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MIDTERMS 2019 REVIEWER [SPECIAL ISSUES ON INTERNATIONAL LAW | SECOND SEMESTER | A.Y. 2018-2019] 
UMAK LAW | JD2 | [Macabocsit, Nelson C. | NEL Notes]

I. CONCEPTS   (d) If law as rules requires the application of outdated


A. Definition of International Law (IL)  and inappropriate norms, law as a process
1. International Law a body of legal principles, norms encourages interpretation and choice that is more
and processes which regulates the relations of States compatible with the values we seek and objectives we
and other international persons, and governs their seek to achieve.
conduct affecting the interests of the international
community as a whole. [Section 101, American (e) In viewing Int’l Law as a process, there are still
(Third) Restatement of Foreign Relations Law of the tools for authoritative decision-making on the problem
United States] notwithstanding the absence of a precise rule which
must be applied. (by use of analogy, by reference to
2. (ICJ President Rosalyn Higgins)  | Higgins: Int’l law context, by analysis of alternative consequences)
is not rules. It is a normative system which makes  
possible that degree of order if society is to maximize Take  Note:  Law as a process does not entail a
the common good. rejection of that core of predictability that is essential
if law is to perform its functions in society.
(a) IL is the entire decision-making process and not  
just the reference to the trend of past decisions which (f) Two Apparent points:  
are termed “rules”. 1. The role of law is to provide an operational system
for securing desired values (security, freedom, etc)
**If it were rules, then it would not be able to 2. Int’l is no different from domestic law  
contribute to and cope with a changing political world.  
Relying merely on rules, when the context to which (g) Basis of the Binding Nature of International 
they were articulated has changed, ensures that Int’l Law (Higgins) 
Law will not be able to contribute to today’s problems 1. Natural law  
and it will be disobeyed for that reason. 2.  Consent  – based on the sovereignty of states,
which in turn emphasizes their freedom to act
- When the set of rules no longer apply, there may  unilaterally save to the extent they agreed upon to be
be the emergence of a new rule or norm constrained
3. Reciprocity – as notions of justice were replaced
(b) Int’l law is decision-making by authorized decision by consent, so consent has gradually been replaced
makers who are not simply finding the rule and by consensus which has come about because states
applying it. The determination of what is the relevant perceive a reciprocal advantage in cautioning
rule is part of the decision-maker’s functions. The self-restraint.
judge does not find rules but makes choices. When
these authorized decision-makers make decisions, (h) To whom does Int’l Law apply?  
what occurs is legal decision making. - states in their relationship with each other
- int’l organization
(c) Policy considerations, different from rules, are  - in some circumstances directly to individuals (war
an integral part of the decision-making process  crimes, rights, etc)
called  Int’l  Law.  Policy factors are dealt with
systematically (properly considered and weighed) and Notes: Analyze IL as a process rather than a set of
openly (open to public scrutiny and discussion) . rules. When the authorized persons or organs make
decisions, what occurs is a legal decision-making
- Law is not in a vacuum. Decision makers and  process. IL is a continuing process of arriving at
policy makers, while considering rules, will also  authoritative decisions. This view rejects the notion of
consider other factors, and that’s a fact.   law as merely the impartial application of rules.
   

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3. Magallona Annotations:   -Function of IL: to insure peace and security, so that


a. Has there been a judicial pronouncement on the  this system of mutual relations is maintained in terms
general nature of international law?   of equality, good faith, and balance of interests.
Lotus Case: “International law governs relations
between states. The rules of law binding upon states d. Why do States observe or comply with their 
therefore emanate from their own free will as obligations under IL?  
expressed in conventions or by usages generally -There prevails in the international community a
accepted as expressing principles of law and “culture of compliance” [Louis Henkin]
established in order to regulate the relations between -States recognize that stability, law and order,
those co-existing independent communities or with a reliability …(enlightened self-interest in compliance)
view to the achievement of common aims.”
e. Generally, how do we view the relation between 
b.  How  is  the  concept  of  the  “international  state sovereignty and international law?
community  as  a  whole”  manifested  in  -FALSE: International law only curtails or limits the
contemporary IL?   sovereignty of States
Through the codification of jus  cogens  or -As a method of creating norms, treaties provide not
peremptory norms as part of positive international only duties but rights as well; not only restrictions but
law; thus, Art. 53 of the Vienna Convention on the law also power or authority
of Treaties defines the same as, “a norm accepted
and recognized by the international community of f.  If  state sovereignty is said to be “absolute,” 
States as a whole, as a norm from which no how  is  it  related  to the independence of other 
derogation is permitted and which can be modified States and to their equality on the international 
only be a subsequent norm of general international plane?  
law having the same character.” -From national legal order standpoint: state
sovereignty is the supreme legal authority in relation
Barcelona Traction Case – distinction between an to the subjects within its territorial domain >>>
obligation of a State with another State, and “ABSOLUTE”
obligations of a State towards the international -BUT, in international sphere: sovereignty realizes
community as a whole itself in the existence of a large number of
  sovereignties co-existence of sovereignties under
-“obligations of a State towards the international conditions of independence and equality
community as a whole”: “By their very nature, … are -Sovereignty of one ends where another’s begins.
the concern of all States. In view of the importance of
the rights involved, all states can be held to have a g.  How  then  is  state  sovereignty  defined  in 
legal interest in their protection; they are obligations  international law?  
ERGA OMNES.” It refers to the right to exercise in a definite portion of
the globe the functions of a State to the exclusion of
c. Why do States take interest in the creation or  any other state [Island of Las Palmas Case]
recognizing norms of international law?    
-IL is a means by which States pursue and develop h. Oppenheim, International Law, Vol. 1, pp. 4- 23 
mutual exchanges of economic, social, political, and i.Conception of the Law of Nations
other interests or advantages, or resolve disputes -Law of Nations or International Law is the body of
between them by peaceful means. customary and treaty rules which are considered
-Legal norms are established to maintain and stabilize legally binding by States in their intercourse with each
inter-state relations other.

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-Universal International Law is such part of 3.  There  must  be  a  common  consent  of  that 
International Law as is binding upon ALL States, community that these rules shall be enforced by 
without exception. Particular International Law is external power. Examples of this so-called external
binding on 2 or a few States only while General power include:
International Law are binding upon a great many a. Self-help and intervention on the part of other
States, including the leading States. States which sympathize with the wronged one.
b. Subject to certain conditions, war is the ultimate
ii. Denial of the Legal Force of the Law of Nations instrument for defending violated legal rights vital to
Austin and his followers defined law as a body of the existence of States.
rules for human conduct set and enforced by a c. The Charter provides for a system of sanctions for
sovereign political authority. Following this definition, repressing the violation of its principal obligation.
IL cannot be considered law because there is not a
sovereign political authority above the sovereign iv. Practice and the Legal Nature of the Law of
States which could enforce such rules. Nations
States are of the opinion that they are legally and
A better understanding would be achieved if we morally bound by the Law of Nations. They do not
recognize that rules of law must be enforced by deny that there is a law between themselves. The
external power. It should however be understood that States, in breaking the Law of Nations, never deny its
for the existence of law, neither a law-giving authority existence, but recognize its existence through the
nor courts of justice are essential. It  is  the  endeavor to interpret the law of Nations as justifying
community  itself,  which  decides  a  question  of  their conduct.
law. The existence of legislature is only necessitated
by the expansion of primitive communities. In more v. Common Consent as the Basis of International Law
modern States, the legislature makes law, which Common consent:  the express or tacit consent of
courts of justice administer. However, this power still such an overwhelming majority of the members that
comes from the common consent of the community. those who dissent are of no importance as compared
with the community viewed as an entity in
iii. What, then, are the essential conditions of Law? contradistinction to the wills of its single members.
Are these present in International Law?
1. There must be a community. A community is a In International Law, common consent manifested
body of a number of individuals more or less bound through customs, then mutual usage of certain rules,
together through such common interests as create a and finally to the development of a systematized body
constant and manifold intercourse between single of rules which commended themselves so much to
individuals. the needs and wants of the time that they became the
basis of the subsequent development (Hugo Grotius’
This power unifying factor, their common interests work, De Jure Belli ac Pacis, librii iii).
(science, art, agriculture, industry, trade, etc), create
an international community vulnerable only to Even if it is not necessary to prove for every single
occasional threats due to economic nationalism, rule of International Law that every single member of
political intolerance, and the pursuit of self-sufficiency the international community has consented to it, still,
on the part of sovereign States. no State can declare that it will in future no longer 
submit to a certain recognized rule of the Law of 
2.  There  must  be  a  body  of  rules  for  human  Law of Nations. The body of this rules of law can be
conduct  within  that  community.  An undeniable altered by common consent only, not by a unilateral
existence both of customary and written laws is seen declaration on the part of one state.
in International Law.

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vi. States as the Normal Subjects of the Law of If  so, does  this  challenge  the  validity  of  the 
Nations doctrine  that  consent  may  be  a  basis  of legal 
obligation?  
If IL is based on common consent, what then are What are the ways by which a state comes under 
the normal subjects of the Law of Nations? the  obligations  of  international  law, aside from 
Primarily, IL regulates the conduct of States but we  expressly giving its consent to be bound by it?  
must  not  forget  that  the  conduct  actually 
regulated is the conduct of human beings acting  1. A new state becomes subject to International 
as  organs  of  the  State. Individuals and other Law as a matter of course, without their consent 
persons may then be endowed directly with being  either asked or given. This challenges the
international rights and duties and constitute them to consent theory because these States may recognize
that extent, subjects of International Law. International Law’s obligatory force but does not
  automatically mean that they have consented to it.
Illustrations:
1. Jurisdiction of the Courts of Danzig   2.  Hegelian  doctrine  of  self-limitation  and 
States may expressly grant to individuals direct rights Jellinek’s theory of self-limitation assume that a 
by treaty; such rights may validly exist and be state may create law for itself both in internal and 
enforceable without having been previously external affairs. By this faculty, the state is able to
incorporated in municipal law. subject itself, when it thinks fit, to its own private law,
to recognize the personality of foreign states, and to
2. Reparation for Injuries Suffered in the Service  bind its own will by entering into the international
of the United Nations   system.
Entities other than States may be subjects of
International Law. For the subjects of law in any legal 3.  States  feel  a  sense  of  obligation,  from  the 
system are not necessarily identical in their nature or feeling that a certain course of conduct is legally 
in the extent of their rights, and their nature depends incumbent  upon  itself,  irrespective  of  its  own 
upon the needs of the community. wishes or interests.  
 
NOTE: members of the international community are The author points out that the Court may derive the
equal to each other as subjects of International Law. law by which states will be bound from
nonconsensual sources. Sometimes, there is a need
i. Brierly, The Basis of Obligation in International  to find the relevant rule by a process of judicial
Law, pp. 9-18   reasoning rather than relying on the consent of the
-Many accept the doctrine that consent may be a  party litigant- States alone. In fact, Article 38 of the
basis of legal obligation. Sir John Salmond writes: Statute of the Permanent Court of International
“The law of nations is essentially a species of Justice directs  the  Court  to  apply  international
conventional law- that it has its source in international conventions, international custom, as evidence of a
agreement- that it consists of the rules which general practice as accepted as law, the general
sovereign states have agreed to observe in their principles of law recognized by civilized nations and
dealings with each other.” on certain conditions, judicial decisions and the
teachings of the most highly qualified publicists, as 
i. However, what if a state refuses to consent to be subsidiary means for the determination of rules of 
under the obligation of a previously entered into law.  
treaty?
Without its consent, is it still bound?    
 
 

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j. pp. 46-46   2. Do they differ in the form of sanctions? Does 


The State is an institution that claims the unique International  Law  provide  for  sanctions,  in  the 
characteristic of having the exclusive control of the first  place?  No marked difference in sanctions
use of force. However, this feature is incapable of because International Law, too, has sanctions. But
being the explanation of the binding force of law (as there is very little temptation to violate International
usually applied in international law). The theory that Law, because it's yoke lies easily on the states and
law is binding because it is the word of a sovereign also because to violate it habitually would invite
(usually  applied  to the law of the state) is also reprisals and would not be in the interest of any state.
insufficient  to explain the binding force of law,
and is in fact a widely rejected theory.   Conclusion: The real difference between IL and state
law in  respect  of  enforcement  lies not in any
i. Does international law differ from the law of the  principle but in organization.
State?   1.  State  law  interferes  with  the  individual’s 
1. Do they concern different subjects? Not really. freedom of action that in the course of centuries 
Primarily, IL involves States while the law of the State an  organized  system  for  the  coercion  of  the 
involves human beings. This distinction is, however, recalcitrant  has  been  built  up.  In IL where the
artificial. sense of a common interest in the law being enforced
has been weak and where the need for systematic
M. Saleilles presents a true system, which he calls ‘la  enforcement is less in proportion as the temptation to
theorie realiste.’ Both the state and the individuals of violate the law is weaker. (hindi extensive ang
whom it consists are and remain equally real entities, institutionalization)
we may even say that they are equally real ‘persons’,
provided that we can keep the juridical sense of that 2. International Law has less adequate legislative 
word uncontaminated by any of its non-juridical and judicial machinery.  
associations.
3. Power in the international sphere is still largely 
There are 3 truths which support the system unregulated by law.
presented by Saleilles:
1. that individuals who form an institution, whether it k. Tunkin, International Law in the International 
be the state or any other institution, do not disappear System, 147 Recueil des Cours 78-84 (1975)  
from the scene i. Is there a system of international law?  
-Tunkin says yes. He rejects the German doctrine that
2. an institution is a real and not a fictitious unity, and a system of law requires the existence of a supreme
by juridical personality the law recognizes, but does authority that creates the system. He says this
not create, this unity doctrine is completely divorced from reality.

3. this unity which the institution has given to the -A system (IL) is a reality in itself. It is not something
individuals does not embrace the whole personality of imposed upon a social reality from outside. IL is a
each of them. unit, an aggregate of legal norms in interaction. It is a
specific component of the intl system which must not
Conclusion: IL and the law of the state do not, in be confused with other components of the system.
reality, involve different subjects. The international
juridical community has for its unit of membership the ii. The unified system of contemporary IL  
state, but it is not true that the unit is the state in The traditional division of IL into law of peace & law of
abstraction from its individual members; it is the state war has been replaced by a new division of
as expressing their unity. contemporary IL into

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(1) the law of co-existence – governing diplomatic 2. Particular norms provide for the proper functioning
interstate relations and of general norms. In most instances, GL depends
(2) the law of cooperation – governing pursuit of upon creation by States concerned of particular
common human interests (Friedmann). norms specifying rights & obligations based on
  general intl law.
This transformation resulted in:  
1. greater unity in the intl level, as manifested in the ff. Article 41 AGREEMENTS TO MODIFY
features of contemporary IL: MULTILATERAL TREATIES BETWEEN CERTAIN
- no more difference in status of States OF THE PARTIES ONLY
- no more division of IL into law of peace & law of war 1. Two or more of the parties to a multilateral treaty
- growing number of principles of jus cogens may conclude an agreement to modify the treaty as
contributing to unity; and at the same time… between themselves alone if:
(a) The possibility of such a modification is provided
2. greater diversity on a regional level. for by the treaty; or
(b) The modification in question is not prohibited by
iii. Universalism & Regionalism in the system of  the treaty and:
IL. There are two levels of IL: (i) Does not affect the enjoyment by the other parties
(1) universal & of their rights under the treaty or the performance of
(2) regional. their obligations;
(ii) Does not relate to a provision, derogation from
Also, IL comprises of:   which is incompatible with the effective execution of
(1) General IL & the object and purpose of the treaty as a whole.
(2) Particular IL.
2. Unless in a case falling under paragraph l(a) the
treaty otherwise provides, the parties in question shall
GIL  PIL 
notify the other parties of their intention to conclude
results from the results from the the agreement and of the modification to the treaty for
coordination of the wills co-ordination of two or which it provides.
of all or almost all some States.  
States  l.  Brownlie,  The  Reality  and  Efficacy  of 
International Law, 52 BYIL 1 (1981) 
Norms of GIL are norms of PIL can be i. The reality of IL  
created only by States. created by other The reality of IL cannot be denied on the excuse that
subjects of international it is imperfect. The actual use by governments of IL as
law. part of the normal process of decision-making only
proves that IL is a reality.
They have the same legal foundation –  the 
co-ordination of the wills of States – since even IL confronts inescapable features of the political
in GIL there is no central legislative authority both landscape. [Like municipal law] Rules of IL are
are considered as belonging to corpus juris essentially principles of self-limitation, addressing the
gentium. very agents who should apply the rules. They are
immanent and internal.
iv. Role of particular norms in international law? 
1. Particular norms solve particular problems bec. ii. The efficacy of IL  
general norms are not sufficient to properly govern Brownlie looks at the efficacy of IL vis-à-vis the
relations bet. individual States performance of national legal systems. Eccentrics

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appear in IL just as much as individual criminals exist


in NLS. Compared to NLS, IL is not doing so bad. -When the law is seen to be “ineffective”, the cause is
  not “the law” but  the  absence  of  organization, 
(a) Why does IL appear to be ineffective?   political will, sufficient personnel or funding, and 
1. IL depends upon the application of standards within so forth.
the natl legal & admin systems. Thus, the inefficacy of
IL is only a consequence of the relative inefficacy of Law, whether national or international, is  not  a 
domestic law in enforcing IL standards. The biggest source of alibis for politicians and administrators 
obstacle to treaty administration is the inability of natl  
administrations to cope with even minimal burdens m.  Changing  Structure  and  Dimension  of 
under their intl obligations. International Law   | Magallona, “The Concept of Jus
Cogens in the Vienna Convention on the Law of
2. There is constant inflation (exaggeration) of the Treaties,” in International Issues in Perspective
incidence of illegality in international life. People fail to (1996)
acknowledge that many cases of illegal behavior on  
the part of States are really only ultra vires acts of a i.  JUS  COGENS  (JC)  [a  peremptory  norm  of 
public body or minister. [It is not the State’s fault]. general international law] –
a. a norm accepted and recognized by the
iii. On Hart   international community of States
Hart gives two specific qualities of the concept of law: b. as a whole
1. existence  of  primary  laws (concerning human c. as a norm
actions) & secondary  laws  (conferring powers to d. from which no derogation is permitted and
make and change primary rules); & e. which can be modified only
f. by a subsequent norm of general
2. existence of rules of recognition (provides the international law
system with a criteria for validity) g. having the same character.

