PUBLIC INTERNATIONAL LAW intercourse natural law together for

or compact, and be, the common

CHAPTER 1 – GENERAL PRINCIPLES w/c can be indeed, an good.
discovered expression of
INTERNATIONAL LAW DEFINED. and it.
 ORIGINS recognized
 Runs concurrently with the development of sovereignty. by every
 Hugo Grotius and Alberico Gentili individual
o Characterized international law as municipal law writ large. through the
 By 19th century use of his
o Napoleonic Wars, the 1st major peace summit took place. reason and
o Followed by the early versions of several important treaties including those conscience
 establishing rules for the navigation of rivers Since Int’l law is not In case of Law is This belief can be
 establishing neutrality of Switzerland and Belgium individuals a law of conflict the therefore seen from the
 1st codified law on maritime warfare compose the subordination natural law considered communications
State whose but of prevails, necessary for the States make
 Kellogg Briand Pact, which sought to limit or abolish war.
will is but the coordination. being the the society to to each other;
 Creation of an early framework of rules regarding the recognition of States, and
collective more function and, communications
State responsibility. will of the fundamental because it is which notably
o The term international law was first formally used by Jeremy Bentham in 1870. inhabitants, law. necessary, it contain
the State also is ex substantial
 TRADITIONAL DEFINITION becomes hyphothesi reference to law
 Branch of public law which regulates the relations of States and of other entities which bound by the binding. and other legal
have been granted international personality. natural law. references.
 Subjects – entities that possess international personality and have rights and
obligations recognized under international law THEORIES OF INTERNATIONAL RELATIONS
 Objects – persons or things in respect of which rights are held and obligations
assumed by the subjects of international law. REALIST INSTITUTIONA NEOLIBERALIST DEMICRATIC HEGEMONIC
THEORY LIST THEORY THEORY PEACE STABILITY
 A body of customary and conventional rules w/c are considered legally binding by
THEORY THEORY
civilized states in their intercourse with each other (Oppenheim).

 MODERN DEFINITION States are The relation of States are geared Democratic Global system is
 Law that deals with the conduct of States and international organizations, their relations in a State are a product toward gains and states are likely to be
with each other and, in certain circumstances, their relations with persons, natural or constant of their interaction profits, therefore, generally stable when
juridical. struggle for not only among relations are often hesitant to go to controlled by a
power; themselves, but dependent on war with other single state
BASIS OF INTERNATIONAL LAW therefore, also with the whether the same democratic which would be
each State various institutions would be profitable states. known as the
NATURAL POSITIVIST ECLECTIC OTHER: BELIEF OF can be and hierarchical or not. Hegemon.
LAW SCHOOL OR UBI STATES reasonably structures in the
SCHOOL GROTIAN SOCIETAS assumed to global political
SCHOOL IBI JUS be acting sphere.
There is a Binding force In so far as it Law is Other cogent only in
natural and of international conforms to considered as argument for pursuit of
universal law is derived the dictates of the hallmark international law their
principle of from the right reason, of any is simply that it individual
right and agreement of the voluntary political exists because interests.
wrong, the States to be law may be community States believe it
independent bound by it. said to blend which intends exists.
of mutual with the to act
 INTERNATIONAL LAW AS TRUE LAW

AUSTINIA COMMAN INT’L LAW AMENDMENT APPLICAT ENFORCE

PUBLIC INTERNATIONAL LAW DISTINGUISHED FROM: N D AS LAW AND ION, MENT V.
DILEMMA THEORY ADJUDICATI ENFORCE ENFORCE
PRIVATE INT’L INT’L INT’L INT’L ON MENT ABILITY
INT’L LAW MORALITY COMITY DIPLOMACY ADMINISTRA AND
OR ETHICS TIVE LAW COMPLIA
As to nature, Principles Rules of Objects of Body of laws NCE
international vs. which govern politeness/cour international which regulate John Austin: Laws are True law Amendment The absence Actual
municipal; relations tesy observed policy and the the Laws are commands because are needed by of a central enforcement
as to of States from by States in conduct relations and commands of the despite the legal systems. lawmaking is irrelevant
remedies, the standpoint their relations of foreign activities of of the sovereign prevailing authority and to the
international of conscience, with other affairs. . national and sovereign authority belief that Int’l law unlike the binding
modes vs. local morality, States. international which and are int’l law does legislation, has debilitating quality of
tribunals; justice and agencies with receive the backed by not comply rules based on jurisdictional int’l law, as
as to parties, humanity. respect to their habitual sanction. with the consent. defects enforcement
international material and obedience of requirements weaken the is not what
entities vs. intellectual the members Those who of sovereign Thus, focus expectation is meant by
private persons; interests which of an subscribe to issuance, here is on self- of compliance the term law.
as to have received independent this theory compulsion, interest rather in comparison What is
enforcement, international political therefore see and penalty is than common with the material is
international recognition. society. int’l law as still has such good. situation in that int’l law
sanctions vs. merely a mechanism Adjudication is the domestic is
sheriff/police. Int’l law code of rules for also with plane. enforceable
Not really a does not of conduct enforcement consent. even though
branch of int’l follow of moral such as self- These it lacks of
law but is rather precept and force and is help, force, considerations police force
a part of lacks an simply collective are, however, or
domestic law effective positive action, and balanced by compulsory
dealing with enforcement international resort to UN. the risk of court.
disputes that mechanism. morality. political/
arise from economic
private retaliation
transaction and other
between sanctions,
individuals or such as
companies and adverse
corporations public
from one opinion,
country vis-à-vis retorsions,
their counter reprisals, the
parts in another UN
country machinery,
and the
conviction
that
obedience
will redound
to the public
good.
 RELATIONSHIP WITH MUNICIPAL LAW
HORIZONTAL
Int’l law is horizontal by nature
States are more or less on equal footing and
are generally unable to compel each other to
act.
VERTICAL
Domestic or municipal law is vertical
Municipal law, a hierarchy exists whereby
those on top can give commands to those
lower in the system.
 THEORY OF COORDINATION
 Although domestic law and international law are on 2 separate planes, they nevertheless
affect each other with regard to obligations.
 However, it is argued by Fitzamurice,
 That since the 2 systems lie on different fields, their interaction should nor bring them
into conflict with each other since they operate in 2 different spheres, with each being
supreme in its own field.

