipinos and local products and that the WTO intrudes, limits and/or impairs the constitutional powers of both
Congress and the Supreme Court. They also assailed the WTO Agreement for violating the mandate of the 1987
Constitution to develop a self-reliant and independent national economy effectively controlled by Filipinos.
Issues & Held:
W/N the Court has jurisdiction over the controversy – YES 
As the petition alleges grave abuse of discretion
and as there is no other plain, speedy or adequate remedy in the ordinary course of law, we have no hesitation at
all in holding that this petition should be given due course. However, the SC will not review the wisdom of the
decision or the merits of trade liberalization, but only whether there was grave abuse of discretion in ratifying
the Agreement. 

W/N the Court violates the mandate of the 1987 Constitution to develop a self-reliant and independent
national economy effectively controlled by Filipinos – NO
The provisions on national economy are not
self-executory and merely set out general policy. These provisions should not be read in 

isolation, but together with Sec. 1 and 13 of Art. XII, wherein the State shall promote industrialization and create
competitive industries while protecting enterprises from unfair competition and trade practices. While the
Constitution mandates a bias in favor of Filipino industry, it recognizes the need for business exchange with the
rest of the world on the bases of equality and reciprocity. The Constitution does not intend to pursue an
isolationist policy or mendicancy.
Furthermore, the WTO has built-in advantages and concessions to protect weak and developing economies,
which comprise a majority of its members. The decision to embark on economic liberalization is a political
question
The WTO reliance on trade without discrimination cannot be struck down as unconstitutional as in fact they are
rules of equality and reciprocity that apply to all members. The fundamental law encourages industries that are
competitive in both domestic and foreign markets instead of a sheltered domestic trade environment.
Furthermore, the Constitution favors consumers and general welfare and not industries or business, which
explains its thrust for competition.
3. W/N the WTO Agreement infringes on the powers of Congress – NO
The WTO Agreement provides that each Member shall ensure the conformity of its laws, regulations and
administrative procedures with its obligations. Petitioners maintain that this undertaking unduly limits, restricts
and impairs Philippine sovereignty, specifically the legislative power because Congress cannot pass laws
favoring Philippine industries.
On the one hand, sovereignty is limited by international law and
treaties voluntarily entered into by the Philippines as a family of nations. States surrender some aspects of their
power in exchange of greater benefits under a treaty. By the doctrine of incorporation, the country is bound by
generally accepted principles of international law, which are considered to be automatically part of our own
laws. The Philippines follows the fundamental doctrine of pacta sunt servanda, or that international agreements
must be performed in good faith, as treaties are legally binding obligations.
An example of this is how signing the UN charter limits Philippine sovereignty by assisting the UN in defraying
administrative costs and in its peacekeeping operations. By signing international agreements, Philippines has
effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain and police power.
The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other
contracting states in granting the same privileges and immunities.
W/N the WTO Agreement infringes on judicial power – NO 
Petitioners aver that the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS) intrudes on the power of the Supreme Court to
promulgate rules concerning pleading, practice and procedures because it has its own burden of proof principle.
However, this is untenable because under local patent laws, there is a similar presumption in cases of patent
infringement. It states that identity or substantial identity with the patented design or utility model shall
constitute evidence of copying. 
By and large, the arguments adduced in connection with our disposition of the
third issue -- derogation of legislative power - will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any actually exists. So too, since the Philippine is a
signatory to most international conventions on patents, trademarks and copyrights, the adjustment in legislation
and rules of procedure will not be substantial. 

W/N the Senate concurrence is defective and insufficient because concurrence in only the WTO
agreement rejects the Final Act, which was signed by Sec. Navarro – NO 
The final act only winds up the
proceedings. It is not the treaty itself. The assailed Senate Resolution expressed concurrence of what the Final
Act summarizes, which is the WTO Agreement itself. The Ministerial Declarations and Decisions were deemed
adopted without need for ratification. They were approved by the ministers by virtue of Article XXV: 1 of GATT
which provides that representatives of the members can meet to give effect to those provisions of this
Agreement which invoke joint action, and generally with a view to facilitating the operation and furthering the
objectives of this Agreement. 


- Art 2. Sec. 2 - does not refer to treateis but cutsomary international law whether
codified or not in a treaty and other general principles
- doctrine of incorporation (automatic E: when in conflict to the domestic system - know
how to resolve this)
-doctrine of transformation (must be adopted first see milk code)

SEE YORI FOR CUSTOMS

OTHERS
PRELIMINARY TOPICS; SOURCES OF INTERNATIONAL LAW WRITING AND OTHER SOURCES
Harris:
• Judicial decision
International decisions DO NOT MAKE CASE LAW.
• Art. 59 of the ICJ Statute provides that “the decision of the Court has no binding
force except between the parties and in respect of that particular case. International law follows civil law tradition.
BUT, these decisions play a large part in the development of international law.
International courts are not mechanical records of law. They do not make law. They are also not bound by their
previous decision as to the law which they apply.
• But courts still refer to past decisions because of the persuasiveness on the intrinsic merits.
• Writers and other sources
-Teachings of the most highly qualified publicists are assigned the same status as judicial
decisions

• It’s difficult to rely on teaching of the most highly qualified publicists because 
they like to
contradict each other. Also, writers reflect their national legal tradition 
and technique rather
any national political viewpoint. 

Role of writers:
analyzes facts and opinions and in drawing conclusions on binding customary rules and on
trends of their evolution 

writers influence evolution of international law 

Legal Status of Easter Greenland Case 

• The Ihlen Declaration, which stated that the Norwegian government will help facilitate the
transfer of sovereignty over Greenland, is a valid sources of obligation 

Nuclear test cases (unilateral acts as another source of law)
France publicly announced that it will no longer hold any further tests in the

atmosphere in the South Pacific. 

Declarations made by way of unilateral acts, concerning legal or factual 
situations, may
have the effect of creating legal obligations. When it is the intention of the State making
the declaration that is should become bound according to its terms, that intention
confers on the declaration the character of a legal undertaking, the State being legally
required to follow a certain course of conduct consistent with the declaration. 


SOFT LAW
• Soft law? 


-Consists of written instruments that spell out rules of conduct that are not intended to
be legally binding
-not subject to the law of treaties 

-do not generate opinio juris required for them to be state practice contributing to

custom 

-Cannot be enforced in courts 

ex: Helsinki Final Act 1975, Bonn Declaration on International Terrorism 1978 

Instruments that clearly have an impact on international relations • may later harden
(hehe) into custom
• or become the basis of a treaty 

-a device to overcome a deadlock in relations between states pursuing conflicting
ideological and/or economic claims 


CONTINUING DEVELOPMENT
• The International Law Commission was given the


function of promoting the

PROGRESSIVE DEVELOPMENT and CODIFICATION of international law. • Progressive


development

• the preparation of draft conventions on subjects which have not yet been regulated or
in regard to which the law has not yet been sufficiently developed in the practice of
States

• Codification
• the more precise formulation and systematization of rules of


international law in fields where there already has been extensive State practice,
precedent and doctrine.


• What is this commission currently busy with?

• subsequent agreements and subsequent practice in relation to the interpretation of


treaties

• immunity of state officials from foreign criminal jurisdiction • protection of persons in


the event of disasters
• identification of customary international law
• provisional
application of treaties

• protection of the environment in relation to armed conflict • obligation to extradite or


prosecute
• the most favored national clause
• expulsion of aliens

• protection of the atmosphere • crimes against humanity