iv. Brownlie criticizes Hart:   -A treaty is void if, at the time of its conclusion, it
-Hart puts misplaced emphasis on secondary rules conflicts with a peremptory  norm  of  general 
and the compulsory jurisdiction of courts & legislature international law.
as normal marks of a legal system.
-[Article 53. TREATIES CONFLICTING WITH A
-Secondary rules do not play that much of a decisive PEREMPTORY NORM OF GENERAL
role in maintaining the more basic forms of legality in INTERNATIONAL LAW ("JUS COGENS")]
municipal systems. The operation of secondary rules
may break down (as in the case of civil strife) without - If a new peremptory norm of general international
affecting the operation of the primary rules to any law emerges, any existing treaty which is in conflict
great extent. with that norm becomes void and terminates. [Article
64. EMERGENCE OF A NEW PEREMPTORY NORM
-Thus, Hart is wrong in giving a low status to PIL OF GENERAL INTERNATIONAL LAW ("JUS
among other systems on the basis of the absence of COGENS")]
secondary rules.
-[a-g] in Art 53 are elements of JC which projects the
-POINT BEING: Whether, in a given situation, the law consensual nature of such norm. However, the
is ultimately “effective” is a question of taste. In other consensual nature should not lead to the formalism
words, it  is  a  matter  of  political  and  moral  that character of JC finds explanation in mere
evaluation.   expression of the State’s consent. It is the particular

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nature of subject matter with which it deals with that a. The specific function of JC norms is to limit the
may give it JC character. freedom of the parties to a treaty in determining the
content of their agreement. Any treaty provision that
-JC is either customary or conventional rule. It is contravenes a JC is either declared void under Art 53
also either universal or so recognized by a great  or becomes void and terminates under Art 64.
majority of States.
b. Under Art 45 of the Convention, a State may lose
-The words “as a whole” in Art 53 precludes the the right to invoke a ground for invalidating,
possibility that an objection on any 1 State may terminating, withdrawing or suspending the operation
operate as a veto to the characterization of norm as of a treaty through confirmation or acquiescence.
JC. Universal consent or unanimity is not intended as
a basis for the determination of JC norm. c. However, Art 45 does not cover Art 53 and 64 w/c
  points to the conclusion that the invalidity of a treaty
ii.  JUS  DISPOSITIVUM  – norms which can be arising from the violation of JC norms cannot be cured
derogated by private contracts. by confirmation or acquiescence of the parties. This
serves to reinforce the objective of character of JC
-The concept of JC is identified with the notion of norms as criterion of Illegality and to project their
ordere public in municipal law, which is the aggregate importance over the narrow individual interests of the
of fundamental norms on public policy and good States.
morals which unify particular rules and principles in
the legal order. iv. Operation of Convention Rules on JC  
a. A treaty in conflict with JC norm is invalid in Int’l
-It is argued that JC could not yet mature in the field Law but it can only be invalidated on that ground w/in
of Int’l Law because this concept presupposes the the framework of the VC.
existence of an effective de jure order which is
envisaged in the model of the municipal legal order. b. Limitations: Invoked only by parties to the VC

-The emergence of JC is defined by the condition that v. Follow procedural requirement of VC  
in the international legal order, the subjects (States) a. Procedure:  
of the law are themselves the creators of the law on 1. Written notification by contesting party to other
the basis of legal equality. party stating grounds for invalidation, termination, etc,
measures proposed to be taken and reasons therefor
-The process of identifying a general norm as JC is 2. Transmitted directly to the other party or depositary
definitely a consensual mechanism. It is determined 3. 3 months after receipt of notice, if no raised
by the very real and concrete interests of States and objections, contesting party can effectuate the
therefore springs from the necessity internal to the invalidation/termination of treaty by a declaration to
system of their inter-relationships. that effect in an instrument communicated to other
parties
-Example of JC norms:   4. If objections were raised, settle dispute through UN
Nuremberg Principles, means (negotiation, mediation, other peaceful
human rights, means); resort to Int’l Court of Justice in case of
Sovereign equality of States, failure to reach solution after 12 mos.
nonintervention,
right of self-determination vi. Non-retroactivity of Convention Rules on JC  
a. Art  28:  establishes non-retroactive operation of
iii. Function of Conventional Rules on JC   treaties in general and provides for flexibility for the

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parties to stipulate expressly the retroactive effects of Notes:  


treaties. PACTA  SUNT  SERVANDA:  States or other
international persons are bound by treaties which
b. Treaties concluded after the entry into the force of have been regularly concluded and have entered into
convention, which are in conflict with JC, are void force and they must be carried out in good faith. The
under Art 53 or become void & terminate under Art basis of the obligatory character of conventional rules
64. or what is sometimes called sanctity of treaties is not
clear.
c. Treaties concluded before the Convention’s entry
into force are saved from the operation of Art 53 even n. Baxter, International Law on Her Infinite Variety, 
if they conflict with JC norm. But under Art 64, they 29 Intl & Comp. LQ 549 (1980)  
are affected by the invalidating force of the ‘new” JC i. Principles of IL have a real existence and create
norm when the norm is given binding force as such by obligations for states and individuals, even though
the entry into the force of the Convention. they may not be enforced by sanctions.

vii.  The  points  of  references  for  operation  of  ii. Baxter’s radical assertion to be defended: That
Non-retroactivity rule:   legal norms occupy a place in IL, even though they do
Art 53: the date the Convention is enters into force. not create rights or duties.
Art 64: the time of emergence of the JC norm.
a. A great majority of norms which are laid down in
viii. 2 categories of JC:   international agreements are susceptible of
1. JC existing on the date of the VC’s entry into force enforcement through mechanisms, including resort to
2. general norms becoming JC sometime later after international tribunals and national courts, which
VC has come into force ensure respect for these obligations. But there are
norms of various degrees of cogency, persuasiveness
ix. Modification of JC   and consensus which are incorporated in agreements
a. JC is not immutable. It is subject to change in between states, but do not create rights and duties.
keeping with the societal developments of global
scale. But only a JC norm can supercede or partially iii.  International  Agreement:  all those norms of
change an existing peremptory norm. conduct which states or persons acting on behalf of
states have subscribed to, without regard to their
b. The process of modification follows the same being binding, or enforceable, or subject to an
mechanism as its formation which is on the same obligation of performance in good faith.
consensual basis as any other norm of general int’l
law. a. “SOFT / WEAK” Law – recognized as peculiar
e.g. treaties where states enter into an allegiance,
x. Conclusion   agree to coordinate military action, declare
a. One of the most significant features of progressive neutrality of an area.
development in contemporary IL is that the  
competence of States in treaty-making has ceased to 1. “Political Treaties” – There is an awareness that
be unlimited. The introduction of JV in VC can serve these agreements are vulnerable to the operation of
as transformative mechanism for discarding rebus sic stantibus in the sense of established
out-moded rules in the old IL and for replacing them boundaries / status of territory. If a state refuses to
with progressive principles. come to the aid of another, nothing can force it to.

  -The Vienna Convention does not refer to “Political


  Treaties” because it would add complexity and it

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would have supplied a basis from escaping from treaties in order to give effect to the principal
treaty obligations which is susceptible to abuse. treaty

-But these “Political Treaties” are nevertheless kept (c.) Provisions which are Hortatory, calling for
alive by perceptions of mutual advantage and by cooperation by states to achieve certain
political and economic force (so long as the states purposes. In the absence of institutional
concerned see it to be in their natural interest to machinery, a party’s refusal to follow the
concert their policies.) recommendations / exhortations of the treaty
cannot be met with any measures of
2. Other treaties regarding national security – the compulsion.
force making for compliance is that violation of c.  Executive  Agreements  –  (difficult to fit in the
agreement may being the whole structure tumbling existing structure) after the Vietnam War, US
down (agreements where easy release is available). Congress found out that the President made
commitments which were not submitted to the Senate
a. Nuclear Test Ban Treaty (1963) – violation of the for approval [outcome was the enactment of
treaty, justify it in withdrawing from the treaty. The legislation which requires the Department of State to
right of denunciation is the threat that holds the transmit the test of any international agreement (in
parties to their obligation. writing), other than a treaty,] to Congress within 60
  days.
b. Geneva Protocol of 1925 for the Prohibition of  (a) The international significance of the
the  Use  in  War  of  Asphyxiating  Poisonous  or  agreements which were brought to enlighten
Other  Gases,  and  of  Biological  Methods  of  is that there must be a vast mass of
Warfare  –  reserve the right to employ chemical agreements, communications, and
warfare against the one who has violated, in effect correspondence between governments and
brings the Protocol to an end. its officials to cooperate on some scientific
work, to give effect to a treaty, to exchange
-Numbers 1 and 2 do carry some measure of information, etc.
obligation, although they may not be enforceable in (b) Definition of treaty in Vienna Convention is
the strict legal sense. unclear on how far international dealings
should be codified (result in immense
-The following types of norms in international masses of paper)
agreements have the common characteristic of (c) It is probably fair to say that states have no
not creating legal obligations which are intention of “enforcing” the forces that make
susceptible of enforcement (soft law): for compliance – are manifold, but non-legal
(a.) Pacta de Contrabedo – a provision of the (d) These arrangements (executive agreements)
treaty which calls for negotiations looked to the are “soft law” – complied with in fact but
conclusion of further, more detailed not under the coercion of the principle of
agreements. These provisions cannot be pacta sunt servanda
enforced if the parties do not reach an (e) States do set up by agreement, machinery of
agreement (agreements cannot be forced upon cooperation and coordination which does not
them, cannot be compelled to negotiate), e.g have the complexity of international
Treaty of Rome – established European agreement (not treaties but they soften the
Economic Community clash of interests)
(f) The “soft” laws have been for about some
(b.) Norms of treaties which are non-self time. But in recent years states have
executing, requiring further, more detailed undertaken the preparation of instruments
which deliberately do not create legal

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obligations but which are intended to create international cooperation in solving international
pressures and to influence the conduct of problems of an economic character.”
states and to set the development of IL in
new courses (legal impact unclear) iv. General content of international economic law
(a) principles and norms of international economic
d.  Treaties  which  purport  to  lay  down  rules  law have matured and constitute a stage in the
governing the behavior of  States towards their  progressive development of:
nationals / towards aliens – sometimes ambiguous a. fundamental principles and purposes of the UN
and will do nothing to control the conduct of states b. specific orientation of the general principles of
unless fleshed out by the decrees of court or other law to the economic relations of states with
agencies. different levels of development
c. work of various organs and agencies of the UN
o.  Magallona,  “Towards  the  Consolidation  and  and of international conferences
Progressive  Development  of  the  Norms  of 
International  Economic  Law,”  in  Magallona,  (b) International Economic Law deals with the
International Law Issues in Perspective   regulation and coordination of economic activities
i. 2 major qualitative changes in the historical of states, particularly legal issues relating to
development of the international community of states: economic and technical assistance.
(a) Breakdown of medieval society
a. IL operated in a small circle of Christian Notes: In theory, consent may be withdrawn as fast
states in Western Europe as it was given but this results to instability of the legal
b. Peoples of Africa, Asia, and Latin America order as predicted by Brierly.
were objects of colonial exploitation
*Why  do  States  hesitate  in  withdrawing  its 
b) Emergence of independent states from the consent? Because it gave its consent pursuant to its
breakdown of the colonial system together with the desire to establish international rules that  create 
rise of the socialist community concrete  relations  to  advance  its  concrete 
economic, political, social, and financial interest 
ii. Crisis between old and the establishment of the as  the  subject  matter  of  the  mutual  exchange 
new international economic order between states.
a) Despite the collapse of the colonial system,
exploitation and dependency continued between *How  do  you  know  that  a  norm  is  a  norm  of 
old colonial powers and their former colonies. international  law?  Look at the norm-creating
process.
b) Establishment of new economic order is 2 categories of norms:
essential to the economic upliftment of the a. inter se: rules which govern the relations of
developing countries. states among themselves
b. erga omnes: rules which govern the relations
iii. Rationale and scope of international economic law of states in relation to the international
a) IL law must now reflect the basic interests and community
needs of the developing countries, which constitute
a majority of the international community *consensuality:  element which controls
b) Polarization of states on the basis of level of norm-creating process; when one speaks of consent,
development one pertains to normative consent, a process is
c) IL deals with the public-international aspect of involved, it is not a simple matter of saying yes
one of the principal purposes of the UN: “to achieve

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*What  are  the  legal  bases  of  international  (b) The extent of internal and external sovereignty
personality?   has been diminished by the interdependence of the
1. the moment a state is conferred statehood, it states (relative  sovereignty)  and the general
assumes international personality, primary subject of tendency of centralization (because of the foundation
law. of world organizations).
2. could also be created by state like the ILO (Intl
legal order) ii. GUIDING PRINCIPLES IN THE FORMATION OF 
3. conduct between the states may become the basis THE  POLITICAL  ORDER  IN  INTERNATIONAL 
of personality, i.e., when the action of the state SOCIETY  
becomes opposable to itself as in recognizing 1. Political Doctrines and Maxims  
passports and envoys, that state cannot anymore a. Balance of influence among superpowers
deny recognition b. Right to self-determination
c. Political doctrine based on political or
*The  Principle  of  Attribution:  for a stet to be geographical innovations
internationally responsible given the breach, the acts d. Doctrine of legitimacy/Doctrine of intervention
or omission must be attributable to the state, not its
peoples. 2.  7  Principles  of  friendly  relations  and 
co-operation between states  
*Persistent  Objection  Rule:  if a state persists in a. The principle that States shall refrain in their
opposing the application of a general norm to itself, at international relations from the threat or use of
the time when the norm was merely in the process of force against the territorial integrity or political
formation, then even when that norm consolidates or independence of any State, or in any other
becomes binding law at later time, that state which  manner inconsistent with the purposes of the
persisted in objecting is not bound. United Nations;
b. The principle that States shall settle their
But if persistent objection is only manifested the time international disputes by peaceful means in such
when that norm has already become binding law, a manner that international peace and security
then  no  amount  of  objection  will  make  it  not  and justice are not endangered;
bound.   c. The duty not to intervene in matters within the
domestic jurisdiction of any State, in accordance
p.  International  Law  and  the  International  with the Charter;
Community  d. The duty of States to co-operate with one
i. Mosler, International Society as a Legal another in accordance with the Charter;
Community, 140 Recueil des Cours 1 (1974) e. The principle of equal rights and
(a)  CONDITIONS  OF  EXISTENCE  OF  AN  INT’L  self-determination of peoples;
LEGAL  ORDER  .  IL existed only when the 2 f. The principle of sovereign equality of State; &
necessary elements existed: g. The principle that States shall fulfil in good
1)  factual  -  a certain number of independent faith the obligations assumed by them in
societies organized on a territorial basis exist side accordance with the Charter.
by side, &
2)  psychological  - a general conviction that all q. Schacter, “The UN legal order: An Overview” in 
these units are partners mutually bound by CC  Joyner  (ed.)  The  United  Nations  and 
reciprocal, generally applicable rules granting International Law (1997)  
rights, imposing obligations and distributing i. Structure of the UN Legal Order  
competencies. a. Ground floor: actions of states- including the
demands and goals of the governments and other

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organized groups in furtherance of their needs, procedure governing the conduct of principal organs
wishes, and expectations and the rights of members in those organs
b.  2nd  level:  activities of a legal character- the
formation and invoking of legal norms, and their 4.  Regulations  applicable  to  the military forces 
application to particular situations. engaged  in  peace-keeping  or  enforcement 
c. 3rd level: broad policy goals, aspirations, and activities: include rules of engagement, precepts of
ideals that influence governments and the other command and control, privileges and immunities
actors
iii. PRINCIPLES OF INTERPRETATION
ii. Law-making in the UN System 1. Principle of effectiveness: priority to achieving
a.Neither the United Nations nor any of its specialized the major purposes of the Organization overriding
agencies was conceived as a legislative body. They restrictive provisions of the Charter such that
were limited to recommendations aimed at interpretations that are ‘generally acceptable’ settle
coordinating the actions of their member states. The the issue
authority to impose mandatory rules was limited to the 2.  Interpretation  by  majority  votes  based  on 
internal administration of the organization in question. political  considerations:  problematic for many
states who fear that the integrity of the Charter may
b. However, most of these bodies have utilized their be impaired by political tendencies
recommendatory authority to achieve binding law - fear leads to the revived interest in the possibility of
where that served their aims and had the requisite utilizing the International Court to render advisory
political support. opinions on the interpretation of the Charter by
political organs o problematic because the IC has not
iii. Examples of Instrument of law-making in the UN been given review or appellate power to pass on
system: decisions of the political organs unless it is asked for
1. multilateral “norm-creating” treaty   an advisory opinion by the organ
- products of political process, usually marked by
conflicting interests and concerns over grants of iv. Compliance and enforcement:
power a.  Categories  of  the  Various  Compliance  and 
- all member states have a right to participate in the Enforcement Processes Used by UN Organs:  
negotiation and adoption process on the basis of 1. Reporting and supervision procedures in a 
sovereign equality particular treaty or code of conduct  
2.  resolutions  that  embody  declarations  of  - supervision includes the procedure for individual
principles  and  rules  of  international  law  or governmental complaints of violations such as
considered as authoritative evidence of binding  those brought under the optional protocols to the
international  law  on  the  following  grounds:  (a covenants
response to felt needs which must be addressed - includes fact-finding by an international authority
without the complicated and often, slow procedures
involved in treaty making) 2.  Facilitative  measures  taken  by  the  United 
a. as authentic interpretations of the UN charter Nations  to  assist  states  in  carrying  out 
agreed by all the parties obligations  imposed  by  law  or  by  specific 
b. as affirmations of recognized customary law decisions of the organs  
c. as expressions of general principles of law - armed peacekeeping forces to assist governments
accepted by states to comply with transborder truce and cease-fire
agreements, use of observers for national elections
3. Law governing the internal governance of the 
international  bodies  - includes the rules of 3. Direct penalty of expulsion from the Organization
or from taking part in some of the latter’s activities