 INCORPORATION VS. TRANSFORMATION

MONIST DUALIST
there is no substantial distinction between IL ML INCORPORATION TRANSFORMATION
international law and municipal law Expressed in Sec. 2, Art. II, Philippine Requires the enactment by the legislative
not imposed but issued by a political Constitution, body of such int’l law principles as are
adopted by states as superior for “The Philippines Renounces war as an sought to be part of municipal law
a common rule of observance by those instrument of national policy, adopts the
action under its authority generally accepted principles of
is derived from such consists international law as part of the law of the
sources of enactments of the land & adheres to the policy of peace,
as international law-making equality, justice, freedom, cooperation and
customs, authority amity with all nations.
conventions or
general principles of
 Internationally speaking, the fact that a country follows the incorporation doctrine for a
law
customary international law does not automatically mean that the same follows for
applies to relations regulates
between relations of conventional international law or treaties.
states and individuals among  In PH, the only qualification in employing the doctrine of incorporation, in case of
international themselves treaties the same must be in conformity with the Constitution.
persons
they are resolved violations of ML are  CONFLICT BETWEEN INT’L LAW AND MUNICIPAL LAW
through stateto-state redressed through
transactions local On the domestic sphere, w/a local court International sphere, w/an int’l tribunal
judicial and deciding deciding
administrative If conflict is w/ Consti International law is superior to municipal
processes  uphold Consti law, because int’l law provides the standard
there is collective entail individual by w/c to determine the legality of a State’s
responsibility responsibility If conflict is w/statute: conduct
 doctrine of incorporation decrees
that rules of int’l law are given
 WRITTEN IN THE LAW equal standing w/, but not superior
 States that have written constitutions usually indicate the manner in which int’l law is to national legislative enactments.
treated in domestic courts.
 Generally covers only customs and principles but not treaties, since the latter usually A treaty may repeal a statute & a statute
still needs transformation. may repeal a treaty; thus, the principle of
lex posterior derogate priori, that w/c
 THE PRISM OF STATE PRACTICE comes last in time, will usually be upheld
by the municipal tribunal.
 Application of int’l law in the municipal law is better understood through prims of State
practice.
 Ex: in UK and US, domestic legislation or judgments trump customary int’l law; while
in Malaysia, customary law us already deemed incorporated in their jurisdiction.
 APPLICATION OF VIENNA CONVENTION ON THE LAW OF TREATIES  Law between parties, regardless of how many states are involved, it must always be
 Int’l law does not entirely ignore municipal law, the latter being used as evidence either remembered that a treaty becomes the law between the parties who gave their consent
of custom or general principles of law. thereto.
 Article 27 of the VCLT,  Although there are instances where States do not give their Consent are bound by
 “A party may not invoke the provision of its internal law as justification for its failure treaties, such as situation wherein a treaty is merely meant to codify existing practices
to perform a treaty”, municipal law cannot be used by a State as an excuse for non- regarding jus cogens, the general rule still stands that State are only bound to the
compliance with an obligation under international law. treaties they gave their consent to, and only to the extent by which they allowed
themselves to be bound.
 SOURCES OF INTERNATIONAL LAW
 In domestic sphere, the Constitution, legislative enactments, and case law (stare decisis) 2. International Customs
constitute such sources.  As evidence of a general practice accepted as binding law through persistent usage over
 On the international plane, it is a bit complicated because there is no body likened to a a long period of time.
national legislature, no fundamental law, and the doctrine of precedents is not  Custom must be:
applicable. a. Prevailing practice by a number of States;
b. Repeated over a considerable period of time; and
 Material and Formal Sources c. Attend by opinio juris or a sense of legal obligation.
 It is defines as a constant and uniform usage, accepted as law.
Material Source Formal Source  Custom may be general or regional
the substance of the law is derived Become the basis of the validity and force  In either case, the elements of custom must both exist and be proven.
of law.
 Two elements of custom which must concur are:
Ex:
1. State practice
While custom itself is a formal source of law, the State practice that was taking place even
2. Opinion juris
before such practice crystallized into custom can be considered as the material source.
 A sub-elements of State practice, the practice in question must be demonstrated
to have been
 Most authoritative enumeration is found in Article 38, Statute of International Court of a. General
Justice which provides that the Court, whose function is to decide in accordance with b. Uniform and
international law such disputes as are submitted to it, shall apply: c. Over a long enough period of time to enable it to crystallize.
 As Primary Sources:  Custom can be proven using a wide range of instruments including
1. International Treaties and Conventions, whether general or particular, a. diplomatic correspondence,
establishing rules expressly recognized by the contesting states. b. press releases,
a. Treaties may codify, crystallize, or create obligations. c. opinion or official legal advisers,
 Codification is done where the treaty merely complies existing obligations to d. executive decisions and practices,
facilitate simplicity, as in the case of the 1982 UNCLOS. e. judicial decisions,
 Crystallization is done to formalize as an obligation existing State practice, as in the f. legislation, and
case of the 1958 Geneva Continental Shelf Convention. g. resolutions of the UN General Assembly, among others.
 Creation is done where the treaty itself is the first time wherein such obligation was
created between the parties, as is usually the case in bilateral trade agreements.  Although a large number of state performing the same conduct may create a
 Treaties, just like domestic law are governed by the rules on Lex Posterior and Lex presumption that there is in fact a custom in existence, such presumption is not
Specialis. conclusive and may be rebutted with a wide range of evidence.
Lex Posterior Lex Specialis
A later treaty overrides a prior treaty in A more specific treaty should be  Baxter Paradox
case of incompatibility followed if in conflict with a more  As more and more States subscribe to a treaty, the understanding of the contemporary
general treaty. status of customary international law will decrease because the actions of States are
 Treaties may be bilateral or multilateral, depending on how many parties are already expressly guided by a real obligation under the treaty and not a mere sense of
involved. opinion juris.
Bilateral Multilateral
Usually for the regulation of Usually general in nature and establish  State Practice
particular consduct such as trade. common principles of law.  Consists not only of what States say or do but also what they fail to say or do.
  Has 3 sub-elements which are:
a. Generality
b. Uniformity
c. Duration
 Uniformity
 Although uniformity is required absolute uniformity by all States is not.
 Substantial Uniformity of a given practice among state is enough.
 Actual uniformity is not required provided that the practices of the State are extensive
and virtually uniform with one another.
 Held: some degree of uniformity amongst State practices is essential before a custom
can exist.
 Generality
 Given that a custom can be either general or regional, the practice under consideration
must be widespread among the States that are particularly involved in the relevant
activity.
 Thus universality of a given practice is not a requirement.
 Duration
 Although the length of time required for a practice to crystallize into State practices
varies from situation to situation.
 The time period must be long enough to show that other requirements are satisfied.
 Instant Custom