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2.  Interpretive  resolutions  on  basic  Charter 


4. Nonmilitary enforcement action taken by the concerns:  adopted by near-unanimity or
Security Council under Article of Chapter 7 of the consensus
Charter (imposing economic embargoes extending In international economic law, there is the undertaking
to trade and financial relations on either a to give preferences to the less developed countries.
comprehensive or selective basis)
vi. What then are the basic postulates of international
5. Use of armed force law?
1. States are regarded as the principal actors in
6. Judicial enforcement limited in respect of binding creating and applying the law.
adjudication of cases in which the parties have 2. Independence and formal equality of States
accepted the Court’s jurisdiction 3. principles of territorial integrity and pacta sunt
  servanda
7. Self-help measures   4. Basic divide between the international and
a. reprisals: generally permitted if they do not domestic domains
involve the use of force and if they are directed to
obtaining redress for the wrong committed and vii. Characteristics of the UN system:
must not be disproportionate to the violations to 1. Decision-making in the UN are essentially political
which they respond. processes shaped by the conditions of
b. retorsion: legal WON responsive to a prior quasi-parliamentary procedures and the mandates of
illegal act. States are free to reduce trade, constituent instruments.
investment, or aid with another state, whether or 2. Substantive complexity of UN law-making and law
not the other state acted illegally. application: states are compelled to define their
national interest in relation to the collective interests
8. Public opinion (NGOs and civil society) of various groups of states and, ideally, in relation to
the common interest of the whole community of
v. Patterns and Politics of UN Law   states.
a. Two areas stand out: 3. relative transparency and linkages to nonstate
-human rights law & actors (experts, lobbyists, activists)
-the law relating to peace and security.
p.  Relation  of  International  Law  and  Municipal 
b. In human rights law, it has been observed that the Law  
economic criteria originally applied to development A. In General | Oppenheim, op. cit., pp. 35-47
have been supplemented with criteria of human 1. Dualistic View: International Law and Municipal
development that incorporate many of the basic Law are essentially different.
human rights, especially but not only those of an
INTERNATIONAL LAW  MUNICIPAL LAW 
economic, social, and cultural character.
As to Source 
c. In the law of peace and security, the stakes are the
highest. WON a United Nations Legal Order exists will custom grown up custom grown up within
be determined largely by the effectiveness of its among States and the boundaries of the
efforts to maintain peace and security. Several law-making treaties State concerned and
concepts have to be discussed in relation to the law of concluded by them statutes enacted by the
peace and security: lawgiving authority
1. Veto or principle of unanimity: embodied for
political reasons by the permanent members As to relations they Regulate 
primarily in their national interests

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1.  presumption  against  the  existence  of  a 


relations between between the individuals
conflict between ML and IL- it is improbable that a
States under the sway of the
State would intentionally enact a rule conflicting
State and the relations
with the Law of Nations
between the State and
2. In case of a gap between the 2 laws, it is
the individual
presumed that such privileges are tacitly granted.
Substance of their law  3. Even if a State may renounce IL endowed rights,
municipal courts ought to presume that their State
between sovereign law of a sovereign over has tacitly consented to make use of such rights.
States individuals subjected to
his sway q.  Fitzmaurice,  The  General  Principles  of 
International Law Considered from the Standpoint 
of the Rule of Law, 92 Recueil des Cours 5, pp. 
2. The Monistic Doctrine: - some of the fundamental
68-94  
notions of IL cannot be comprehended without the
A. Practical principles:  
assumption of a superior legal order from which the
1. The State cannot plead the provisions of its
various systems of ML are derived by way of
national law, or of its constitution, as a ground for
delegation.
the non-observance of its intl obligations.
1. Both regulate the conduct of individuals but 
in the international sphere, the consequences of
2. The State is under a general duty to cause its
such conduct are attributed to the State.
law & consti to conform or to be such as to enable
2. In both sphere, law is essentially a command
the State to conform to its intl obligations.
binding upon the subjects of the law independently
of their will.
3. The State cannot plead changes, even
3. Both are manifestations of a single conception of
revolutionary changes in the State’s government,
law.
admin, dynasty, political or social system or regime,
or in the personality of the head of State as an
B. Law of Nations as Part of Municipal Law  
excuse for the non-performance of its intl
1. In Great Britain:  
obligations. When there is a new govt, there is no
a. customary rules are recognized and applied
devolution of obligations or rights. The State and its
b. Treaties affect private rights. The Crown is
entity and personality persist uninterruptedly.
willing to allow Parliament to approve treaties
prior to their ratification and that enabling
4. When there is not merely a new regime but a
legislation is passed before the treaty is ratified.
new State:
c. English statutory law is binding upon English
a. The new State becomes ipso facto subject of
courts, even if in conflict with International Law
general international law rights and obligations.
but this does not mean that English law
b. As to obligations undertaken by treaties, rights
recognizes in all circumstance the supremacy of
and obligations devolve in accordance with State
International Law.
Succession.
------------------------------------------------------------------------
2. In the United States:
 
-International Law is binding even if it conflicts
 
municipal law and vice versa.
 
 
C. Municipal Courts must apply International Law 
 
even if it has not been expressly incorporated in 
 
the  Municipal  Law  because  of  several 
 
presumptions:  

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B. Theories of International Law   that they had acted in accordance with their national
I. [MAGALLONA, 2005 law.
DUALIST  MONIST  MONIST 
e. Issues of ML before Intl Tribunals Cases in w/c 
NATURALIST 
a tribunal dealing w/ issues of IL has to examine 
Points to Primarily IL & ML are ML of States:  
essential asserts subordinate to 1. As a matter of evidence, when tackling spheres
difference of IL supremacy of a 3rd legal of competence claimed by states – issues relating
and ML, IL over ML. order, usually to expropriation, fishing limits, nationality etc.
primarily to the (Although postulated in
fact that they Kelsen, aterms of 2. When treaties contain provisions referring
legislate diff. monist, does “natural law” or directly to ML or employing concepts w/c by
subject matter. not support
“general implication are to be understood in the context of a
this). principles of particular natl. law.
law”, superior
IL is law bet. It is IL which is to both & 3. When Intl tribunal is faced w/ the task of deciding
sovereign ultimately capable of issues solely on the basis of municipal law of a
states. ML is concerned w/ determining particular state. (i.e., Serbian Loans case)
law within a the conduct & their respective
state. welfare of spheres. f. ML as ‘facts’ before Intl tribunals 6 aspects:  
individuals. 1. ML as evidence of conduct in violation of rule of
treaty or customary law
Neither legal The state is 2. Judicial notice does not apply to matters of ML.
order has disliked as an Proof required.
power to abstraction. 3. Interpretation of their own laws by natl courts is
create or alter binding on an intl tribunal.
rules of the 4. Assumption that for any domestic issue, there
other. must always be some applicable rule of ML, which
will be ascertainable in the same way as other
a. [3 theories above assume that ML & IL operate ‘facts’ in the case.
simultaneously in a common field in regard to the 5. Intl tribunals can’t declare the internal validity of
same subject-matter] rules of natl law. ILO must respect the reserved
domain of domestic jurisdiction.
b. Coordination:   6. ML are merely facts.
-(Fitzmaurice) ML & IL don’t conflict in systems bec.
they operate in diff. spheres. Each is supreme in its g. Issues of IL before Municipal Courts  
own field. Their relation may only result in a conflict of a. Before municipal courts] Rules of IL are accepted
obligations. as rules of law & are not required to be established by
formal proof [unlike rules of foreign law]. But public
c.  The  relation  bet. obligations of States & ML  policy requires special considerations in procedure
State cannot adduce its own Consti w/ a view to whereby the executive is consulted on questions of
evading obligations incumbent upon it under IL. mixed fact & law. This is in order to avoid the
embarrassment of conflict of opinion.
d. The Position of the Individual  
The Intl Military Tribunal and many natl tribunals do h. How IL are given effect in the intl sphere (the 
not admit pleas by persons charged w/ war crimes English model)  

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municipal courts may rely on advice from the


INCORPORATION  TRANSFORMATION 
executive or existing internal precedents.
Customary rules are to IL is part of the law of 3. Courts will often be concerned with the more
be considered as part of the land only in so far technical question as to which is the appropriate
the law of the land, with as the rules have been system to apply.
the qualification that clearly adopted & made
they are incorporated part of the law of the n. Vienna Convention on the Law of Treaties  
only so far as is State by legislature, ART 27: A party may invoke the provisions of its
consistent w/ acts of the judicial decision or internal law as justification for its failure to perform a
legislature & prior established usage. treaty.
judicial decisions of the Art.46: Provisions of Int’l law Regarding Competence
State.   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
i. Treaties: Become part of law if an enabling act of of a provision its internal law regarding competence to
the legislature has been passed. Statute prevails over conclude treaties as invalidating its consent unless
treaty. Resort to the text of a Convention may be had that violation was manifest and concerned a rule of its
under the condition that there be cogent extrinsic internal law of fundamental importance.
evidence that the enactment was intended to fulfill 2. A violation is manifest if it would be objectively
obligations under a particular convention. evident to any state conducting itself in the manner in
accordance with normal practice and in good faith.
j. Self-executing treaties: Certain rules of IL don’t  
need incorporation in order to have internal effect. II. [Bernas] 
1. Command theory | (John Austin)
k. Res judicata: There is no effect of res judicata a. law consists of commands originating from a
from the decision of a municipal court so far as an intl sovereign backed up by threats of sanction if
jurisdiction is concerned. Although the subject matter disobeyed.
may be substantially the same, the parties and issues b. International law is not law because it does not
will not be. However, considerations of admissibility come from a command of a sovereign. Neither
may have the effect of creating an exception to this treaties nor custom come from a command of a
general rule. sovereign.
c. (already discredited) The reality is that nations see
l. Relation to sources of IL   international law not as commands but as principles
-Judicial decisions in municipal sphere provide prima for free and orderly interaction.
facie evidence of attitudes of states on points of intl
law and very often constitute the only available 2. Consensual theory.  
evidence of the practice of states. a. Under this theory, international law derives its
binding force from the consent of states.
m. Conclusion   b. Treaties are an expression of consent. Likewise,
-Factors that operate on the subject matter of the  custom, as voluntary adherence to common
relation between ML and IL:   practices, is seen as expression of consent.
1. Organizational – to what extent are organs of c. In reality there are many binding rules which do not
the states willing to apply rules of IL internally and derive from consent.
externally?
2.  Difficulty  of  proving  the  existence  of  3. Natural law theory.  
particular  rules  of  IL.  In case of difficulty,

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a. law is derived by reason from the nature of man.


As to Substance 
International law is said to be an application of natural
reason to the nature of the state-person. A law between A law of the sovereign
b. Although the theory finds little support now, much sovereign states. over individuals.
of customary law and what are regarded as generally
accepted principles of law are in fact an expression of
what traditionally was called natural law. ML in IL 
ML v IL  1. The prevailing practice accepts dualism at least in
its postulate that there are two legal systems.
DUALISM   MONISM 
[Dualist or Pluralist  [Monistic Theory]  2. “A party may not invoke the provisions of its
Theory]  internal law as justification for its failure to perform a
treaty.” [Article 27 of the Vienna Convention on the 
When IL and ML IL and (DL) domestic
Law of Treaties] 
conflict, ML must law belong to only one
prevail.   system of law.
3. “Every State has the duty to carry out in good faith
The dualists are 2 monist theories: its obligations arising from treaties and other sources
positivists with a strong of international law, and it may not invoke provisions
emphasis on state 1. ML subsumes and is in its constitution or its laws as an excuse for failure to
sovereignty. superior to IL. perform this duty.” [Article 13 of the Declaration of 
Rights  and  Duties  of  States  adopted  by  the 
2. (Kelsen) IL is International Law Commission in 1949]
superior to DL.
4. Same; This follows the dualist tradition and blocks
The superiority of IL is domestic law from entry into the international arena.
seen as flowing from a Thus, a state which has violated a provision of
deep suspicion of local international law cannot justify itself by recourse to its
sovereigns and from the domestic law.
conviction that IL can
imbue the domestic 5. A state which has entered into an international
order with a sense of agreement must modify its law to make it conform to
moral purpose. the agreement.
 
6. “A state which has contracted a valid international
IL  ML  obligation is bound to make in its legislation such
modifications as may be necessary to ensure the
As to Source  fulfillment of the obligations undertaken.” [Exchange 
of Greek and Turkish Population Case]
Treaties and custom Product of local custom
grown among states. or of legislation 7. Article 38 recognizes the common teachings of 
  domestic law as part of international law. “If the
Court were to decide the case in disregard of the
As to relations they regulate 
relevant institutions of municipal law, it would without
Relations between Relations between justification, invite serious legal difficulties. It would
states. individual persons lose touch with reality.... [Barcelona Traction Case]
under the state. It is to rules generally accepted by municipal

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systems,... and not to the municipal law of a particular


Treaties do not become
State, that international law refers.
part of the law of a state
unless it is consented to
8. “Where the court must decide a dispute which turns
by the state.
not upon international law but upon domestic law,
once the Court has arrived at the conclusion that it is
necessary to apply the municipal law of a particular
country, there seems to be no doubt that it must seek What does Philippine law follow?  
to apply it as it would be applied in that country....” 1. In the case of treaties as international law, they 
[Brazilian Loans Case]  become  part  of  the  law  of  the  land  when 
concurred  in  by  the  Senate  in accordance with
IL in DL   Article VII, Section 21 of the Constitution which sets
1. Dualism also rules when it comes to entry of down the mechanism for transforming a treaty into
international law into the domestic sphere. binding municipal law.

2. International law, unless it is made part of the 2. With regard to customary law and treaties which
domestic system, has no role in the settlement of have become customary law, by saying that the
domestic conflicts. Philippines “adopts the generally accepted principles
of international law as part of the law of the land,” the
3. How  does  international  law  become  part  of  Constitution manifests  its  adherence  to  the 
domestic law for “dualists”?   “dualist” theory and at the same time adopts the 
  incorporation  theory and thereby makes
international law part of domestic law.
DOCTRINE OF  DOCTRINE OF 
TRANSFORMATION  INCORPORATION 
3. This provision makes the Philippines one of the
Based on a strict dualist The law of nations, states which make a specific declaration that
approach.   wherever any question international law has the force also of domestic law.
arises which is properly
Since the two systems the object of its 4. IL therefore can be used by Philippine courts to
are distinct and operate jurisdiction, is here settle domestic disputes in much the same way that
separately, for adopted in its full extent they would use the Civil Code or the Penal Code and
international law to by the common law, other laws passed by Congress.
become part of and it is held to be part
domestic law it must be  of the law of the land. What elements of international law become part of 
expressly  and  (Blackstone)  Philippine law by incorporation through Article II, 
specifically  Section 2?  
transformed  into  1. Since treaties become a part of Philippine law only
domestic law through  by ratification, the  principle  of  incorporation 
the  appropriate  applies  only  to  customary  law  and  to  treaties 
constitutional  which have become part of customary law.
machinery such as an
act of Congress or 2. There have been occasions when the Supreme
Parliament. Court made use of international law to settle domestic
problems.
This doctrine flows by
analogy from what is  
applicable to treaties.    

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Conflict between IL and DL: International Rule general principles of international law as part of 


1. It will depend on whether the case goes to a  the law of the land.  
domestic court or to an international tribunal.  
4. Problems can more likely arise between treaties on
2. Before an international tribunal: a state may not  the one hand and the Constitution or statutes on the
plead  its  own  law  as  an  excuse  for  failure  to  other.
comply with international law. “Every State has the
duty to carry out in good faith its obligations arising 5. Should a conflict arise between an international
from treaties and other sources of international law, agreement and the Constitution, the treaty would not
and it may not invoke provisions in its constitutions or be valid and operative as domestic law. The
its laws as an excuse for failure to perform this duty.” Constitution, in Article VIII, Section 5, 2(a) explicitly
recognizes the power of the Supreme Court to
3. “A State which has contracted valid international declare a treaty unconstitutional.
obligations is bound to make in its legislation such
modifications as may be necessary to ensure the 6. This does not mean that a treaty that has been
fulfillment of the obligations undertaken.” [Exchange declared unconstitutional loses its character as
of Greek and Turkish Population Case] international law. Under the “dualist” theory, which the
Constitution accepts, the  unconstitutionality  of a 
4.  EXCEPTION:  In cases where the constitutional treaty is purely a domestic matter.  
“violation was manifest and concerned a rule of its
internal law of fundamental importance.” [Article 46, 7. “A party may not invoke the provisions of its
Vienna Convention] internal law as justification for its failure to perform a
treaty.” [Article 27 of the Vienna Convention on the 
5. The violation is “manifest if it would be objectively Law of Treaties] 
evident to any State conducting itself in the matter in
accordance with normal practice and in good faith.” 8. The municipal rule for settling a conflict between
international agreement and legislation is different.
6. If the treaty that is declared unconstitutional does The rule followed in the United States is that treaties 
not come under the exception, the treaty can be and  statutes  are  equal  in  rank  and that, since
ignored domestically but only at the risk of neither is superior to the other, the rule followed is
international repercussions before an international that as between an earlier treaty and a later law,
court. the later one prevails.  