 Although scholars have been arguing for the existence of an instant custom,
especially in the aftermath of the 9/11 terrorist attacks, the ruling of the ICJ in North
Sea Continental Shelf Case 1969 should still be controlling indofar as it prescribes
that a length of time, regardless of how short, within which the other elements of
uniformity and generality are shown to exist, must still take place before a practice
can crystallize into State practice.
 Opinio Juris
 Constitute a State’s belief that it is acting due to a legal obligation.
 The fact that a State is acting in accordance with opinion juris is never presumed and
must always be proven.
 Legal Conundrum
 Should opinion juris precede State practice or should it already be present when the
practice is performed?
 Although this question has not yet been formally resolved, it must nevertheless be
understood that custom can only arise once both elements concur.
 Persistent Objector
 The mere existence of a custom may not necessarily be enough to bind States,
particularly those who qualify as persistent objectors.
 It is one who objects to the practice from the early stages of the practice and
maintains the said objection consistently.
 Exception to Persistent Objector
 Mere objection at the beginning is not enough for a State to claim it is a persistent
objector; a state cannot claim to be a persistent objector when the practice being
objected to has already attained status of jus cogens.
 Relationship between Treaty and Custom
 If there is a conflict between a treaty and a custom, a treaty is superior.
 The exception to this rule is if the custom involved in jus cogens.
 Also, a treaty may create custom, provided it was intended to be norm-creating, and a
State may be bound by both a treaty and a custom at the same time insofar as they do
not conflict with each other.
 The mere fact that a custom is enshrined in a treaty does not prohibit the Court from
entertaining a claim seeking relief base on violation of custom.
C. GENERAL PRINCIPLES OF LAW.
These rules are derived mainly from natural law, observed and recognized by civilized nations
Example:
1. Res judicata
2. Prescription
3. Pacta sunt servanda
4. Estoppel
Agustin vs edu: where the doctrine of pacta sunt servanda was applied by the Court relative to
the validity of the administrative rules requiring the use of early warning device, as part of the
Vienna Convention of Road Signs and Signals.
I. DEFINITION
General principles of law
 Proposition of law that are so fundamental that they are found in almost all legal
systems.
 Separate source of law from both treaty and custom\
II. PURPOSE
 To combat the problem of non-liquet( or the absence of any source of law of
obligation to point to in order to resolve the conflict)
 As such, even absent a particular treaty or custom, the Court may not renege on its
duty to decide a case since it is allowed to rule on the matter on the basis of general
principles of law.
III. SCOPE
The decisions of the ICJ seem to learn towards general principles of law encompassing both
private law and public law concept.
  Advisory opinion on the effect of awards of compensation made by the UN Can judicial decision which has all the elements of customs be considered
Administrative tribunal: ICJ acknowledge the principle of res judicata customary?
 Temple of Preah Viheae Caw” ICj used the principle of estoppel in finding Thailand to
have recognized Cambodia’s sovereignty over disputed territory. IV. JUDICIAL CONSISTENCY
 Corfu Channel Case: where circumstantial evidence, in the absence of direct evidence, Despite the general inapplicability of res judicata with regard to decisions of
was used to ascertain whether or not Albania was liable for the sinking of British Ships international tribunals, these tribunals nevertheless follow the rule on judicial
 Status of Eastern Carelia Case: PCIV ruled that it could not rule on the matter because consistency.
it did not have jurisdiction over Russia who was the respondent. - Provides that as much as possible, rulings should not deviate from a;ready
 Chorzow Factory case: PCIJ used the principle that taking requires compensation to be settled matters except when necessary.
valid when it decided a case involving damages
 Separate Opinion of Justice McNair in the advisory opinion in the international status V. LOCAL JURISPRUDENCE
of the South West Africa: the general principle of trusts was discussed in relation to the From the viewpoint of international law. municipal law, including legal decisions of
advisory opinion domestic courts, are merely facts from which can be inferred the will of the State
 Liamco vs Libya: the general principle of equity as used in determining the amount of and its activities
damages.
NOTE: to these may be added the principle of ex aequo et bono ( what is good and just), VI. JUDICIAL COURTESY
When it is requested for an opinion regarding a matter that is subject of a pending
provided that the parties to the dispute agree thereto, as provided in Art 38(1) Statute of the
International Court of Justice case, if the result will materially affect the decision in the pending case, the ICJ will
not hesitate to decline the request for an opinion.
 This must not be confused with the principle of equity since equity is a part of the
judicial function and can be applied at any time, whereas the principle of ex aequo et
B. WRITINGS OF PUBLICISTS
bono, which considers only socio-economic and political considerations, may only be
 Must be fair and unbiased representation of international law by acknowledged
applied when asked for by the parties.
authorities in the field.
AS SECONDARY SOURCES
I. PUBLICISTS
A. JUDICIAL DECISIONS
 Particular class of learned scholar whose writings are regarded as being persuasive
Generally of international tribunals, the most authoritative being the INTERNATIONAL
sources of international law.
COURT OF JUSTICE.
 Although they are merely considered as subsidiary sources of international law, they
They are not really sources but “subsidiary means” for finding what the law is, and whether a
play a primary role in helping practitioners and non-practitioners alike in better
norm has been accepted as a rule of international law.
understanding various concepts of international law
The decision of a national court may be used depending upon the prestige and perceived
 Examples: Grotius, vattel, Oppenheim, Rousseau, and Lautterpacht.
impartiality of the domestic court, not being in conflict with the decisions of international
tribunal, and its admissibility in the forum where it is cited.
4. INTERPRETATION OF ARTICLE 38
Although the provisions is silent on the question of whether the 3 primary sources have the
I. BINDING EFFECCT:
same hierarchic value, by practice, treaties take precedence over customs, and customs over
Following Art 59 of the ICJ statute, the decisions of the ICJ have no binding effect
general principles of law, except:
except as to the State parties and only in respect of that particular case.
a. PRINCIPLE OF JUS COGENS
II. JUDICIAL LEGISLATION
JUS COGENS
Despite res judicata being generally inapplicable with regard to decisions by
 That part of customary international law which has the status of a peremptory ( absolute,
international tribunals, a rule which the tribunal adopts, when the same is not based
uncomprising, certain) norm of international law.
on any existing tile at the time of the decision results – by such decision of the
 PEREMPTORY NORM: norm accepted and recognized by the international community
tribunal – a new, provisional rule being followed.
of States as a rule, from which no derogation is permitted and which can be modified
only by a subsequent norm having the same character.
III. JUDICIAL LEGISLATION AND CUSTOMS
 Examples: slave trade, privacy and terrorism.
When judicial legislation occurs, and its basis is the practice of States, does this
 Hilao vs Estate of Marcos: official torture of prisoner/s dissenters was a violation of the
mean that such a practice is now a custom?
principle of jus cogens.
 I. Following Art 53 of the VCLT, a TREATY is void if it comes into conflict with a
peremptory norm of international law.
Art 64 of the VCLT: that if a new peremptory norm emerges, all treaties in conflict with
it are rendered void.
As such, it becomes clear that States cannot evade their jus cogens obligations by
creating a treaty or pointing to one already in existence.

5. OTHER SOURCES OF LAW.

Although not explicitly mentioned under Art 38: other possible sources of law are resolutions
of international organizations, soft laws and equity.
In the Nicaragua case: ICJ despite much criticism,examined and appreciated a resolution by
the UN general assembly as a possible evidence of obligation.

A. SOFT LAWS.
 Mere guidelines for conduct.
 With regard to the Philippines, there are not considered binding.
 Pharmaceutical and Health Care Association: SC ruled that although soft laws can
influence the behavior of States, they are still considered as non-binding norms,
principles and practices,

B. LEX MERCATORIA
Although not strictly a law which is imposed by a sovereign, lex mercatoria, which has
evolved thru the practice of businessmen, is still hugely a part of international commercial
law.
CHAPTER II – SUBJECTS OF INTERNATIONAL LAW
 DISTINCTION BET. SUBJECT & OBJECT OF INT’L LAW
SUBJECT
An entity that has rights &
responsibilities under int’l law;
Can be a proper party in transactions
involving the application of the law of
nations among members of the int’l
community.
Includes:
States, colonies, & dependencies, mandates
& trust territories, the Holy See (Vatican
City), the UN, belligerent communities,
international administrative bodies, & to
a certain extent, individuals.
 As stated in Article 1 of the 1993 Montevideo Convention on the Rights and Duties of
States, the elements of statehood are:
1. Permanent Population
 A group of individuals, of both sexes, living together as a community.
OBJECT
A person or thing in respect of w/c  They must be sufficient number to maintain and perpetuate themselves.
rights are held & obligations assumed by  Degree of permanence is required before this element can be found present.
the subject;
2. Defined Territory
Not directly governed by the rules of int’l  Fixed portion on the earth’s surface occupied by the inhabitants.
law;  Substantial compliance – in order to satisfy the requirement of territory, it is
enough that the State possesses the land it claims as its territory, even if the formal
Its rights are received, & its responsibilities boundaries of such territory have yet to be settled.
imposed, indirectly through the
instrumentality of an int’l agency.
3. Government
 Must be organized,
 Exercising control over and capable of maintaining law and order w/ territory.
 Can be held internationally responsible for the acts of the inhabitants.
 The identity of the State is not affected by changes in government.