Conflict between IL and DL: Municipal Rule 9. “This Court has also repeatedly taken the position
1. When the conflict comes before a domestic court, that an Act of Congress ... is on a full parity with a
domestic courts are bound to apply the local law. treaty, and that when a statute which is subsequent in
time is inconsistent with a treaty, the statute to the
2. In international practice courts are very rarely extent of conflict renders the treaty null.” [US
confronted with such a problem. REASON: courts are Supreme Court]
generally able to give to domestic law a construction
which does not conflict with international law. 10. The same rule applies in the Philippines. But
again, the  rule  applies  only  in  the  domestic 
3. IN CASE OF CONFLICT: Conceivably, there sphere. The treaty, even if contrary to later statute,
should be no such conflict between the Philippine remains as international law; while an international
Constitution or statutes on the one hand and tribunal would not have the power to reverse the
customary international law on the other because the  nullification of the treaty in domestic law, it can take
Constitution  when  formulated  accepted  the  appropriate action in favor of an aggrieved state.

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II SOURCES   intended to circumscribe in any way the operation of


A. In General   the sources which are described.
a. Article 38(1), International Court of Justice (ICJ) 
Statute   -Every imaginable new source is indirectly envisaged
1. The  Court, whose function is, to decide in in the list in Art 38 and is simply the product of the law
accordance with international law such disputes as emanating from the sources which are mentioned in
are submitted to it, shall apply:   that list.
a. international convention, whether general or
particular, establishing rules expressly [Notes: Magi notes on Article 38] 
recognized by contesting states; -The word subsidiary in (d) may indicate that a-c are
b. international custom, as evidence of general the primary sources law whereas the 2 items in d are
practice accepted as law; merely subsidiary.
c. the general principles of law recognized by  
civilized nations -When we speak of sources of law, we are referring to
d. subject to the provisions of Article 59, judicial norm-creating mechanisms. In a-c, there is a creation
decisions and the teachings of the most highly of norms while in (d), we have methods for proving or
qualified publicists of the various nations, as indicating the roots of law that are already in
subsidiary means for the determination of rules of existence. (d) may be considered as evidence of law.
law.
-Article 59 emphasizes the fact that judicial decisions
2. This provision shall not prejudice the power of the and the works of publicists are not by themselves
Court to decide a case ex aequo et bono, if the intended to be operative as norms.
parties agree thereto.
-Article 38 seems to present a hierarchy, a-c over d
Article  59  The decision of the court has no but this is wrong because a-c and d in fact do not 
binding force except between the parties and in belong to the same category.  
respect on that particular case.
  -The application of the conventional rules is given 
1. When IL is invoked, it must be asked: primacy  even  if  this  exists  side  by  side  with 
-W.O.N. it is in truth a rule of law; customary norm of a general character. Why?
-W.O.N. it’s endowed w/ obligatory character that 1. on account of the nature of those norms and on
rules of IL possess; or account of the specific relationship of the parties. Not
-W.O.N. it is a valid rule. parties to the treaty but parties to the dispute. It is this
principle that governs the primary application of
a. SOLUTION: Doctrine of the Sources of IL.   conventional rules.
(Where do IL drive their validity)
1. Doctrine of Natural Law – rules of natural law -If there is any hierarchy, it is on the basis of this
are binding upon man because they conform to principle and not on the physical placement in the text
the divine will or the dictate of reason. Validity is of Article 38.
independent of human intervention.  
2. Doctrine of Positive Law – valid and binding  
only  if  laid down in a manner investing it w/  
validity – proceeds from a recognized source.   
   
-There is a fairly general agreement that the  
terminology Art 38 is purely descriptive and not  

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I. TREATIES BET. STATES  


FORMAL SOURCES  MATERIAL SOURCES 
a. Interstate treaty - as a method of creating norms
Those legal procedures Provide evidence for the of IL, is a clearly expressed agreement bet. states
and methods for the existence of rules relating to the recognition of a particular rule as a
creation of rules of which, when proved, norm of IL or to the change or liquidation of existing
general application have the status of norms of IL
which are legally legally binding rules of > Vienna convention, Art. 2: treaty - is an intl
binding on the general application. [Id] agreement concluded between states in written
addressees. [Brownlie, form
Principles of Public >  Conventional  norm  of  IL  – result of an
International Law] agreement expressed in the form of treaties bet.
states
FORMAL SOURCES 
In context of ML   b. In 2nd half of 19th century, theories emerged that 
only a certain group of intl treaties played a role in 
Refers to constitutional machinery of law making norm-formation.
and the status of the rule is established by A.  Bergbohm  - two categories exist based on
constitutional law. [Id] difference in purpose, which contracting parties set for
themselves:
FORMAL SOURCES  1.  contract treaties – don’t go beyond possible
In context of IL limits already granted to states under prevailing IL;
don’t establish norms of conduct for long periods of
No such machinery exists for the creation of rules time; very rarely are sources of IL
of IL. [Id]
2.  law-making  treaties  – create abstract norms
Decisions of the international Court, unanimously
which are recognized/established by states as
supported decisions of the General Assembly of
norms of conduct for the future; sources of IL
the UN concerning matters of law, & important
multilateral treaties concerned to codify or develop
B. N. Korkunov  
rules of IL ARE ALL LACKING THE QUALITY TO
1. constitutive – regulate an individual concrete
BIND ALL THE STATES GENERALLY. [Id]
relationship; do not establish a legal norm as the
In a sense, concept (formal sources) do not exist in general rule
IL. As a substitute or as an equivalent, there is a
principle that the general  consent  of  States  2. regulatory – have the purpose of standardizing
creates rules of general application. [Id]  a whole series of uniform relationships and
establishing general norms for all uniform
  relationships
B. Formal Sources  
a. Treaties and Conventions  | Tunkin, Theory of  C. F. Martens  
International Law, 1974   1. treaties that formulate legal norms
i. Shortcuts:   2. contractual treaties concerning private interests
IC – International Conference
IT – International Treaty D.  Triepel  –  distinction bet. norm-creating treaties
IO – International Organization and other treaties:
IL – International Law 1. Vertrag – in treaty which doesn’t create norms,
ILC – International Law Commission there is divergence of wills of contracting parties

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2. Vereinbarung – in norm-creating treaties, there


is coincidence of wills and their amalgamation into E. Guggenheim: The difference bet. Norm creating
a common will (Gemeinwille) and contractual treaties affects only the content,
and interpretation but not the legal nature of intl
E. A. Ulloa: Majority of intl treaties are not a source of conventions.
IL. They simply arise out of prevailing IL.
F. F.I. Kozhevnik: All treaties in principle have a
F. A. Verdross, divides treaties into: norm-formative character…since they establish
1.  Vereinbarungen  (law-making  treaties)  – rules of conduct which their parties are bound to
includes multilateral and bilateral treaties that observe. Difference lies in treaties which establish
establish general abstract norms rules for:
1. whole sphere of relations among states
2. Rechtsgeschafte (contracts) – includes treaties 2. definite concrete questions
pertaining to specific questions
G. Korovin: Division is unfounded. Any treaty, as
G. Rosseau: Only law-making treaties (traites-lois) an act originating with state-subjects of IL, has a
are recognized as sources of IL particular law-making significance.

H. Jimenez de Arachaga: Although both lawmaking H. Lachs: In reality…an intl treaty, either bilateral


and contractual treaties create legal norms, only  or multilateral, is a source of rights and duties, even
those  treaties  which  form general norms are a  when it regulates very commonplace questions of
source of IL. everyday life. Lachs divides treaties into:
1. Treaties affirming or formulating certain
c. Today, many writers reject this division [A-H] already existing binding principles and norms of
A. Rosseau: Both types of treaties have the same law for the purpose of greater clarity;
force in positive IL and no hierarchy exists between 2. Treaties creating new principles and norms;
them. The division is of interest only in terms of 3. Treaties applying existing principles or norms
description and classification. of law ad casum.

B.  Oppenheim-  Lauterpacht:  All treaties are d. Tunkin: Problem [of distinction] is exaggerated &
law-making inasmuch as they lay down rules of has no practical significance. Any valid intl treaty has
conduct which the parties are bound to observe as legally binding force for its parties & in this sense is
law. law-making.

C.  C.  de  Visscher:  Although both treaties play e. Conclusion of a Treaty: a process of bringing the
unequal roles in the development of IL, both are law wills of States into concordance, the result of which is
for the contracting parties. Only difference: an agreement that is embodied in the norms of the
1. law-making treaties – relate to wider sphere of treaty. The process embraces several stages:  
relations and concluded for a prolonged period 1. negotiations
2. contractual treaties – concluded w/ regard to 2. initialing
private questions, short-term, and after being 3. adoption by IC or organ of IO
fulfilled, terminate their operation 4. signature
5. confirmation
D. Kelsen – completely rejects the division; The 6. ratification
essential function of a treaty is to make law, to 7. exchange/deposit of instruments
create a legal norm, whether general or an 8. entry into force
individual norm.

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**It is not obligatory that conclusion of a specific treaty a. the consent of states to enter into
pass through all these stages. negotiations doesn’t in itself impose an
obligation to conclude a treaty
f. When does process begin & end?  
i. Fitzmaurice: Text Agreement. The drafting of the ii. Once process of concluding a treaty is complete,
text is a technical process irrelevant to the agreement. the process of forming norm of IL is complete.

ii. Tunkin: Fitzmaurice’s construction is artificial. j. Modification/Liquidation of a Treaty Norm  


-One can’t distinguish between the negotiating 1.Modification – may occur by treaty or by custom
process among representatives of states and the i. By treaty occurs by concluding a supplemental or
preparation of the draft treaty by experts who are not new treaty
plenipotentiary representatives of states. (a) BUT any modification of a treaty requires the
consent of all parties unless the treaty itself
-The process of concluding a treaty commences with provides otherwise.
negotiations among official state representatives  
irrespective of the form/level wherein these 2.Liquidation – also by treaty or custom
negotiations take place. i.  By  treaty:  expiration of the term of treaty,
agreement of parties, denunciation, abrogation etc.
gh. Process of Treaty Formation  
1. Content of agreement is formed in the course of II.  TREATIES  BET.  STATES  CONCLUDED  W/IN 
working out a treaty text (during negotiations in ICs THE FRAMEWORK OF IOs  
etc.). Agreement is fixed in the text. a. IOs concentrate in their hands the organizing of the
conclusion of multilateral treaties among states
2. By initialing, signature or enactments of ICs or IOs, concerning questions w/c relate towards the domain
the treaty text is established. of their activities. Trend:  towards simplifying
- Gen Rule: Once text is established, no participant  procedure of concluding ITs.
can insist on its being changed.
- Exception: When reservations are made. i. Example: In the Intl Labor Organization…

h. Reservation Objection Effect   -Convention adopted by General Conference


Norm of IL – result of completion of the process of -signed by Conference Chairman & ILO Director
concluding an IT General
Note: But it is necessary to distinguish bet. entry  -certified copies sent to member-states
into force and process of concluding a treaty   -state ratifies & notifies Dir-Gen of ratification

  -Thus, no signatures of state representatives required


i. Rules:   or deposit of instruments of ratification
1. Treaty concluded before entry into force 
-norm emerges but still not a prevailing norm b. IOs vs Normal Norm-Creating Process  
2. Treaty entered into force before concluded   i. There are two aspects of forming norms, whether
-norm exists & commences to operate but operation is customary or conventional. Norm-formation consists
provisional (subject to ratification) of bringing into concordance the wills of the states
with respect to:
i. Until a treaty norm of IL has entered into force, no  1. content of rules of conduct
legal  obligations  arise  for  the  parties  to  the  2. recognition of rule as norm of IL
negotiations on the basis of it. But this does not
affect obligations concerning negotiations.

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ii. In IOs, these aspects never coincide. Concordance binding upon states, an  expression of its will is 
of states as to: necessary to recognize such norms as IL norms 
1. content : accomplished w/in the framework Thus,  binding  force  of  forms  of  regulations  is 
of IO as in adoption of treaty text as final by based upon agreement & not upon legislative power
the organ of the IO or conference of of IOs.
plenipotentiaries of States created by a
decision of IO IV. TREATIES OF IOs  
2. recognition as norm of IL  : formed from a. Why created - result of development of IOs that
individual actions of states (signature, are subjects of IL
ratification etc.) w/o w/c treaties adopted by
IOs don’t become legally binding upon states b. Two Categories  
24 1. Treaties  concluded  by  IOs  with  each 
other  ex. Standard Agreement on Mutual
III.  REGULATIONS  ADOPTED  BY  SPECIALIZED  Assistance to Jordan
IOs   2. Treaties concluded by IOs with states -
a. Examples of Specialized IOs :   relate to location of organizations & their
-World Meteorological Organization organs, granting of assistance, privileges &
-Universal Postal Union etc. immunities etc.

b. Why created   c. Legal nature  


i. Specialized IOs create normative regulations bec. i. There are two views as to the legal nature of 
of increase in quantity of primarily technical questions treaties of IOs:  
w/in w/c the orgs had to occupy themselves. 1. Considered  as  treaties bet. States. This
Simplified procedure required. Technology moves view arose out of a denial of the legal
rapidly. Thus, norms must change frequently. personality of IOs. Treaties of IOs are
considered simply as variant forms of
c. How formulated   treaties bet. states. For example,
i. Regulations are adopted by plenary or lesser agreements concluded by the UN give rise to
organs. The charter come into force: rights & obligations not for the UN as such,
1. expressly  –  subject to ratification or but for member states of the UN.
approval of states 2. Considered as treaties bet. IO and states. 
2. tacitly – regulation regarded as accepted if  This view arose out of a confirmation that
state does not object or does not refuse  IOs have legal personality. IOs are created
to  accept  a particular regulation w/in a  by states but they are organizations distinct
prescribed period   from states. IOs acquire rights & assume
  specific obligations, separate from states.
d. Legal Nature   i. The ILC initially proposed to include
i. Other writers (Guggenheim, Friedmann, Vellas, treaties of IOs within the scope of draft
Suba etc.) : These regulations are international articles on the law of treaties, such that a
legislation. They are more acts of the organization treaty will be defined as “an agreement in
than an agreement bet. member- states & resemble writing bet. two or more states or IOs…”.
unilateral legislative acts enacted by congress (in Even writers who consider treaties bet.
municipal law). subjects of IL as not necessarily being ITs or
who do not have a definite position on this
ii.  Tunkin:  Regulations are not legislation but question also come to the conclusion that
International Treaties. Content of norms may have the overwhelming majority of treaties of IOs
already been finally determined [by IO] but to become have an intl character.

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2. by a new treaty
ii. But the ILC eventually decided to work out
a draft having in view only treaties bet. states ****Jennings, Treaties in Bedjaoui 
in order to study later what modifications are Shortcuts:  
required to be introduced to make them IC – International Conference
applicable to treaties of IOs. IT – International Treaty
IO – International Organization
iii. Tunkin says this decision is correct. IL – International Law
Because… Recognizing agreements of IOs
as ITs in no way signifies that such treaties I. INTRODUCTION  
can be equated to treaties bet. states. 1. The treaty is the most important instrument known
Specific feature of IOs as subjects of IL to IL…and is also, in volume, range and ubiquity, the
affects treaties which they conclude. most important source of IL.

iv. Norms of treaties concluded bet. IO-IO 2. The standard form of treaty…is a written
and IO-States always are of a secondary agreement between States, which creates obligations
nature. The validity of these treaties is & rights in IL…[But] besides treaties bet. States, there
always the charter of the IO, which contains are treaties bet. States-IOs and bet. IO-IO.
norms of primary order.
3. IL prescribes no particular form or procedure for the
d. 2 kinds of treaties   making of intl engagements: though Consti Law of a
1. contractual: contains provisions which do not go State may and frequently does. Nor is there any
beyond the possible limit already granted to states required order of the content of a treaty. There are
under prevailing IL; rarely a source of IL. also many possible designations of a treaty. It may be
called: convention, declaration, protocol, act etc.
2.  law-making  treaties:  create abstract norms
recognized by states as norms of conduct for the II. CONCLUSION & ENTRY INTO FORCE  
future. a. Two phases in conclusion & entry into force:  
1. adoption of an agreed final draft of the treaty text
e. Treaty-making process   2. ways in which a party can thereafter effectively
1. negotiations indicate its consent to become bound by the treaty
2. initiating
3. adoption by the intl. Organ Phase  1:  Vienna  Convention  Rules  on  the 
4. signature adoption of an agreed text  
5. confirmation 1. In bilateral treaties or treaties between a few
6. ratification States, unanimity remains the rule. Adoption
7. exchange & deposit of instruments requires the consent of all States participating.
8. entry into force
2. At a general diplomatic conference, unanimity
*** some of these stages may be skipped will be unrealistic. Adoption takes place by the vote
*** the drafting of the text is a technical process which of 2/3 of the States present and voting, unless by
has no relevance to agreeing to the treaty. Thus a the same majority they shall decide to apply a diff.
state may agree to the language of the draft, but may rule.
later on refuse to accede to the treaty itself.
Phase 2: Modes of expressing consent to become 
f. How treaties are modified  bound  
1. by custom a. Signature – serves two diff. functions:

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1. one act of signature may both authenticate the a reserving State could not become a party
text and express finally the consent of the unless the reservation received the express or
signatory State to be bound by the treaty or; tacit approval of every other State party.

2. signature authenticates the text but consent to b. Object & Purpose Test  
be bound has to be expressed by a second step, A State which has made & maintained a
such as ratification, approval etc. reservation…can be regarded as being a party
to the Convention if the reservation is
b.  Ratification  – the exchange or deposit of a compatible with the object and purpose of the
formal instrument, by which a State signifies its Convention.
willingness to become bound by a treaty
1.  bilateral  treaty  –  instrument normally If a party objected to a reservation as not being
exchanged so compatible, that party is entitled to regard
2.  multilateral  treaty  –  instrument normally the reserving State as not being a party to the
deposited with a designated depositary power Convention; and conversely for a party taking
the opposite view.
c. Acceptance & Approval – less formal modes of
expressing willingness to become a party to a treaty c.  Compatibility  Test  at  the  Vienna 
Conference.  A State may…formulate a
d. Accession – an act whereby a State becomes a reservation unless:
party to a treaty already made and signed by other a. the reservation is prohibited by the treaty
States; or an act whereby a State may become a
party to a treaty made under the auspices of an IO b. the treaty provides that only specified
reservations, which do not include the
[Time of entry into force ]  reservation in question, may be made
a. Bilateral treaty  
- moment both parties validly express consent to be c. or in cases not falling under (a) or (b), the
bound or; reservation is not compatible with the object
- subsequent date agreed upon by the parties for and purpose of the treaty.
entry into force 2. Legal Effect of Reservations on existing parties 
b. Multilateral treaty   to a treaty  
-  desirable to postpone entry into force until the i. Gen Rule: Acceptance of a reservation by another
convention has been accepted by a goodly number contracting State constitutes the reserving State a
of States party in relation to that other State.
- but procedural provisions governing entry into
force etc. usually apply from the time of the ii. An act expressing a State’s consent to be bound by
adoption of the text the treaty and containing a reservation is effective as
soon as at least one other contracting State has
III. RESERVATION   accepted the reservation; and a reservation is
1. Legal Effect   considered to have been accepted by a State if it has
1. Where treaty itself provides that a reservation not objected to it within 12 months of its notification.
may or may not be made, follow the treaty.
2. Otherwise: iii. Scheme leans in favor of the reserving state.
a.  Traditional  doctrine  based  on  unanimity  Objectors have to take position action.
principle  
A reservation not expressly provided for in the iv. A reservation established with regard to another
treaty, is in effect a new offer; and accordingly party, modifies provisions of the treaty to the extent of

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the reservation, in the relation between the reserving V. TREATIES & 3RD STATES  
State and the other party. However, the reservation 1. A treaty does not create obligations or rights 
does not modify the provisions of the treaty for the for a 3rd State without its consent.
other parties inter se.
2. An obligation or right created may not be modified
IV.  OBSERVANCE,  APPLICATION  and  or revoked without the consent of the 3rd State.
INTERPRETATION  
1. Observance   3. If a treaty rule is the same as an existing general
i. The primary principle to be observed is pacta sunt  rule of customary law, the latter will still apply to 3rd
servanda: Every treaty in force is binding upon the States as custom. Thus, States  parties  to  the 
parties to it and must be performed by them in good treaties will be doubly bound: by custom in regard
faith; A party may not invoke the provisions of its to States generally, and also by treaty in regard to the
internal law as justification for its failure to perform a other parties.
treaty.
4. Example of an indirect way by which a treaty may
2. Application   affect the rights and obligations of 3rd States: If a
i. In point of time: A treaty is not retroactive. treaty validly creates an IO with legal personality, a 
3rd State may not be in a position to deny the 
ii. Territorial application: A treaty will apply to the objective and legal existence of that organization.  
whole territory of the State.
VI. AMENDMENT & MODIFICATION 
iii.  Conflicts  of  treaties  relating  to  the  same 
AMENDMENT  MODIFICATION 
subject matter:  
* If all parties to treaty 1 are parties to treaty 2:  a formal agreement to an inter se agreement
Lex posterior principle will apply & treaty 2 will alter the treaty with between only some
prevail. respect to all parties parties and intended to
vary the treaty bet.
* If not all parties to treaty 1 are parties to treaty  themselves alone
2:  
- as between States parties to both treaties: later
treaty prevails 1. The Vienna Convention lays down rules for the
- as between a State - party to both treaties and amendment of multilateral treaties and agreements to
another State - party to only one treaty: treaty to modify multilateral treaty as bet. two parties.
which both are parties prevails
VII. INVALIDITY  
3. Interpretation   1. Possible causes of invalidity:  
i. Gen. Rule: Where the meaning is clear, the treaty 1. Breach of IL  
should be applied accdng to its clear meaning. i. Q: May the State be bound through a person
acting ultra vires, yet having ostensible authority
ii. If interpretation is required, the Gen. Rule of to deal in the eyes of the other party?
Interpretation is: A  treaty  shall be interpreted in  ii. Rule: Consent on the intl plane binds.
good  faith  in  accordance  with  the  ordinary  iii. Exception: Where the violation of the internal
meaning to be given to the terms of the treaty in  law was manifest and the internal law rule
their context & in the light of its object & purpose. violated was of fundamental importance.

iii. primarily textual, but also incorporates principles of  


object & purpose and intention of parties  

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2. Error   Member of the UN…be registered as soon as


i. Error may be invoked as a ground invalidating possible with the Secretariat and published by it.
consent only if the error relates to some fact 
or situation which was assumed by the State  ii. The sanction is not invalidity, but that the
invoking the error to exist at the time when the unregistered treaty or agreement may not be
treaty was concluded, and that fact or situation invoked before any organ of the UN, including the
formed an essential basis of its consent to be ICJ.
bound by the treaty.
6. Jus Cogens  
ii. Error may not be invoked by the State if it  A treaty is void if, at the time of its conclusion, it
contributed to the error by its own conduct or  conflicts with a peremptory norm of general IL.
if the circumstances were such as to put the 
State on notice of a possible error. a. 1. The Security Council shall, where
appropriate, utilize such regional
3. Fraud   arrangements or agencies for enforcement
i. If a State has been induced to conclude a treaty action Under its authority. But no
by the fraudulent act of another negotiating State, enforcement action shall be taken under
the State may invoke the fraud as invalidating  regional arrangements or by regional agencies
its consent to be bound by the treaty. without the authorization of the Security
Council* with the exception of measures
ii. Manipulation of a State representative through against any enemy state, as defined in
corruption may also be invoked as invalidating paragraph 2 of this Article, provided for
the State’s consent. pursuant to Article 107 or in regional
arrangements directed against renewal of
4. Coercion   aggressive policy on the part of any such
a. employed against the representative of the  state, until such time as the Organization may,
State   on request of the Governments concerned, be
- consent shall be without legal effect; except  charged with the responsibility for preventing
when the State concerned has already ratified further aggression by such a state.
the representative’s act
2. The term enemy state as used in paragraph
b. employed against the State itself   1 of this Article applies to any state which
- A treaty is void [in its entirety] if its conclusion during the Second World War has been an
has been procured by the threat or use of enemy of any signatory of the present
force in violation of the principles of IL Charter. [Article 53, UN Charter]
embodied in the Charter of the UN.
  b. 1. The Economic and Social Council may 
- Q: What uses of force are in violation of the take  appropriate  steps  to obtain regular
principles of IL? reports from the specialized agencies. It may
make arrangements with the Members of the
A: Force in any form, whether military, political or United Nations and with the specialized
economic. agencies to obtain reports on the steps taken
to give effect to its own recommendations and
5. Registration & Publication   to recommendations on matters falling within
i. Art. 102 UN Charter requires: Every treaty its competence made by the General
and every intl agreement entered into by any Assembly.

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2. It may communicate its observations on ii.  What  makes  a  particular  breach 


these reports to the General Assembly. [Article important enough? The kind of breach that
64, UN Charter] can justify an option to abrogate must be one
in an essential respect, going to the root or
c. The Economic and Social Council may make foundation of the treaty relationship bet. the
suitable arrangements for consultation with parties and calling in question the continued
nongovernmental organizations which are value, or even the possibility of that
concerned with matters within its competence. relationship.
Such arrangements may be made with
international organizations and, where iii. But the effects of a material breach of a
appropriate, with national organizations after bilateral treaty are the different from the effects
consultation with the Member of the United of a material breach of a multilateral treaty.
Nations concerned. [Article 71, UN Charter ] Effects of the latter are more complicated.

VIII.  TERMINATION  AND  SUSPENSION  OF  iv. Finally, breach must be distinguished from
OPERATION   justified non-performance (i.e., as a legitimate
1. Termination deals with a valid treaty which has retaliation for a prior wrong).
been in force for the parties. It is not the same as
invalidity. b. Supervening Impossibility of Performance  
i. Impossibility of performance is confined to 
2. Grounds for termination or suspension:   the  physical  removal  of  an  object 
1. Those logically linked with the notion of indispensable to the execution of the treaty.
agreement as the basis of treaties. Subtler kinds of impossibility of performing fall
i. Treaty may terminate where… into the next heading of…
- this is in conformity with the provisions of the
treaty, or where all parties are consulted and c. Fundamental Change of Circumstances  
agree to it. i. In domestic law, a common device to deal
with a *“frustration”  of the purpose of an
- the treaty does not have such provision, but agreement is the implied term, according to
parties nevertheless intended such a possibility which the parties are supposed, by an implied 
or the right of withdrawal can be implied in the but tacit term of their agreement, to have
nature of the treaty. agreed that the continuance of certain key
circumstances was essential to the operation
- termination is a necessary implication of the of the agreement; therefore a frustrating and 
conclusion of a later treaty between the same unanticipated  change  of  those 
parties, relating to the same subject-matter. circumstances would void the agreement.  

2. Those outside any area of agreement *a radical change of circumstances which


a. Breach   makes an agreement into something
i. Gen Rule: A sufficiently impt breach of an essentially different from what was
agreement by a party, gives a party suffering contemplated by the parties at the time they
from the breach the option to abrogate the  made it [parang clausula rebus sic stantibus
arrangement,  as well as a claim  to  to, di ko lang ma determine saan siya
appropriate reparation for damage caused  supposedly for footnote, pero parang sa
to him.   frustration or clausula rebus sic stantibus ]

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ii. In IL, the problem of frustration of the 1. said clauses are separable from the remainder of
purpose of agreement is dealt with under the the treaty with regard to their application
rubric of an implied so-called clausula rebus
sic stantibus, like the implied term devise in 2. it appears that acceptance of those clauses was
domestic law. not an essential basis of the consent of the party to
be bound
iii. The Vienna Convetion presents this concept 3. continued performance of the remainder of the
as an exception to the superior concept of treaty would be injust (!)
pacta sunt servanda.
3. Specific Rules:  
iv. BUT there are cases where the plea of  * A party must denounce the whole of the treaty or
obsolescence may not be used at all:   refrain from denouncing any part of it.
1.  boundary  treaty  –  where permanence
and stability, even though circumstances * Only a material breach will create the option of
change, is of the essence of the matter termination. A material breach affects the whole of
2. where the party seeking to invoke the the treaty, therefore termination in case of breach
change has himself wrought it may be in respect of the whole, as well as of the
parts.
IX.LEGAL  CONSEQUENCES  OF  INVALIDITY, 
TERMINATION OR SUSPENSION   * In cases of coercion of a representative, or the
1. Gen. Rule: The provisions of a void treaty have no use of unlawful force or threat of force against a
legal effect. State, or of conflict with a peremptory norm, the
whole treaty is affected and no separation of
2.  Specific  Rule:  If acts have nevertheless been clauses is permitted.
performed in reliance on a void treaty…
1. each party may require any other party to * Where the ground of invalidity is fraud or
establish as far as possible in their mutual relations corruption affecting a State’s consent to be bound,
the position that would have existed if the acts had termination must be with respect to the whole
not been performed treaty; But where clauses are severable, the ground
invoked may be limited to particular clauses only.
2. acts performed in good faith before the invalidity (see Gen. Rule and Exception above)
was invoked are valid …but these rules do not
apply in cases where there is fraud, corruption or XI. PROCEDURES IN CASES OF DISPUTE  
coercion, with respect to the party to which the 1. The ff. are complementary procedural rules for 
fraud, act of corruption or the coercion is imputable. dealing with disputes:  
i. Art. 65 lays down a requirement of due notice: A
party invoking…any defect…must notify in writing the
X. SEPARABILITY OF TREATY PROVISIONS AND  other parties of its claim, indicating the measure
THE INVOKING OF INVALIDITY OR OF A GROUND  proposed to be taken and the reasons therefor.
FOR TERMINATING OR SUSPENDING  
1. Gen. Rule: Grounds for termination etc. may be ii. Art. 33 lists possible means of pacific settlement 
invoked only with respect to the whole treaty. of  disputes  such  as  negotiation,  enquiry, 
mediation etc.: If an objection is raised by any other
2.  Exception: If ground relates solely to particular party against the proposed measure under Art. 65,
clauses, it may be invoked only with respect to those parties may seek a solution through means indicated
clauses where: in Art. 33.

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iii.  Art.  66  provides a procedure to be followed  d. Elements of custom:  


where procedures under Art. 65 have produced no  1) Practice (objective): 
solution within 12 months of the objection: Any -Practice constitutes the raw material of custom,
one of the parties may submit the dispute to the ICJ while the legal importance is added by the element
by written application, when the parties by common of acceptance as law
consent agree to submit the dispute to arbitration… -The rapid acceleration of the rhythm of
  international life and improvement of the means of
b. Customary International Law   communication has made possible the formation of
1.  Wolfke,  Custom  in Present Day International  custom within a shorter time and with quantitatively
Law, 1964   lesser practice.
a. The source of customary law is the community or,  
more accurately, the way of life of the community. -Can abstention be a source of custom?  
>NO  (Judge  Altamira): a custom must by its
b. The formation of custom is a continuous process very nature be positive in character, and a
with the ff. main stages: customary rule must be positively supported by
1) moment of formation when a certain practice the acts which have occurred.
becomes sufficiently ripe to justify at least a  
presumption that it has been accepted by other >YES (Sorensen): abstention is often a result of
interested states as an expression of law positive decision or action…depends on the kind
corresponding customary rule of international law of custom developing i.e. whether it is simple
begins to have binding effect inaction or abrogation of an existing customary
2) ascertainment of an already existing custom rule.
the establishment of the existence of an
international custom (or the fulfilment of its 2)  Acceptance  (subjective):  Means of expressing
elements), the formulation of the corresponding acceptance:
customary rule, and the fixing of its range of 1) express declarations – most unequivocal
validity 2) tacit – other individual or collective verbal acts,
depending on their content, legal validity, and all
c. Mechanisms of formation:   other circumstances
1) analogy with custom in municipal law
-“misleading and somewhat arbitrary -In most cases the element of acceptance is fulfilled
simplification” tacitly, only by means of a presumption based upon
-Fauchile: International custom arises like all various kinds of active or passive reactions to the
customs i.e. by repetition of actions in similar practice by the interested states.
situations
2) McDougal’s mechanism -Consensus is used mainly to facilitate the reaching
-a continuous process of raising mutual claims of an agreement during the phase of negotiations of
and the adoption of an attitude to such claims a draft preceding its final acceptance. No objections
by competent state organs (decision-makers) are raised since they are not binding anyhow.
-States advance through their organs unilateral
claims and the other states appraise these e. Role of certain factors in formation of custom:  
claims in terms of the interests of the world 1) international usage  
community and ultimately “accept them” (most i. “…is, or at least should be, considered as a sort
often only by means of tacit tolerance) or of qualified practice accepted, not as an expression
“reject them” (above all by means of protest). of law, but as a simple habit or, at most as a rule of
conduct of another kind: rules of comity,
  international morality, etc.”

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i. brings about an “enormous intensification of


2) international agreements   international intercourse by multiplication of contacts
i. WARNING: a treaty can never of itself lead to the between states, and, in general, a rapid development
formation of an international custom. of international practice.”
(a) It is an outcome of the active will of states to
create mutual rights and obligations of 8) UN Gen Assembly Resolutions | 2 types:  
exclusively conventional character. (1)  acts  of  conduct  regulated  by  rules  of 
ii.  “Accession  by  way of custom”: Custom may procedure of organizations – only binding upon
extend the application of rules contained in a treaty the organization and its members
beyond the contracting States.
(a) Acceptance makes the treaty binding on (2) binding/unbinding decisions – the latter do
third States by way of custom, but the treaty not constitute evidence of acceptance of a practice
itself does not have legal effects for such as law, but only of the existence of a presumption
States. thereof by member-states

iii. Treaties may contribute to the formation of F. CASES 


customs as their elements: may constitute (1) North Sea Continental Shelf Cases (1969) 
custom-forming precedents, may be evidence of i.Lex lata- law as it is
practice. ii. Lex ferenda- law as it ought to be
iii. De lege ferenda- being on the basis of new law.
3) courts and tribunals  
i. a statement by the court that a certain rule applies iii. Universality  is not necessary to fulfill the
in settling a dispute involves a law-creating factor. requirement of generality of law. Generality merely
makes an assumption of consistency of general
ii. decision may affect the further development or practice.
extinction of a custom e.g. declaration that there is no
sufficient evidence for admission of the existence of a iv. On why the equidistance principle is not
custom may paralyze development normcreating, the ICJ said:
1. the primary rule is that there must be an
4) opinions of publicists   agreement among the parties as to how to delimit.
i. consists of the analysis of facts and opinions and in Equidistance is relegated to a secondary position
drawing conclusions on binding customary rules and as a rule;
on trends in their evolution…(which) involves
unrestricted supplementation of elements lacking. 2. the parties may derogate from the equidistance
principle by agreement;
5) national law  
i. may be a serious factor in fields concerning both 3. art. 12 of the convention gives states the right to
national and international relations may initiate reserve unilaterally, hence they can refuse to agree
international practice to the principle;

6) the rise of the great powers   4. special circumstances may be taken into
i. power, wealth, sheer size, and George W. Bush consideration, such as irregular coastlines.
ii. presumed acceptance of great powers frequently
has a decisive effect iv. Magi- by its very nature, a customary or general
law should not be subject to reservation because this
7) practice of international organizations   type of law should operate with equal force on every
state.