 Purpose of distinction 4. Capacity to Enter relations with other states

 Separation between those clothed with personality, and those that are not, is meant  Includes freedom from outside control in the conduct of its foreign and internal
to denote which entities are ultimately given legal personality in the int’l arena. affairs.
 Such a conferment of legal personality is an acknowledgment of that entity being  Only independent states can enter into free relations with other independent States.
party to several rights and duties that may be found in the int’l sphere.  There are however, exceptions – ex: PH becoming party to UN charter in 1945.
 Ex:
 Suing before ICJ  Non Self-Governing Territories
 Entering into treaties and other similar instruments.  Includes:
 Protectorates
 Traditional View  Trusteeship territories
 Only states should be considered as the proper subjects of int’l law because when it  Principalities
comes to int’l sphere, it is relationship between States alone that can create a  Various colonies which have a restricted amount of control over their relation
fundamental change in the system, regardless of whether that change is positive or with other States.
negative.  Though possessed of int’l personality, they are not be considered as State since
 States are ultimate representative of all other entities including individuals, whole their affairs to a certain but substantial extend are being controlled by another
territories, and entire communities. entity.
 Exception:
 STATES  If a non-self-governing territory, through a valid exercise of external self-
 A group of people, determination, is able to seize control of its affairs and is now free to chart its own
Living together future, that territory, which was formerly non self-governing, ma possibly be
In a fixed territory, considered a State.
Organized for political ends
Under an independent government,  Achieving Statehood
And capable of entering into int’l relations with other States.
 Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States
has already been widely accepted as customary int’l law.
 Whether statehood is achieved automatically upon acquisition and concurrence of
the elements of Statehood, or whether a further acts still needs to be done after
concurrence of the elements?
 CHARACTERISTIC OF STATEHOOD 4. Gov’t must enjoy popular consent or approval of the people
1. Ability to enter into treaties and other agreements with other State
2. Exclusive competence with respect to purely domestic affairs Tobar/ Wilson Doctrine Stimson Doctrine Estrada Doctrine
3. Freedom from the jurisdiction of int’l tribes such as ICJ unless they give their Precludes recognition of No recognition of a Since recognition has
consent, any gov’t established by gov’t established through been construed as
revolutionary means until external aggression. approval (& non-
4. Equality among others.
constitutional recognition, disapproval)
 Insofar as int’l sphere is concerned, there appears to be a presumption in favor of reorganization by free of gov’t established
States that unless a certain matter is outlawed, the same is allowed. election of representatives. through judicial upheaval,
a state may not issue a
 Statehood and Government declaration giving
 Government is merely an element of a State. recognition to such gov’t,
 As such, regardless of how many times a government changes, such changes but merely accept
generally have no effect on Statehood. whatever gov’t is in
effective control w/o
 Other Suggested Elements of a State are: raising the issue of
1. Civilization recognition.
2. Willingness to Observe Int’l law
Dealing or not dealing
3. Permanence w/the gov’t is not a
4. Existence of legal order within the State judgment of legitimacy of
5. Degree of civilization the said gov’t
6. Recognition
 Act by which a State acknowledges the existence of another State, a government or
a belligerent community.  KINDS OF RECOGNITION
 The importance of recognition has been substituted to a large extent by the act of  May be express or implies; may also be:
admission to the UN.
DE FACTO DE JURE
 UN Members must treat the ne members as an equal partner in all matter relating to
Extended by the recognizing state w/c Extended to gov’t fulfilling requirements
the application of the UN Charter.
believes that some of requirements for recognition-when there’s no specific
for recognition are absent. indication, recognition is generally
 THEORIES ON RECOGNITION considered de jure-
Recognition is generally provisional and relatively permanent-brings about full
CONSTITUTIVE (MINORITY VIEW) DECLARATIVE (MAJORITY VIEW)
limited to certain juridical relations.-Does diplomatic intercourse & observance of
Recognition is the act which constitutes the Recognition merely affirms an existing fact,
not bring about full diplomatic diplomatic immunities, & -confers title to
entity into an international person. like the possession by the State of the
intercourse & does not give title to assets abroad
Recognition is compulsory and legal; it may essential elements.
assets of the state held/ situated abroad
be compelled once the elements of a State It is discretionary and political.
are established.
 EFFECTS OF RECOGNITION
1. diplomatic relations
 BASIC RULES ON RECOGNITION
2. right to sue in courts of recognizing state
1. It’s a political act
3. immunity from jurisdiction
2. Discretionary on the part of recognizing authorit
4. entitlement to property w/in the recognizing state
3. Exercised by political (executive) department of the state
5. retroactive validation of the acts of the recognized state/govt, such as acts of state
4. Legality & wisdom-not subject to judicial review
 Sovereign immunity covers past, present & future acts.
 REQUIREMENTS FOR RECOGNITION OF GOV’T
1. Gov’t is stable & effective  RECOGNITION OF BELLIGERENCY; CONDITION
2. w/no substantial resistance to its authority 1. Organized civil gov’t having ctrl & supervision over the armed struggle
3. Gov’t must show willingness & ability to discharge int’l obligation 2. Serious & widespread struggle w/uncertain outcome.
3. Occupation of substantial portion of the national territory
 4. Willingness of rebels to observe to observe rules of war Succession of States Succession of
 Absence of any of the foregoing conditions will result merely in insurgency which Governments
is rarely recognized. May either be Universal / The integrity of the State is
 Recognition may be either express or implied; the proclamation by the parent State Partial not affected; the State
of a blockade of a port held by the rebels is implied recognition of belligerency; so continues as the same int’l
is the proclamation of neutrality by a 3rd state. person except that its lawful
representative is changed
Consequences Political laws are abrogated Rights of predecessor
 EFFECTS OF RECOGNITION OF BELLIGERENCY
while municipal laws government are
 Responsibility for acts of rebels resulting in injury to nationals of the remain in force-Treaties are inherited by successor
recognizing state shall be shifted to the rebel gov’t; discontinued, except those
 Legitimate gov’t recognizing the rebels shall observe the laws of war in conducting dealing with local rights
hostilities and duties such as those
 Third states recognizing the belligerency shall maintain neutrality, and establishing easements and
 Recognition is only provisional (for the duration of the armed struggle) & servitudes
only for the purpose of hostilities.
All rights of predecessor Where the new
state are inherited but government was
 WILLINGNESS TO OBSERVE INT’L LAW
successor state can assume organized by virtue of
 John Dugard: and reject liabilities at its constitutional reform
Int’l community is empowered to refrain from recognizing the legal personality of discretion ratified in a plebiscite, all
States and other entities purporting to be States when the same have achieved their obligations of the
Statehood through means that would be in conflict with jus cogens. predecessor are likewise
assumed, however, where
 EFFECT OF UNILATERAL DECLARATION OF STATEHOOD the new government
 Unilateral declaration was condemned by the UN Security Council through a established through
resolution which imposed a legal duty on States not to recognize the illegal regime. violence, the new
 A state may not circumvent the requirements of Statehood by unilaterally declaring government may lawfully
itself a State. reject purely personal or
political obligations of
the predecessor, but not
 CREATION OF STATES those obligations contracted
1. Revolution by it in the ordinary
2. Unification course of official business.
3. Secession
4. Assertion of independence
5. Agreement  CLASSES OF STATES
6. Attainment of civilization A. INDEPENDENT
 Has freedom to direct & ctrl foreign relations w/o restraint from other states. May
 EXTINCTION OF STATES be:
1. Extinction or emigration en masse of its population
2. Loss of territory SIMPLE COMPOSITE
3. Overthrow of government resulting in anarchy Single central gov’t, w/power over 2/ more sovereign states joined
internal & external affairs together to constitute 1 international
person, w/c may be
 PRINCIPLE OF STATE CONINUITY
REAL UNION FEDERAL
 State-continues as a juristic being notwithstanding changes in its circumstances,
UNION
provided only that such changes do not result in loss of any of its essential 2/more states sre Combination of
elements. merged under a 2/more states w/c
unified authority upon merger,
so that they form a cease to be states,