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iv. Although the ICJ concedes that there may be


v. On  Opinio  Juris  (recognition of a practice as customary norms merely on a regional scope or
legally binding)- Denmark and the Netherlands application as contended by Colombia, the court said
contend that proof of general practice should also be Colombia nonetheless failed to prove the existence of
taken as proof of opinio juris. However, the ICJ’s such rule and failed to show that Peru was bound.
stand is that opinio juris must be proved separately
because it could happen that states enter into c. General Principles of Law  
agreement merely for expediency. [Brownlie, Principles of Public International Law: 
https://files.pca-cpa.org/pcadocs/bi-c/2.%20Canada/4.
vi. On General Practice- it must be extensive and %20Legal%20Authorities/RA-58%20-%20Principles%
consistent. The duration of time involved is not 20of%20Public%20International%20Law,%20Brownli
decisive by itself. e,%207th%20edition,%20Sources%20of%20Law.pdf]

(2)  Case  Concerning  Military  and  Paramilitary  1. a. Article 38(1), International Court of Justice 


Activities In and Against Nicaragua (1986)  (ICJ) Statute  
i. Even if customary norms have been codified, they  1. The  Court, whose function is, to decide in
do not cease to exist as customary norms, even to accordance with international law such disputes as
states parties to the convention. CIL continues to are submitted to it, shall apply:  
apply separately from IL even when the two have an c. the general principles of law recognized by
identical content. civilized nations

ii. Nicaragua laid down a limitation to the North Sea 2. General Principles are sources which comes after
holding when the ICJ here said: there are practices of those depending more immediately on the consent of
states that by their very nature may exhibit on their the states and yet escapes classification as a
face, opinio juris. “subsidiary means in par. (d).

iii. Magi- if you combine the 2 elements (general 3. Brownlie preferred the view of Oppenheim: “The


practice and opinio juris), it  will  give  you  the  intention is to authorize the Court to apply the general
juridical nature of the practice of law. So it seems principles of municipal jurisprudence, in particular, of
that the emphasis of art. 38 (b) is the juridical private law, in so far as they are applicable to
character of practice and therefore the emphasis is on relations of States.
opinio juris confirmed by general practice.
4. International tribunals have employed elements of
(3) Asylum Case (1950)  legal reasoning and private law analogies in order to
i.  Territorial  asylum-  there is no derogation of make the law of nations a viable system for
sovereignty of the host state (the state to which the application in a judicial process. An international
offender escaped or sought asylum) tribunal chooses, edits, and adapts elements from
better developed systems: the result is a new element
ii.  Diplomatic  asylum-  asylum is given by the of IL the content of which is influenced historically and
embassy of a foreign power in the territory of the host logically by domestic law.
state
5.  GENERAL  PRINCIPLES  OF  LAW  IN  THE 
iii.  ICJ:  diplomatic asylum is a derogation of the PRACTICE OF TRIBUNALS 
general rule, therefore it was incumbent upon i. Arbitral tribunals 
Colombia to show that this rule exists and that is a. Arbitral tribunals have frequently resorted to
binds Peru. Colombia failed in this respect. municipal analogies.Reliance was also

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placed on general principles of law in the a. Arbitral tribunals


assessment of damages. b. Reference to Arbitral Awards by the ICJ and
its predecessor
ii.  The  International  Court  of  Justice  and  its  c. Decisions of the ICJ and its predecessor
predecessor  d. Judicial Precedent and the statute of the
a. The Court has used this source sparingly, court
and it normally appears, without any formal -The decision of the Court has no binding
reference or label, as a part of judicial force except between the parties and in
reasoning. respect of that particular case. [Article 59,
b. The Court has an occasion referred to UN Charter ]
general notions of general responsibility. In a
number of case, the principle of estoppel or -1. Whenever the construction of a
acquiescence (preclusion) has been relied convention to which states other than those
on by the Court, and on occasion, general concerned in the case are parties is in
references to abuse of rights and good faith. question, the Registrar shall notify all such
c. The most frequent and successful use of states forthwith.
domestic law analogies has been in the field
of evidence, procedure and jurisdictional 2. Every state so notified has the right to
questions. intervene in the proceedings; but if it uses
this right, the construction given by the
6. GENERAL PRINCIPLES OF IL  judgment will be equally binding upon it.
i. May refer to rules of customary law, to general [Article 63, UN Charter]
principles of law as in Art 38 (1)(c), or to logical
propositions resulting from judicial reasoning on **Strictly speaking, the Court does  not 
the basis of existing IL and municipal analogies. observe  a  doctrine  of  precedent,  but
strives nevertheless for consistency.
ii. Ex:
-Principles of consent -1. The Court may give an advisory opinion
-Reciprocity on any legal question at the request of
-Equality of awards and settlements whatever body may be authorized by or in
-The legal validity of agreements accordance with the Charter of the United
-Good faith Nations to make such a request.
-Domestic jurisdiction &
-freedom of the seas 2. Questions upon which the advisory
opinion of the Court is asked shall be laid
C. Material sources   before the Court by means of a written
a.  Judicial  Decisions  and  Teachings  of  Highly  request containing an exact statement of the
Qualified Publicists   question upon which an opinion is required,
  and accompanied by all documents likely to
1. JUDICIAL DECISIONS  throw light upon the question. [Article 65 ,
i.  Decisions  of  International  Tribunals: In some UN Charter]
instance, regarded as authoritative evidence of the
state of law, and the practical label “subsidiary ii. Decisions of the Court of Justice of European
means” in Art 38 (1)(d) is not to be exaggerated. A Communities
coherent body of jurisprudence will naturally have iii. Decisions of National Courts
important consequences for the law. iv. Ad hoc international Tribunals

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a. Tribunals set by agreement between a number of ICJ Statute, 38.  


states, for some ad hoc purpose, may produce 1.  The  Court,  whose function is to decide in
valuable pronouncements on delicate issues, much accordance with international law such disputes as
depending on the status of the tribunal and its are submitted to it, shall apply:  
members and the conditions under which it does a. international conventions, whether general
work. or particular, establishing  rules  expressly 
recognized by the contesting states;  
v. Municipal Courts and disputes between parts of b.  international  custom,  as evidence of a
composite states general practice accepted as law;
a. The SC of the US, the Swiss Federal Court, and c. the general principles of law recognized by
the Staatsgerichtshof of the Weimar republic have civilized nations;
had occasion to decide disputes between members d. subject to the provisions of Article 59, judicial 
of the federal communities involved on the basis of decisions  and the  teachings  of  the  most 
doctrines of IL. highly  qualified  publicists  of  the  various 
nations, as subsidiary means for the
b. The practice of the first of these is of importance determination of rules of law.
in view of the fact that the US has its origin in a
union of independent states and this gives an 2. This provision shall not prejudice the power of the
international element to its internal relations. Court to decide a case ex aequo et bono, if the
parties agree thereto.
vi. Pleadings in cases before intl tribunals
- This enumeration is not the only sources of IL. It is
2. WRITINGS OF PUBLICISTS  merely an enumeration of what the ICJ shall apply
i. This source only constitutes evidence of the law,
but in some subjects some writers have had a - There is a hierarchy:  
formative influence. i.e., Gidel on laws of the seas. [a-c] are primary means while
[d] is subsidiary means.  
ii. Subjective factors enter into any assessment of
juristic opinion, that individual writers reflect national -Don’t use [d] unless you have no other source
and other prejudices, and further, that some publicists - A,B, and C can overlap. For example, genocide.
see themselves to be propagating new and better
views rather than providing a passive appraisal of the E. Ex aequo et bono  
law. 1. Concept of Ex aequo et bono (Art. 38, Statute of 
the International Court of Justice  
iii. Sources analogous to the writings of publicists, i. Ex Aequo Et Bono (Latin term): what is just and
and at least, authoritative, are the: fair or according to equity and good conscience.
-draft articles produced by the ILC (Intl Law
Commission), ii. Something to be decided ex aequo et bono is
-reports and secretariat memoranda prepared for the something that is to be decided by principles of what
commission is fair and just.
-Harvard research drafts
-the basis of discussion of the Hague codification iii. A decision-maker who is authorized to decide ex
Conference of 1930; & aequo et bono is not bound by legal rules but may
-the reports and resolutions of the Institute IL & other take account of what is just and fair.
expert bodies.
iv. Most legal cases are decided on the strict rule of
D. Hierarchy of Norms   law. i.e., a contract will be enforced by the legal

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system no matter how unfair it may prove to be. But a


case to be decided ex aequo et bono, overrides the  (4) General principles common to the major legal
strict rule of law and requires instead a decision  systems, even if not incorporated or reflected in
based on what is fair and just under the given  customary law or international agreement, may be
circumstances.   invoked as supplementary rules of international law
where appropriate.
v. It is a term often used in international law when a
matter is to be decided according to principles of I. COMMENTS & ILLUSTRATIONS:  
equity rather than by points of law. Article 38(2) of the Comment:  
Statute of the International Court of Justice provides a. (omitted…)
that the court may decide cases ex aequo et bono, if b. Practice as customary law.
the parties agree thereto. i. "Practice  of states," Subsection (2), includes
diplomatic acts and instructions as well as public
vi. In the context of arbitration, it refers to the power  measures and other governmental acts and official
of the arbitrators to dispense with consideration  statements of policy, whether they are unilateral or
of the law and consider solely what they consider  undertaken in cooperation with other states, for
to be fair and equitable in the case at hand. example in organizations such as the Organization
for Economic Cooperation and Development
vii. Article 33 of the United Nations Commission on (OECD).
International Trade Law's Arbitration Rules (1976)
provides that the arbitral tribunal should decide as ex ii. Inaction may constitute state practice, as when a
aequo et bono only if the parties have expressly  state acquiesces in acts of another state that affect
authorized the arbitral tribunal to do so and if the  its legal rights.
law applicable to the arbitral procedure permits 
such arbitration.   iii. The practice necessary to create customary law
may be of comparatively short duration, but under
Magallona (2005), pp. 9-33 Subsection (2) it must be "general and consistent."

Section 102, American Third Restatement iv. A practice can be general even if it is not
§ 102 Sources of International Law   universally followed; there is no precise formula to
(1) A rule of international law is one that has been indicate how widespread a practice must be, but it
accepted as such by the international community of should reflect wide acceptance among the states
states particularly involved in the relevant activity.
(a) in the form of customary law;
(b) by international agreement; or v. Failure of a significant number of important states
(c) by derivation from general principles common to to adopt a practice can prevent a principle from
the major legal systems of the world. becoming general customary law though it might
become "particular customary law" for the
(2) Customary international law results from a general participating states. See Comment e. A principle of
and consistent practice of states followed by them customary law is not binding on a state that
from a sense of legal obligation. declares its dissent from the principle during its
development. See Comment d.
(3) International agreements create law for the states
parties thereto and may lead to the creation of c. Opinio juris.
customary international law when such agreements i. For a practice of states to become a rule of
are intended for adherence by states generally and customary international law it must appear that 
are in fact widely accepted.

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the states follow the practice from a sense of 
legal obligation (opinio juris sive necessitatis); iii. Such special customary law may be seen as
essentially the result of tacit agreement among the
ii. a practice that is generally followed but which parties.
states feel legally free to disregard does not
contribute to customary law. f. International agreement as source of law.  
i. An international agreement creates obligations
iii. A practice initially followed by states as a matter binding between the parties under international law.
of courtesy or habit may become law when states See § 321.
generally come to believe that they are under a
legal obligation to comply with it. It is often difficult ii. Ordinarily, an agreement between states is a
to determine when that transformation into law has source of law only in the sense that a private
taken place. contract may be said to make law for the parties
under the domestic law of contracts. Multilateral
iv. Explicit evidence of a sense of legal obligation agreements open to all states, however, are
(e.g., by official statements) is not necessary; opinio increasingly used for general legislation, whether to
juris may be inferred from acts or omissions. make new law, as in human rights (Introduction to
Part VII), or for codifying and developing customary
d. Dissenting views and new states.   law, as in the Vienna Convention on the Law of
i. Although customary law may be built by the Treaties.
acquiescence as well as by the actions of states
(Comment b) and become generally binding on all iii. For the law of international agreements, see Part
states, in  principle  a  state  that  indicates  its  III. "International  agreement"  is defined in §
dissent from a practice while the law is still in the 301(1). International agreements may contribute to
process of development is not bound by that rule  customary law. See Comment i. g.
even after it matures.
iv. Binding resolutions of international
ii. Historically, such dissent and consequent organizations. Some international agreements that
exemption from a principle that became general are constitutions or charters of international
customary law has been rare. See Reporters' Note organizations confer power on those organizations
2. As to the possibility of dissent from peremptory to impose binding obligations on their members by
norms (jus cogens), see Comment k. resolution, usually by qualified majorities.

iii. A state that enters the international system after v. Such obligations derive their authority from the
a practice has ripened into a rule of international international agreement constituting the
law is bound by that rule. organization, and resolutions so adopted by the
organization can be seen as "secondary sources"
e. General and special custom.   of international law for its members. For example,
i. The practice of states in a regional or other the International Monetary Fund may prescribe
special grouping may create "regional," "special," or rules concerning maintenance or change of
"particular" customary law for those states inter se. exchange rates or depreciation of currencies. See §
821. The International Civil Aviation Organization
ii. It must be shown that the state alleged to be may set binding standards for navigation or
bound has accepted or acquiesced in the custom qualifications for flight crews in aviation over the
as a matter of legal obligation, "not merely for high seas.
reasons of political expediency." Asylum Case
(Colombia v. Peru), [1950] I.C.J. Rep. 266, 277.

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vi. For resolutions of international organizations that in customary law. If an international agreement is
are not binding but purport to state the international declaratory of, or contributes to, customary law, its
law on a particular subject, see § 103, Comment c. termination by the parties does not of itself affect
the continuing force of those rules as international
h. The United Nations Charter.   law. However, the widespread repudiation of the
i. The Charter of the United Nations has been obligations of an international agreement may be
adhered to by virtually all states. Even the few seen as state practice adverse to the continuing
remaining non-member states have acquiesced in force of the obligations. See Comment j.
the principles it established. The Charter provisions
prohibiting the use of force have become rules of j.  Conflict  between international agreement and 
international law binding on all states. Compare customary law.
Article 2(6). See § 905, Comment g i. Customary law and law made by international
agreement have equal authority as international
ii. In the event of a conflict between the obligations law. Unless the parties evince a contrary intention,
of the Members of the United Nations under the a rule established by agreement supersedes for
present Charter and their obligations under any them a prior inconsistent rule of customary
other international agreement, their obligations international law.
under the present Charter shall prevail.
ii. However, an agreement will not supersede a
iii. Members seem to have read this article as prior rule of customary law that is a peremptory
barring them from making agreements inconsistent norm of international law; and an agreement will not
with the Charter, and have refrained from making supersede customary law if the agreement is invalid
such agreements. See, e.g., Article 7 of the North because it violates such a peremptory norm. See
Atlantic Treaty, 1949, 63 Stat. 2241, T.I.A.S. No. Comment k.
1964, 34 U.N.T.S. 243; Article 102 of the Charter of
the Organization of American States, 1948, 2 iii. A new rule of customary law will supersede
U.S.T. 2394, T.I.A.S. No. 2361, 119 U.N. T.S. 3. inconsistent obligations created by earlier
And see Comment k. agreement if the parties so intend and the intention
is clearly manifested. Thus, the United States and
i.  International  agreements  codifying  or  many other states party to the 1958 Law of the Sea
contributing to customary law.   Conventions accept that some of the provisions of
i. International agreements constitute practice of those conventions have been superseded by
states and as such can contribute to the growth of supervening customary law. See Introductory Note
customary law under Subsection (2). See North to Part V.
Sea Continental Shelf Cases (Federal Republic of
Germany v. Denmark & Netherlands), [1969] I.C.J. k.  Peremptory  norms  of  international  law  (jus 
Rep. 3, 28-29, 37-43. cogens).  
i. Some rules of international law are recognized by
ii. Some multilateral agreements may come to be the international community of states as
law for non-parties that do not actively dissent. That peremptory, permitting no derogation. These rules
may be the effect where a multilateral agreement is prevail over and invalidate international agreements
designed for adherence by states generally, is and other rules of international law in conflict with
widely accepted, and is not rejected by a significant them.
number of important states.
ii. Such a peremptory norm is subject to
iii. A wide network of similar bilateral arrangements modification only by a subsequent norm of
on a subject may constitute practice and also result international law having the same character. It is

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generally accepted that the principles of the United may sometimes convert such a principle into a rule
Nations Charter prohibiting the use of force of customary law.
(Comment h) have the character of jus cogens. See
§ 331(2) and Comment e to that section. m. Equity as general principle.  
i. Reference to principles of equity, in the sense of
l. General principles as secondary source of law.   what is fair and just, is common to major legal
i. Much of international law, whether customary or systems, and equity has been accepted as a
constituted by agreement, reflects principles principle of international law in several contexts.
analogous to those found in the major legal See, e.g., the delimitation of coastal state zones, §
systems of the world, and historically may derive 517.
from them or from a more remote common origin.
See Introductory Note to Chapter 1 of this Part and ii. That principle is not to be confused with
Reporters' Note 1 to this section. references to "equity," and distinctions between law
and equity as separate bodies of law, in traditional
ii. General principles common to systems of Anglo-American jurisprudence.
national law may be resorted to as an independent
source of law. That source of law may be important iii. Reference to equity as a principle incorporated
when there has not been practice by states into international law is also to be distinguished
sufficient to give the particular principle status as from the power, conferred on the International
customary law and the principle has not been Court of Justice in Article 38(2) of the Statute (and
legislated by general international agreement. on other tribunals in numerous arbitration
agreements), to decide cases ex aequo et bono if
iii. General principles are a secondary source of the parties agree thereto, which permits the Court
international law, resorted to for developing to settle a case without being confined to principles
international law interstitially in special of law. See § 903, Reporters' Note 9.
circumstances. For example, the passage of time
as a defense to an international claim by a state on REPORTERS NOTES:  
behalf of a national may not have had sufficient 1.  Statute  of  International Court of Justice and 
application in practice to be accepted as a rule of sources of law.  
customary law. i. This section draws on Article 38(1) of the Statute
of the International Court of Justice, a provision
iv. Nonetheless, it may be invoked as a rule of commonly treated as an authoritative statement of
international law, at least in claims based on injury the "sources" of international law.
to persons (Part VII), because it is a general
principle common to the major legal systems of the ii. The Statute of the International Court of Justice
world and is not inappropriate for international does not use the term "sources," but this
claims. Restatement follows common usage in
characterizing customary law, international
v. Other rules that have been drawn from general agreements, and general principles of law as
principles include rules relating to the administration "sources" of international law, in the sense that they
of justice, such as the rule that no one may be are the ways in which rules become, or become
judge in his own cause; res judicata; and rules of accepted as, international law.
fair procedure generally. General principles may
also provide "rules of reason" of a general iii. International lawyers sometimes also describe
character, such as acquiescence and estoppel, the as "sources" the "judicial decisions and the
principle that rights must not be abused, and the teachings of the most highly qualified publicists of
obligation to repair a wrong. International practice the various nations," mentioned in Article 38(1) (d)

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of the Statute of the Court, supra. Those, however, international law essentially depends on the
are not sources in the same sense since they are consent of states. See Introduction to Part I,
not ways in which law is made or accepted, but Chapter 1.
opinion-evidence as to whether some rule has in
fact become or been accepted as international law. vi. Refusal of states to adopt or acquiesce in a
See § 103. practice has often prevented its development into a
principle of customary law, but instances of dissent
2. Customary law.   and exemption from practice that developed into
i. No definition of customary law has received principles of general customary law have been few.
universal agreement, but the essence of
Subsection (2) has wide acceptance. See generally vii. An entity that achieves statehood becomes
Parry, The Sources and Evidences of International subject to international law (§ 206), notably
Law (1965). customary law as it had developed. After the
Second World War, many new states came into
ii. Perhaps the sense of legal obligation came existence within a brief period. Their spokesmen
originally from principles of natural law or common rhetorically asked why they should be bound by
morality, often already reflected in principles of law preexisting law created by European, Christian,
common to national legal systems (see Comment imperialistic powers. In fact, however, the basic
l); practice built on that sense of obligation then principles of customary law were accepted, with
matured into customary law. new states joining in the process of law-making,
and seeking desired changes in the law through
iii. Earlier definitions implied that establishment of accepted procedures, notably by international
custom required that the practice of states continue agreements codifying, developing, and sometimes
over an extended period of time. That requirement modifying the law.
began to lose its force after the Second World War,
perhaps because improved communication made 3.  Binding  resolutions  of  international 
the practice of states widely and quickly known, at organizations.
least where there is broad acceptance and no or i. Comment g refers to prescriptive decisions, such
little objection. as those of the International Monetary Fund, or
binding resolutions such as those of the Security
iv. The development of customary law has been Council pursuant to Chapter VII of the United
described as part of a "process of continuous Nations Charter, which have the effect of law for
interaction, of continuous demand and response," members of the organization.
among decision-makers of different states. These
"create expectations that effective power will be ii. The United States has recognized the binding
restrained and exercised in certain uniformities of character of such resolutions, for example, the
pattern. . . . The reciprocal tolerances . . . create the resolution imposing an embargo on products of
expectations of patterns and uniformity in decision, Southern Rhodesia. See 22 U.S.C. § 287c. Many
of practice in accord with rule, commonly regarded other organs of international organizations have
as law." McDougal, "The Hydrogen Bomb Tests limited authority to impose some binding
and the International Law of the Sea," 49 Am.J. Int'l obligations, for example to determine the budget
L. 357-58 (1955). and the "dues" of each member. See, for example,
the authority of the United Nations General
v. That a rule of customary law is not binding on Assembly under Article 17 of the Charter.
any state indicating its dissent during the
development of the rule (Comment d) is an
accepted application of the traditional principle that

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iii. A number of international organizations have i. An international agreement may declare that it
authority to recommend rules but states are not merely codifies preexisting rules of customary
compelled to adopt them. international law. Such a declaration is evidence to
that effect but is not conclusive on parties to the
4.  Conflict  between  customary  law  and  agreement.
international agreement.  
i. A subsequent agreement will prevail over prior ii. The recent "codification treaties" adopted under
custom, except where the principle of customary United Nations auspices declare that their aim is
law has the character of jus cogens, but an both codification and progressive development,
agreement is ordinarily presumed to supplement thus leaving open whether a particular provision is
rather than to replace a customary rule. declaratory of old law or a formulation of new law.
See, for example, the Vienna Convention on the
ii. Provisions in international agreements are Law of Treaties, Introductory Note to Part III. Even
superseded by principles of customary law that such a declaration is evidence that the agreement
develop subsequently, where the parties to the reflects existing law in some respects, and as to
agreement so intend, in which case the earlier these the declaration may itself be viewed as a
provision in the agreement is deemed to have form of state practice confirming the customary
expired by mutual agreement or by desuetude. international law. Of course, states may disagree
as to whether the agreement as a whole or a
iii. If an international agreement provides for particular provision reflects existing law. See
denunciation, it will ordinarily be assumed that the generally Baxter, "Treaties and Custom," 129
agreement was not intended to be replaced by Recueil des Cours 25 (1970).
subsequent custom unless the parties denounce
the earlier agreement. See Akehurst, "The 6. Peremptory norms (juscogens).  
Hierarchy of the Sources of International Law," 47 i. It is now widely accepted, however, as a principle
Brit.Y.B.Int'l L. 273 (1974-75). of customary law (albeit of higher status). The
Vienna Convention requires that the norm (and its
iv. Modification of customary law by agreement is peremptory character) must be "accepted and
not uncommon, sometimes through bilateral recognized by the international community of
agreements, notably in the various multilateral States as a whole" (Art. 53).
codifications of recent decades, such as the Vienna
Convention on the Law of Treaties (see this ii. Apparently that means by "a very large majority"
Restatement, Part III), the conventions on of states, even if over dissent by "a very small
diplomatic and consular immunities (Part IV, § § number" of states.
464-70), and the conventions on the law of the sea
(Part V). iii. Although the concept of jus cogens is now
accepted, its content is not agreed. There is
v. There have been few instances of rules of general agreement that the principles of the United
customary law developing in conflict with earlier Nations Charter prohibiting the use of force are jus
agreements, but that may happen more frequently cogens. See Comment k;
as state practice responds to widespread political
demands, for example, when states adopted iv. It has been suggested that norms that create
200-mile exclusive resource zones in the sea, in "international crimes" and obligate all states to
effect superseding the 1958 Law of the Sea proceed against violations are also peremptory.
Conventions. See § 514. Such norms might include rules prohibiting
genocide, slave trade and slavery, apartheid and
5. Agreements codifying customary law.  

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other gross violations of human rights, and perhaps boundaries between the continental shelves and
attacks on diplomats. Compare § 702, Comment n. between the exclusive economic zones of states,
and the concept has been considered by
7. General principles.   international tribunals in that context.
i. It has become clear that this phrase refers to
general principles of law common to the major legal VCLT, art. 2(1); art. 34; art. 26
systems of the world. The general principles are Article 2 | Use of terms  
those common to national legal systems; the view 1. For the purposes of the present Convention:
of Soviet scholars that the reference is to principles (a) “treaty”  means an international agreement
of international law that have been accepted by concluded between States in written form and
states generally has not gained acceptance. governed by international law, whether embodied in
a single instrument or in two or more related
ii. In contrast, references to "general principles of instruments and whatever its particular designation;
international law" ordinarily mean principles
accepted as customary international law whether or (b) “ratification”, “acceptance”, “approval” and 
not they derive from principles common to national “accession” mean in each case the international
legal systems. Whether a general principle common act so named whereby a State establishes on the
to national legal systems is appropriate for international plane its consent to be bound by a
absorption by international law may depend on the treaty;
development of international law.
(c) “full powers” means a document emanating
iii. For example, there is now substantial from the competent authority of a State designating
international law on human rights (this a person or persons to represent the State for
Restatement, Part VII), and it is plausible to negotiating, adopting or authenticating the text of a
conclude that a rule against torture is part of treaty, for expressing the consent of the State to be
international law, since such a principle is common bound by a treaty, or for accomplishing any other
to all major legal systems. See § 702(d); § 701, act with respect to a treaty;
Reporters' Note 1.
(d) “reservation”  means a unilateral statement,
iv. In addition to being an independent though however phrased or named, made by a State, when
secondary source of law, general principles are signing, ratifying, accepting, approving or acceding
also supportive of other sources. That a principle is to a treaty, whereby it purports to exclude or to
common to the major legal systems may be modify the legal effect of certain provisions of the
persuasive in determining whether it has become a treaty in their application to that State;
rule of customary law or is implied in an
international agreement. (e) “negotiating State” means a State which took
part in the drawing up and adoption of the text of
8. Equity.   the treaty;
i. The principle of equity is frequently invoked in
discourse between states but there are few (f) “contracting State” means a State which has
references to equity as a legal principle in consented to be bound by the treaty, whether or not
international judicial decisions. One such reference the treaty has entered into force;
was in the Fisheries Jurisdiction Case (United
Kingdom v. Iceland), [1974] I.C.J. Rep. 3. (g) “party” means a State which has consented to
be bound by the treaty and for which the treaty is in
ii. "Equitable principles" have been explicitly force;
accepted as applicable in the delimitation of

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(h) “third State” means a State not a party to the


treaty; 6. The parties requested the Court to decide the
principles and rules of international law that are
(i) “international  organization”  means an applicable to the above delimitation because the
intergovernmental organization. parties disagreed on the applicable principles or rules
of delimitation.
General rule regarding third States A treaty does not
create either obligations or rights for a third State 7. Netherlands and Denmark relied on the principle of
without its consent. [Article 34 , VCLT] equidistance (the method of determining the
boundaries in such a way that every point in the
“Pacta  sunt  servanda”  : Every treaty in force is boundary is equidistant from the nearest points of the
binding upon the parties to it and must be performed baselines from which the breath of the territorial sea
by them in good faith. [Article 26, VCLT] of each State is measured).

CASES:  8. Germany sought to get a decision in favour of the


I. North Sea Continental Shelf Cases (ICJ, 1969)  
| notion that the delimitation of the relevant continental
(Germany/Denmark; Germany/Netherlands).   shelf was governed by the principle that each coastal
state is entitled to a just and equitable share
DOCTRINE:  (hereinafter called just and equitable
1. The jurisprudence of the North Sea Continental principle/method).
Shelf Cases sets out the dual requirement for the 
formation of customary international law:   9. Contrary to Denmark and Netherlands, Germany
(1) State practice (the objective element) and argued that the principle of equidistance was neither
(2) opinio juris (the subjective element). a mandatory rule in delimitation of the continental
shelf nor a rule of customary international law that
2. In these cases, the Court explained the criteria was binding on Germany.
necessary to establish State practice – widespread
and representative participation. It highlighted that the 10. The Court was not asked to delimit because the
practices of those States whose interests were parties had already agreed to delimit the continental
specially affected by the custom were especially shelf as between their countries, by agreement, after
relevant in the formation of customary law. the determination of the Court on the applicable
principles.
3. It also held that uniform and consistent practice
was necessary to demonstrate opinio juris – opinio Facts of the Case:  
juris is the belief that State practice amounts to a legal 1. Netherlands and Denmark had drawn partial
obligation. boundary lines based on the equidistance principle
(A-B and C-D).
4. The North Sea Continental Shelf Cases also
dispelled the myth that duration of the practice (i.e. 2. An agreement on further prolongation of the
the number of years) was an essential factor in boundary proved difficult because Denmark and
forming customary international law. Netherlands wanted this prolongation to take place
based on the equidistance principle (B-E and D-E)
5. The case involved the delimitation of the where as Germany was of the view that, together,
continental shelf areas in the North Sea between these two boundaries would produce an inequitable
Germany and Denmark and Germany and result for her.
Netherlands beyond the partial boundaries previously
agreed upon by these States.

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3. Germany stated that due to its concave coastline, RULING:  The use of the equidistance method had
such a line would result in her loosing out on her not crystallised into customary law and the method
share of the continental shelf based on proportionality was not obligatory for the delimitation of the areas in
to the length of its North Sea coastline. the North Sea related to the present proceedings.

4. The Court had to decide the principles and rules of RATIO: 


international law applicable to this delimitation. In 1. Article 6 of the Geneva Convention stated that
doing so, the Court had to decide if the principles unless the parties had already agreed on a method
espoused by the parties were binding on the parties for delimitation or unless special circumstances exist,
either through treaty law or customary international the equidistance method would apply. Germany had
law. signed, but  not  ratified, the Geneva Convention,
while Netherlands and Denmark were parties to the
Convention. The latter two States argued that while
Germany is not a party to the Convention (not having 
ratified it), she was still bound by Article 6 of the
Convention because:

“…(1) by conduct, by public statements and


proclamations, and in other ways, the Republic has
unilaterally assumed the obligations of the
Convention; or has manifested its acceptance of
the conventional regime; or has recognized it as
being generally applicable to the delimitation of
continental shelf areas…

(2) the Federal Republic had held itself out as so


assuming, accepting or recognizing, in such a
manner as to cause other States, and in particular
  Denmark and the Netherlands, to rely on the
ISSUE:   attitude thus taken up” (the latter is called the
Is Germany under a legal obligation to accept the principle of estoppel)
equidistance-special circumstances principle,
contained in Article 6 of the Geneva Convention on 2. The Court rejected the first argument. It said that
the Continental Shelf of 1958, either as a customary only a ‘very definite very consistent course of conduct
international law rule or on the basis of the Geneva on the part of a State would allow the Court to
Convention? NO presume that the State had somehow become bound
by a treaty (by a means other than in the formal
Nature of the treaty obligation: Is the 1958 Geneva manner: i.e. ratification) when the State was ‘at all
Convention, and in particular Article 6, binding on times fully able and entitled to…’ accept the treaty
Germany? NO commitments in a formal manner.

Nature  of  the  customary  international  law  The Court held that Germany had not unilaterally
obligation: Is Germany bound by the provisions of assumed obligations under the Convention. The court
Article 6 of the Geneva Convention in so far as they also took notice of the fact that even if Germany
reflect customary international law? NO ratified the treaty, she had the option of entering into
a reservation on Article 6, following which that
particular article would no longer be applicable to

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Germany (in other words, even if one were to assume (1) the status of the principle contained in Article 6 as
that Germany had intended to become a party to the it stood when the Convention was being drawn up;
Convention, it does not presuppose that it would have and
also undertaken those obligations contained in Article (2) its status after the Convention came into force.
6).
8. [(a)  What  was  the  customary  law  status  of 
3. Note: The Vienna Convention on the Law of Article 6 at the time of drafting the Convention?]
Treaties of 1969 (VCLT), which came into force in The Court held that the principle of equidistance, as
1980, discusses in more detail treaty obligations of contained in Article 6 did not form a part of existing or
third States (those States who are not parties to the emerging customary international law at the time of
treaty). It clearly stipulates that obligations arise for drafting the Convention. The Court supported this
third States from a provision of a treaty only if (1) the finding based on:
actual parties to the treaty intended the provision to (1) the hesitation expressed by the drafters of the
create obligations for third States; and (2) third State Convention, the International Law Commission, on
expressly accept those obligations in writing (Article the inclusion of Article 6 into the Convention and
35 of the VCLT). The VCLT was not in force when the (2) the fact that reservations to Article 6 was
Court deliberated on this case. However, as seen permissible under the Convention. The Court held:
above, the Court’s position is consistent the VCLT.
… Article 6 is one of those in respect of which, under
4. The Court held that the existence of a situation  the reservations article of the Convention (Article 12)
of  estoppel  would  have  allowed  Article  6  to  reservations may be made by any State on signing,
become  binding  on  Germany  –  but  held  that  ratifying or acceding, – for speaking generally, it is a
Germany’s action did not support an argument for  characteristic of purely conventional rules and
estoppel. The Court also held that the mere fact that obligations that, in regard to them, some faculty of
Germany may not have specifically objected to the making unilateral reservations may, within certain
equidistance principle as contained in Article 6, is not limits, be admitted; whereas this cannot be so in the
sufficient to state that the principle is now binding case of general or customary law rules and
upon it. 5. In conclusion, the Court held that Germany obligations which, by their very nature, must have
had not acted in any manner so as to incur equal force for all members of the international
obligations contained in Article 6 of the Geneva community, and cannot therefore be the subject of
Convention. The equidistance–special circumstances any right of unilateral exclusion exercisable at will by
rule was not binding on Germany by way of treaty any one of them in its own favor…. The normal
law. inference would therefore be that any articles that do
not figure among those excluded from the faculty of
6. Netherlands and Denmark argued that Article 6 reservation under Article 12, were not regarded as
also reflected ‘the accepted rule of general declaratory of previously existing or emergent rules of
international law on the subject of continental shelf law …” (see para 65 for a counter argument and the
delimitation’ and that it existed independently of the Court’s careful differentiation)
Convention. Therefore, they argued, Germany is
bound by the subject matter of Article 6 by way of
customary international law. 9. [(b)  Did  the  provisions  in  Article  6  on  the 
equidistance  principle  aain  the  customary  law 
7. To decide if the equidistance principle bound status after the Convention came into force? ] The
Germany by way of customary international law, the Court then examined whether the rule contained in
Court examined Article 6 had become customary international law
after the Convention entered into force – either due
the Convention itself (i.e., if enough States had