 single international resulting in the  Holy See is an international person with which the PH had diplomatic ties since
person through creation of a new 1957.
w/c they act as 1 state w/full int’l
entity. personality to  COLONIES & DEPENDECIES
represent them in
The States retain their external
COLONY DEPENDECIES
their separate relations as well as
Dependent political community Territory distinct from the country
identities, but their a certain degree of
consisting of a number of citizens of in w/c supreme sovereign power
respective power over their
the same country who have migrated resides, but belongs rightfully to it, &
international domestic affairs &
therefrom to inhabit another country subject to laws & regulations w/c
personalities are their inhabitants.
but remain subject of mother state sovereign may prescribe.
extinguished &
blended in the new Authority over  Theoretically, they belong to the parent State and, thus, are without any personality
int’l person international in the int’l community
affairs: divided  However, on occasions, colonies have been allowed to participate in their own
,e.g., the former between federal
right in certain int’l undertaking.
United Arab authorities & the
Republic, w/Egypt member-states;
& Syria  TERRITORIES UNDER INT’L CONTROL OR SUPERVISION
Authority over  These are Non-self-governing territories placed under int’l supervision/ctrl to
external affairs: insure their political, economic, social & educational advancement.
handled solely by  Ex. mandates w/c are former territorial possessions of the states defeated in World
federal authorities War I & placed under the control of League of Nations.
 Many of these mandates became trust territories placed under the trusteeship
council of the UN.
B. DEPENDENT
 An entity w/c although theoretically a state, does not have full freedom in the
 Condominium is a territory jointly administered by 2 states.
direction of its external affairs, such as a protectorate(w/c is established at request
of weaker state for the protection by a strong power) or a suzerainty(result of
 UNITED NATIONS
a concession from a state to a former colony that’s allowed to be independent
 Historical Development of the UN
subject to the retention by the former sovereign of certain powers over the
 There was the League of Nations, formed in the aftermath of WWI by the will of the
external affairs of the latter.
victorious States, embodied in the 1919 Treaty of Versailles.
 E.g., Bulgaria & Rumania, both suzerainties of the Sultan of Turkey by virtue of
 It is widely considered a failure in attaining its objective of maintaining int’l peace
Treaty of Verlin)
and order, especially after the breakout of WWII.
 London Declaration (1941)
C. NEUTRALIZED
 Atlantic Charter (1941)
 Independence & integrity are guaranteed by an int’l treaty on the condition that
 Declaration by UN (1942)
such state obligates itself never to take up arms against another (except self-
 Moscow Declaration (1943)
defense), or to enter into an int’l obligation. as would indirectly involve it in war,
 Dumbarton Oaks Proposal (1944)
 e.g., Switzerland, Austria  Yalta Conference (1945)
 San Francisco Conference (1945)
 VATICAN CITY AND HOLY SEE  Delegates from 50 nations unanimously approved the UN Charter
 Holy See-has all constituent elements of statehood  UN General Assembly (1993)
 people: less than 1000 individuals;
 184th member, Macedonia, welcomed into the community of nations.
 territory: 108.7 acres;
 gov’t w/the Pope as head; &
 UN Charter
 independence by virtue of Lateran Treaty of 1929 w/c constituted Vatican as a
 Closest to Constitution.
territory under sovereignty of Holy See)
 Governs relations of int’l persons.-
 It has all the rights of the state, including diplomatic intercourse, immunity
from foreign jurisdiction, etc
  Technically a treaty, a contract under doctrine of pacta sunct servanda 3. Financial
although it actually applies even to non-member states, at least in so far as “may Consideration and approval of the budget of the organization.
be necessary for maintenance of international peace & security. The apportionment of expenses, etc.
4. Elective
 Amendment:  As in the election of the non-permanent members of the Security Council, all
 2/3 vote of GA member & ratified by 2/3 of UN members. members of the EcoSoc, etc.
 General conference called by majority vote of GA & any 9 members of 5. Constituent
Security Council (SC), may propose amendments by a 2/3 vote of the conference &  The admission of members and the amendments of the Charter.
shall take effect when ratified by 2/3 of UN members.
 Its regular session is held once a year and it may hold special sessions called by the
 Purpose: Secretary General at the request of the Security Council or a majority of the members.
 Prevention of war  On important questions like peace, security, membership, elections,, budget, the vote of
 maintenance of int’l peace & security 2/3 of the members present and voting is required
 dev’t of friendly relations among the members of int’l community  On other questions, a simple majority is sufficient.
 int’l cooperation  To classify a question as important, the voter required is a simple majority.
 harmony of actions of nation
 General Assembly is not a legislative body, for it can only make recommendations and
 MEMBERSHIP not binding rules.
Classes Original or Elective
Qualification Member must be a state, peace loving, accept the obligation  SECURITY COUNCIL
under the charter and be able and willing to carry out these  Key organ in maintenance of int’l peace & security.
obligations  Composed of 5 permanent members
Admission Decision of 2/3 of those present and voting in the GA upon 1. China
recommendation of at least 9 members of the Security Council
2. France
Suspension Same vote as admission. Suspended member cannot participate in
3. Russia
GA meetings. Can’t be elected to or continue to serve in the Security
4. UK
council, Economic and social Council, Trusteeship council but
nationals may continue the secretariat and the ICJ although a 5. US
member is still subject to discharge its obligation under the  and 10 elective members, elected for 2 year term by the GA
charter. To lift the suspension, a qualified majority vote of the  5 from African and Asian States
Security Council is needed  2 from Latin American States
Expulsion 2/3 vote of those present and voting in GA upon  2 from Western European and other States,
recommendation of qualified majority of SC on grounds of  1 from Eastern European States.
persistently violating principles in the charter.
Withdrawal No provision on withdrawal, although there is actually no  Security council is expected to function continuously, and sessions may be called at any
compulsion for continued membership if the member feels time; thus, the representative of the member States should always be available.
constrained to withdraw due to exceptional circumstances  Functions:
1. Maintain int’l peace & security
 ORGANS 2. Investigate disputes & call disputants to settle their differences through
 General Assembly peaceful means
 consists of all members of organization, each of w/c is entitled to send not 3. Recommend methods of adjustment of disputes
more than 5 representatives & 5 alternates. 4. Determine existence of threats to peace, breach of peace, acts of
 Each member only has 1 vote. aggression, & make appropriate recommendations
5. Undertake preventive & enforcement actions
 Functions:
1. Deliberative PREVENTIVE ACTION ENFORCEMENT ACTION
 Initiating studies and making recommendations for the development of int’l law. Provisional measures to prevent a conflict Deployment of air, sea, and land forces, or
2. Supervisory from worsening and may involve the in the Institution of a blockade.
 Receiving and considering annual and special reports from other organs of the UN
deployment of peacekeeping and/or
observer missions.
These missions shall be established by the
Security of Council,
Directed by the Secretary General,
With the consent of the hos government;
Provided that military observers shall be
unarmed, while peace keeping forced may
be armed with light weapons although they
are not authorized to use force except in
self-defense, and operations must not
interfere with the internal affairs of the host
country.
Other measures may also be undertaken
against erring members, such as
interruption of economic relations,
communications or diplomatic relations.
These missions are meant to be neutral and
defensive rather than aggressive, and the
personnel deployed to such missions
generally go on a voluntary basis.
Enforcement actions in the past had been
usually stymied by the veto power of the
permanent members of the Security
Council.
 This allows for the so-called “double veto” by a permanent member of the Council
 However, the abstention or absence of any permanent member is not considered a
“veto”.
 REVIEW BY THE ICJ
 Article 34, ICJ Statute
 Only States may be parties before the ICJ.
 As such, it appears that the decisions of the SC, which is an entity separate and
distinct form the State themselves, cannot be brought before the ICK on account of
their resolutions.
 Economic and Social Council.
 Composed of fifty-four (54) member elected by the General Assembly for a three-
year term.
 It shall exert efforts towards higher standards of living, conditions of economic and
social progress and development, solutions of international economic, social, health
and related problems, universal respect for and observance of human rights and
fundamental freedoms.
 Decisions are reached by a simple majority vote.

 Trusteeship Council.
 Domestic jurisdiction clause  Charged with the duty of assisting the Security Council and the General Assembly
 Security Council may take necessary steps for settlement of disputes including in the administration of the International Trusteeship System.
preventive or enforcement action. The only limitation is that the dispute must be  It is composed of
international, not domestic in character. [i] members of the UN administering trust territories;
[ii] permanent members of the Security Council not administering trust territories;
 Recommendatory Clause and
 SC through resolutions, may make recommendations. [iii] as many other members elected by the General Assembly as may be necessary
to ensure that the total number of members is equally divided between those
 Binding Effect members of the UN which administer trust territories and those which do not.
 Following Article 48 of the UN Charter, the decisions of the SC for the
maintenance of Int’l peace and security is required ot be taken by those States  The last trust territory, Micronesia, has since then become an independent state.
determined by the SC.
 With regard to such decisions, they appear to have a binding effect on the States  Secretariat.
required to act.  The chief administrative organ of the UN; headed by the Secretary General who is
chosen by the General Assembly upon recommendation of the Security Council.
 Voting  The Secretary General is the highest representative of the UN, and is authorized to
 Yalta Formula act in its behalf. He also acts as Secretary in all meetings of the General Assembly,
 Each member of the Security Council shall have one vote, but distinction is made the Security Council, the Economic and Social Council, and the Trusteeship
between the permanent members and the non-permanent members in the resolution Council.
of substantive questions.  The Secretary General and his staff are international civil servants, and they cannot
 Procedural matters are to be decided by the affirmative vote of any nine or more receive instructions from any government or source outside the UN.
members.  The Secretary General enjoys the right of political initiative, and may bring to the
 Non-procedural matters are decided by the concurrence of at least nine members, attention of the UN Security Council any matter which, in his opinion, may
including all the permanent members. threaten international peace and security.
 The determination of whether a matter is procedural or substantive is
nonprocedural.
 International Court of Justice.
 It is the principal judicial organ of the UN; composed of 15 members who are
elected for a term of nine years by absolute majority vote in the General Assembly
and the Security Council, in separate elections, no two of whom must be nationals
of the same state.
 They must be of high moral character and possess the qualifications required in
their respective countries for appointment to their highest judicial offices.
 Article 31, ICJ Statute
Judges are not disqualified from hearing a case simply because they are nationals
of any party involved.
Background Created in 1945 and replaced the
permanent court of international
justice.
Principal organ of the UN(Article 92,
UN Charter)
Parties Only states may be parties to a case
before the ICJ (Article 34, ICJ Statute)
Provisional measure ICJ can grant provisional measure
(Article 31. ICJ Statute)
3rd party intervention ICJ, upon request from an interested
State, may allow such a State to
intervene in a case before it (Article
62, ICJ Statute)
No Stare decisis The decision of the court has no
binding force except between the
parties and in respect of that particular
case. (Article 59, ICJ Statute)
Jurisdiction The Court decides contentious cases,
and renders advisory opinions.
Only states, including non-members
of the UN, may be parties in
contentious cases.
The jurisdiction of the Court is based
on the consent of the parties in
accordance with the “optional
jurisdiction clause”, and the Court
may decide on interpretation of
treaties, any question of international
law, the existence of facts constituting
breach of international obligations and
the nature or extent of the reparation
to be made for the breach of an
international obligation.
Advisory opinions may be given upon
request of the General Assembly, or
the Security Council, or the other
organs of the UN when authorized by
the General Assembly.
 BELLIGERENT COMMUNITIES
 Liberation movements, or insurgent communities, w/c have attained a belligerent
status under int’l law, particularly int’l humanitarian law, may validly enter into
legal relations w/ States and conclude valid internationally recognized agreements.
 INTERNATIONAL ADMINISTRATIVE BODIES
 Certain administrative bodies, created by agreement among states, may be vested
with international personality, provided that they are non-political and are
autonomous and not subject to control by any state, e.g., ILO, FAO, WHO.
 International Law Commission.
 This was established by the UN General Assembly in 1947 to promote the
codification and progressive development of international law. One of the
functions of the Commission is to produce Draft Articles which may codify certain
customary international law or aid in its development. Among these, of great
significance, is the Draft Articles on State Responsibility, which are often
considered as embodying generally customary international law on the matter.
 REPARATION CASE (1949)
 Legal personality of international organizations was affirmed, but it was qualified
as being limited.
 When States create an International organization, it follows that they would have
given such a created entity the power to act in international sphere.
 However this legal personality that has been delegated to the International
organizations may the States that created them is limited and me only be used to
achieve the purposes for which they were created or for acts inherent thereto.
 Ongoing debate
 Is the legal personality of the International organizations created by States a
personality that exist only to the eyes of those States that took part in its creation?
 Or thus the existence of these created organizations make them unavoidably and
necessary recognize by the rest of the International community as well?
 Although the reparations case of 1949 makes it clear that these created
organizations have their own legal personality under International law to the extent
which is necessary for them to carry out their objectives, the general all that
recognition is an executive function of a State gives life to the viewpoint that if a
State wishes, it may refused to recognize the personality of an organization that it
played no part in creating.
 Rules of Engagement
 Given the uncertain be that lies in the relationship between States and International
organizations, the best source of those of such a relationship are the various treaties
which have been created by a states on the subject.
  In general the Vienna convention on the law of treaties between States and
International organizations is one of the most fundamental treaties that tries to put
order to the relationship between States and International organizations.
 A more specific treaties will be those which created the organizations themselves
because these treaties will normally include guidelines which could help
understand the relationship between the creating States and the created that
organization.
international personality under a number of international agreements, some of which
are:
 UN Charter provision on “faith in fundamental human rights, dignity and worth of
the human person, and in the equal rights of men and women”
 Universal Declaration of Human Rights provision on “the inherent dignity and
the equal and inalienable rights of all members of the human family”