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ratified the Convention in a manner so as to fulfil the and should moreover have occurred in such a way as
criteria specified below), or because of subsequent to show a general recognition that a rule of law or
State practice (i.e. even if an adequate number of legal obligation is involved.”
States had not ratified the Convention, one could find
sufficient State practice to meet the criteria below). 13. [Opinio juris] Opinio juris is reflected in acts of
States or in omissions, in so far as those acts or
The Court held that Article 6 of the Convention had omissions were done following a belief that the said
not attained a customary law status. State is obligated by law to act or refrain from acting
in a particular way.
10. For a customary rule to emerge the Court held
that it needed: 14. The Court examined 15 cases where States had
(1) very widespread and representative participation delimited their boundaries using the equidistance
in the Convention, including States whose interests method, after the Convention came into force (paras.
were specially affected (in this case, they were 75 -77). The Court concluded that even if there were
coastal States) (i.e. generality); and some State practice in favour of the equidistance
(2) virtually uniform practice (i.e. consistent and principle, the Court could not deduct the necessary
uniform usage) undertaken in a manner that opinio juris from this State practice. The North Sea
demonstrates Continental Shelf Cases confirmed that both State
(3) a general recognition of the rule of law or legal practice (the objective element) and opinio juris (the
obligation (i.e. opinio juries). subjective element) are essential pre-requisites for
the formation of a customary law rule. This is
In the North Sea Continental Shelf cases the court consistent with Article 38 (1) (b) of the Statute of the
held that the passage of a considerable period of time ICJ. The Court explained the concept of opinio juris
was unnecessary (i.e. duration) for the formation of a and the difference between customs (i.e. habits) and
customary law. Widespread and representative customary law: “Not only must the acts concerned
participation amount to a settled practice, but they must also be
such, or be carried out in such a way, as to be
11. The Court held that the first criteria was not met. evidence of a belief that this practice is rendered
The number of ratifications and accessions to the obligatory by the existence of a rule of law requiring it.
Convention (39 States) were not adequately The need for such a belief, i.e, the existence of a
representative or widespread. subjective element, is implicit in the very notion of the
opinio juris sive necessitatis. The States concerned
12. [Duration] The Court held that the duration taken must therefore feel that they are conforming to what
for a customary law rule to emerge is not as important amounts to a legal obligation. The frequency, or even
as widespread and representative participation, habitual character of the acts is not in itself enough.
uniform usage, and the existence of an opinio juris. It There are many international acts, e.g., in the field of
held that: ceremonial and protocol, which are performed almost
“Although the passage of only a short period of time invariably, but which are motivated only by
(in this case, 3 – 5 years) is not necessarily, or of considerations of courtesy, convenience or tradition,
itself, a bar to the formation of a new rule of and not by any sense of legal duty.” (Para 77).
customary international law on the basis of what was  
originally a purely conventional rule, an indispensable 15. The Court concluded that the equidistance
requirement would be that within the period in principle was not binding on Germany by way of
question, short though it might be, State practice, treaty or customary international law. In the case of
including that of States whose interests are specially the laer, the principle had not attained a customary
affected, should have been both extensive and international law status at the time of the entry into
virtually uniform in the sense of the provision invoked force of the Geneva Convention or thereafter. As 

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such,  the  Court  held  that  the  use  of  the  (III) Did Colombia violate Article 1 and 2 (2) of the
equidistance  method  is  not  obligatory  for  the  Convention on Asylum of 1928 (hereinafter called the
delimitation of the areas concerned in the present  Havana Convention) when it granted asylum and is
proceedings.  the continued maintenance of asylum a violation of
[Source: the treaty?
https://ruwanthikagunaratne.wordpress.com/2014/03/
02/asylum-case-summary/] HELD: 
  (I) NO
II. Asylum Case (ICJ, 1950)   1. The court stated that in the normal course of
Overview:  granting diplomatic asylum a diplomatic
Colombia granted asylum to a Peruvian, accused of representative has the competence to make a
taking part in a military rebellion in Peru. provisional qualification of the offence (for example,
as a political offence) and the territorial State has the
Was Colombia entitled to make a unilateral and right to give consent to this qualification. In the Torre’s
definitive qualification of the offence (as a political case, Colombia has asserted, as the State granting
offence) in a manner binding on Peru and was Peru asylum, that it is competent to qualify the nature of
was under a legal obligation to provide safe passage the offence in a unilateral and definitive manner that
for the Peruvian to leave Peru? is binding on Peru. The court had to decide if such a
decision was binding on Peru either because of treaty
Facts of the Case:  law (in particular the Havana Convention of 1928 and
1.Peru issued an arrest warrant against Victor Raul the Montevideo Convention of 1933), other principles
Haya de la Torre “in respect of the crime of military of international law or by way of regional or local
rebellion” which took place on October 3, 1949, in custom.
Peru.
2. The court held that there was no expressed or
2. 3 months after the rebellion, Torre fled to the implied right of unilateral and definitive qualification of
Colombian Embassy in Lima, Peru. The Colombian the State that grants asylum under the Havana
Ambassador confirmed that Torre was granted Convention or relevant principles of international law
diplomatic asylum in accordance with Article 2(2) of (p. 12, 13). The Montevideo Convention of 1933,
the Havana Convention on Asylum of 1928 and which accepts the right of unilateral qualification, and
requested safe passage for Torre to leave Peru. on which Colombia relied to justify its unilateral
qualification, was not ratified by Peru. The
3. Subsequently, the Ambassador also stated Convention, per say, was not binding on Peru and
Colombia had qualified Torre as a political refugee in considering the low numbers of ratifications the
accordance with Article 2 Montevideo Convention on provisions of the latter Convention cannot be said to
Political Asylum of 1933 (note the term refugee is not reflect customary international law (p. 15).
the same as the Refugee Convention of 1951). Peru
refused to accept the unilateral qualification and 3. Colombia also argued that regional or local
refused to grant safe passage. customs support the qualification. The court held that
the burden of proof on the existence of an alleged
ISSUE:  customary law rests with the party making the
(I) Is Colombia competent, as the country that grants allegation:
asylum, to unilaterally qualify the offence for the “The Party which relies on a custom of this kind must
purpose of asylum under treaty law and international prove that this custom is established in such a
law? manner that it has become binding on the other
(II) In this specific case, was Peru, as the territorial Party… (that) it is in accordance with a (1) constant
State, bound to give a guarantee of safe passage? and uniform usage (2) practiced by the States in

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question, and that this usage is (3) the expression of it by refraining from ratifying the Montevideo
a right appertaining to the State granting asylum Conventions of 1933 and 1939, which were the first to
(Colombia) and (4) a duty incumbent on the territorial include a rule concerning the qualification of the
State (in this case, Peru). This follows from Article 38 offence [as “political” in nature] in matters of
of the Statute of the Court, which refers to diplomatic asylum.”
international custom “as evidence of a general
practice accepted as law(text in brackets added).” 6. The court concluded that Colombia, as the State
granting asylum, is not competent to qualify the
4. The court held that Colombia did not establish the offence by a unilateral and definitive decision, binding
existence of a regional custom because it failed to on Peru.
prove consistent and uniform usage of the alleged
custom by relevant States. The fluctuations and (II) NO
contradictions in State practice did not allow for the 7. The court held that there was no legal obligation on
uniform usage. The court also reiterated that the fact Peru to grant safe passage either because of the
that a particular State practice was followed because Havana Convention or customary law. In the case of
of political expediency and not because of a belief the Havana Convention, a plain reading of Article 2
that the said practice is binding on the State by way of results in an obligation on the territorial state (Peru) to
a legal obligation (opinio juris) is detrimental to the grant safe passage only after it requests the asylum
formation of a customary law: granting State (Colombia) to send the person granted
“[T]he Colombian Government has referred to a large asylum outside its national territory (Peru). In this
number of particular cases in which diplomatic asylum case the Peruvian government had not asked that
was in fact granted and respected. But it has not Torre leave Peru. On the contrary, it contested the
shown that the alleged rule of unilateral and definitive legality of asylum granted to him and refused to grant
qualification was invoked or … that it was, apart from safe conduct.
conventional stipulations, exercised by the States
granting asylum as a right appertaining to them and 8. The court looked at the possibility of a customary
respected by the territorial States as a duty incumbent law emerging from State practice where diplomatic
on them and not merely for reasons of political agents have requested and been granted safe
expediency. The facts brought to the knowledge of passage for asylum seekers, before the territorial
the Court disclose so much uncertainty and State could request for his departure. Once more, the
contradiction, so much fluctuation and discrepancy in court held that these practices were a result of a need
the exercise of diplomatic asylum and in the official for expediency and other practice considerations over
views expressed on various occasions, there has an existence of a belief that the act amounts to a legal
been so much inconsistency in the rapid succession obligation.
of conventions on asylum, ratified by some States “There exists undoubtedly a practice whereby the
and rejected by others, and the practice has been so diplomatic representative who grants asylum
much influenced by considerations of political immediately requests a safe conduct without awaiting
expediency in the various cases, that it is not possible a request from the territorial state for the departure of
to discern in all this any constant and uniform usage, the refugee…but this practice does not and cannot
mutually accepted as law, with regard to the alleged mean that the State, to whom such a request for
rule of unilateral and definitive qualification of the safe-conduct has been addressed, is legally bound to
offence.” accede to it.”

5. The court held that even if Colombia could prove (III) YES
that such a regional custom existed, it would not be
binding on Peru, because Peru “far from having by its 9. Article 1 of the Havana Convention states that “It is
attitude adhered to it, has, on the contrary, repudiated not permissible for States to grant asylum… to

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persons accused or condemned for common


crimes… (such persons) shall be surrendered upon 14. The court held:
request of the local government.” “In the case of diplomatic asylum the refugee is within
the territory of the State. A decision to grant
10. In other words, the person-seeking asylum must diplomatic asylum involves a derogation from the
not be accused of a common crime (for example, sovereignty of that State. It withdraws the offender
murder would constitute a common crime, while a from the jurisdiction of the territorial State and
political offence would not).The accusations that are constitutes an intervention in matters which are
relevant are those made before the granting of exclusively within the competence of that State. Such
asylum. Torre’s accusation related to a military a derogation from territorial sovereignty cannot be
rebellion, which the court concluded was not a recognised unless its legal basis is established in
common crime and as such the granting of asylum each particular case.”
complied with Article 1 of the Convention.
15. As a result, exceptions to this rule are strictly
11. Article 2 (2) of the Havana Convention states that regulated under international law. An exception to this
“Asylum granted to political offenders in legations, rule (asylum should not be granted to those facing
warships, military camps or military aircraft, shall be regular prosecutions) can occur only if, in the guise of
respected to the extent in which allowed, as a right or justice, arbitrary action is substituted for the rule of
through humanitarian toleration, by the usages, the law. Such would be the case if the administration of
conventions or the laws of the country in which justice were corrupted by measures clearly prompted
granted and in accordance with the following by political aims. Asylum protects the political offender
provisions: First: Asylum may not be granted except against any measures of a manifestly extra-legal
in urgent cases and for the period of time strictly character which a Government might take or attempt
indispensable for the person who has sought asylum to take against its political opponents… On the other
to ensure in some other way his safety.” hand, the safety which arises out of asylum cannot be
construed as a protection against the regular
12. An essential pre-requisite for the granting of application of the laws and against the jurisdiction of
asylum is the urgency or, in other words, the legally constituted tribunals. Protection thus
presence of “an imminent or persistence of a danger understood would authorize the diplomatic agent to
for the person of the refugee”. The court held that the obstruct the application of the laws of the country
facts of the case, including the 3 months that passed whereas it is his duty to respect them… Such a
between the rebellion and the time when asylum was conception, moreover, would come into conflict with
sought, did not establish the urgency criteria in this one of the most firmly established traditions of
case (pp. 20 -23). The court held: Latin-America, namely, non-intervention [for example,
“In principle, it is inconceivable that the Havana by Colombia into the internal affairs of another State
Convention could have intended the term “urgent like Peru]….
cases” to include the danger of regular prosecution to
which the citizens of any country lay themselves open 16. Asylum may be granted on “humanitarian grounds
by attacking the institutions of that country… In to protect political prisoners against the violent and
principle, asylum cannot be opposed to the operation disorderly action of irresponsible sections of the
of justice.” population.” (for example during a mob attack where
the territorial State is unable to protect the offender).
13. In other words, Torre was accused of a crime but Torre was not in such a situation at the time when he
he could not be tried in a court because Colombia sought refuge in the Colombian Embassy at Lima.
granted him asylum. The court held that “protection
from the operation of regular legal proceedings” was
not justified under diplomatic asylum.

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17. The court concluded that the grant of asylum and 2. Though a declaration accepting the mandatory
reasons for its prolongation were not in conformity jurisdiction of the Court was deposited by the United
with Article 2(2) of the Havana Convention (p. 25). States (D) in a 1946, it tried to justify the declaration
“The grant of asylum is not an instantaneous act in a 1984 notification by referring to the 1946
which terminates with the admission, at a given declaration and stating in part that the declaration
moment of a refugee to an embassy or a legation. “shall not apply to disputes with any Central American
Any grant of asylum results in, and in consequence, State….”
logically implies, a state of protection, the asylum is
granted as long as the continued presence of the 3. Apart from maintaining the ground that the I.C.J
refugee in the embassy prolongs this protection.” lacked jurisdiction, the States (D) also argued that
[Source: Nicaragua (P) failed to deposit a similar declaration to
https://ruwanthikagunaratne.wordpress.com/2014/03/ the Court.
02/asylum-case-summary/]
4. On the other hand, Nicaragua (P) based its
III.  Case  Concerning  Military  and  Paramilitary  argument on its reliance on the 1946 declaration
Activities  in  and  Against  Nicaragua  (US  v.  made by the United states (D) due to the fact that it
Nicaragua) (ICJ, 27 June 1986)  was a “state accepting the same obligation” as the
  United States (D) when it filed charges in the I.C.J.
Brief Fact Summary.   against the United States (D).
1. Nicaragua (P) brought a suit against the United
States (D) on the ground that the United States (D) 5. Also, the plaintiff intent to submit to the compulsory
was responsible for illegal military and paramilitary jurisdiction of the I.C.J. was pointed out by the valid
activities in and against Nicaragua. declaration it made in 1929 with the I.C.J’s
predecessor, which was the Permanent Court of
2. The jurisdiction of the International Court of Justice International Justice, even though Nicaragua had
to entertain the case as well as the admissibility of failed to deposit it with that court. The admissibility of
Nicaragua’s (P) application to the I.C.J. was Nicaragua’s (P) application to the I.C.J. was also
challenged by the United States (D). challenged by the United States (D).

NATURE OF THE CASE:  Issue.  


1. Nicaragua (P) brought a suit against the United (1) Is the jurisdiction to entertain a dispute between
States (D) on the ground that the United States (D) two states, if they both accept the Court’s jurisdiction,
was responsible for illegal military and paramilitary within the jurisdiction of the International Court of
activities in and against Nicaragua. The jurisdiction of Justice?
the International Court of Justice to entertain the case (2) Where no grounds exist to exclude the application
as well as the admissibility of Nicaragua’s (P) of a state, is the application of such a state to the
application to the I.C.J. was challenged by the United International Court of Justice admissible?
States (D).
HELD: 
Facts.   (1) Yes. The jurisdiction of the Court to entertain a
1. The United States (D) challenged the jurisdiction of dispute between two states if each of the States
the I.C.J when it was held responsible for illegal accepted the Court’s jurisdiction is within the
military and paramilitary activities in and against jurisdiction of the International Court of Justice. Even
Nicaragua (P) in the suit the plaintiff brought against though Nicaragua (P) declaration of 1929 was not
the defendant in 1984. deposited with the Permanent Court, because of the
potential effect it had that it would last for many years,
it was valid. Thus, it maintained its effect when

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Nicaragua became a party to the Statute of the I.C.J


because the declaration was made unconditionally
and was valid for an unlimited period. The intention of
the current drafters of the current Statute was to
maintain the greatest possible continuity between it
and the Permanent Court. Thus, when Nicaragua (P)
accepted the Statute, this would have been deemed
that the plaintiff had given its consent to the transfer
of its declaration to the I.C.J.

(2) Yes. When no grounds exist to exclude the


application of a state, the application of such a state
to the International Court of Justice is admissible. The
five grounds upon which the United States (D)
challenged the admissibility of Nicaragua’s (P)
application were that the plaintiff failed because there
is no “indispensable parties” rule when it could not
bring forth necessary parties, Nicaragua’s (P) request
of the Court to consider the possibility of a threat to
peace which is the exclusive province of the Security
Council, failed due to the fact that I.C.J. can exercise
jurisdiction which is concurrent with that of the
Security Council, that the I.C.J. is unable to deal with
situations involving ongoing armed conflict and that
there is nothing compelling the I.C.J. to decline to
consider one aspect of a dispute just because the
dispute has other aspects due to the fact that the
case is incompatible with the Contadora process to
which Nicaragua (P) is a party.

Discussion.  
Although the questions of jurisdiction and admissibility
are primarily based on the principle that the I.C.J. has
only as much power as that agreed to by the parties,
these can be quite complicated. The 1946 declaration
of the United States and the 1929 declaration of
Nicaragua was the main focus of the case on
declaration and each of these declarations pointed
out the respective parties’ intent as it related to the
I.C.J’s jurisdiction. i

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