 Domestic Application
 With regard to the personality of International organizations in the domestic sphere
the rules of such are often already contained in the treaty which created them. for
example articles 104 and 105 of the UN charter specifically provides for the legal
capacity of the UN in the territory of its members and for the enjoyment of the UN
of privileges and immunities necessary for the fulfillment of its purpose while in
the territory of its members.
 Distinguishing Factors
 In order to distinguish an International organization with legal personality in
international sphere from an ordinary organization without such personality a look
at the powers granted for the organization in its charter is instructive.
 For example if the charter of an International organization allows it to bring claims
before an International tribunal this is material because only those with legal
personality in the International sphere may bring claims before an International
tribunal.
 If on the other hand the organization may only bring claims before a domestic court
this is a good indicator or that perhaps that our generation does not have legal
personality in the International sphere.
 Some treaties, e.g., the Treaty of Versailles, which confer on individuals the right
to bring suit against States before national or international tribunals;
 The need for States to maintain an international standard of justice in the
treatment of aliens;
 The Genocide Convention, which condemns the mass extermination of national,
ethnic, racial or religious groups;
 The 1930 Hague Convention with its rules to prevent the anomalous condition of
statelessness, and the 1954 Covenant Relating to the Status of Stateless Persons,
which grants stateless individuals certain basic rights; and
 The 1950 European Convention on Human Rights and Fundamental
Freedoms, which grants private associations and individuals the right to file
complaints before the European Court on Human Rights

 Legality of the Threat or Use of Nuclear Weapons Opinion [WHO Case, ICJ Rep. 1996
66].
 The International Court of Justice ruled that it did not have jurisdiction to decide on
the request of the World Health Organization for the former to render an advisory
opinion on whether the “use of nuclear weapons by a State in war or other armed
conflict would be a breach of its obligations under international law, including the
WHO Convention”.

 Unlike States which possess general competence, international organizations are

governed by the principle of specialty, that is, they are invested by the States which
create them with powers, the limits of which are a function of the common interest
whose promotion those States entrust to them. In the opinion of the International
Court of Justice, to ascribe to WHO the competence to address the legality of the
use of nuclear weapons would be tantamount to disregarding the principle of
specialty, for such competence could not be deemed a necessary implication of the
Constitution of WHO in light of the purposes assigned to it by the member States.

 Individuals. Although traditionally, individuals have been considered merely as objects,

not subjects, of international law, they have also been granted a certain degree of