PUBLIC INTERNALTIONAL LAW
Custom—voluntary adherence to common practices,
CHAPTER 1 THE NATURE OF INTERNATIONAL
LAW
What is International Law?
 A body of rules and principles of
action which are binding upon civilized states
in their relation to one another
 A law which deals with the conduct of
the states and of international organizations
and with their relations inter se, as well as with
some of their relations with persons, whether
natural or juridical
Scope of International Law
a. Regulation of space expeditions
b. Division of the ocean floor
c. Protection of human rights
d. Management of international financial
system
e. Regulation of the environment
f. Preservation of peace
Is International Law a Law?
 Henkin: It is probably the case that
almost all nations observe all principles of
international law and almost all of their
obligations almost all of the time
 Brierly: The ultimate explanation of
the binding force of all law is that man,
whether he is a single individual or
whether he is associated with other men
in a state, is constrained, in so far as he is
reasonable being, to believe that order
and not chaos is the governing principle of
the world in which he lives
Some Theories about International Law
1. Command Theory
 Austin: Law consists of commands
originating from a sovereign and backed up
by threats of sanction if disobeyed
 International law is not law because it
does not come from a command of a
sovereign
2. Consensual Theory
 International law derives its binding
force from the consent of states
 Treaties—expression of consent
is seen as expression of consent
3. Natural Law Theory
 Law is derived by reason from the
nature of man
 International law—application of
natural reason to the nature of the state-
person
Some Dissenters
 International law—a combination of
politics, morality and self-interest hidden
under the smokescreen of legal language
Pragmatic Theory
 International law is law because it is
seen as such by states and other subjects of
international law
Public International Law v. Private International
Law
Public International Law
 Referred to as International Law
 Governs the relationship between and
among states and also their relations with
international organizations and individual
persons
Private International Law
 Referred to as Conflict of Laws
 Domestic law which deals with cases
where foreign law intrudes in the domestic
sphere where there are questions of the
applicability of foreign law or the role of
foreign courts
Historical development of international law
CHAPTER 2 SOURCES OF INTERNATIONAL LAW
What Sources are
Domestic Laws—found in statute books and in
collections of court decisions
Classifications of Sources
1. Formal sources—various processes
by which rules come into existence
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 a. Legislation important element
b. Treaty making
c. Judicial decision making b. Consistency—continuity and
d. Practice of states repetition
2. Material sources—identify what the
obligations are c. Generality of the practice of
a. State practice d. states—uniformity and generality
Judicial decisions of practice need not be complete
b. UN Resolutions e. but it must
Writings of jurists be substantial
c. Treaties
Art. 38(1) of the Statute of the International Court Opinio Juris—belief that a certain form of
of Justice behavior is obligatory
1. International conventions—
establishing rules expressly recognized by Dissenting states: subsequent contrary
contesting states practice o Dissenting states are bound by
2. International custom—evidence of a custom unless they had consistently
general practice accepted as law objected to it while the custom was
3. General principles of law recognized merely in the process of formation
by civilized nations o It is also possible that after a
4. Subsidiary means for determination of practice has been accepted as law,
rules of law contrary practice might arise
a. Judicial decisions
b. Teachings of the most highly Evidence of state
qualified publicists practice and opinio
juris a. Treaties
b. Diplomatic correspondence
Restatement of Foreign Relations Law of the US c. Statements of national
1. Customary Law leaders and political advisers
2. International agreement d. Conduct of states
3. General principles common to the
major legal system Instant Custom
o A spontaneous activity of a
Sources of International Law great number of states supporting a
specific line of action
1. Custom 4. Generally
recognized principles of law
2. Treaties 5. Judicial The Martens Clause
decisions Until a complete code of laws of war has
3. International agreements 6. been issued, inhabitants & belligerents
Teachings of highly qualified publicists are protected under the rule on the
principles of the law of nations as they
result from: usages of civilized people,
Custom or Customary Law laws of humanity & public conscience
 A general and consistent practice of
states followed by them from a sense of
2. Psychologic
legal obligation
al or subjective
factor—why
Elements: they behave the
1. Material way they do
factor—how
state behaves o Treaties
Elements of
Practice of sates  Determine the rights and duties of
or usus states just as individual rights are
determined by contracts
a. Duration—may be either
 Binding force comes from the
short or long; not the most voluntary decision of sovereign states to

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 obligate themselves to a mode of d. Restatement of Foreign Relations
behavior Law of the US
e. Annual publication of the Hague
Treaties and Custom Academy of International Law
 If the treaty is intended to be Equity
declaratory of customary law, it may be seen  When accepted, is an instrument
as evidence of customary law whereby conventional or customary law
 Adherence to treaties can be may be supplemented or modified in order
indicative also of adherence to practice as to achieve justice
opinio juris  Where 2 parties have assumed an
 If treaty comes later than a particular identical or a reciprocal obligation, one
custom, treaty should prevail party which is engaged in a continuing
non-performance of that obligation should
 If a later treaty is contrary to a not be permitted to take advantage of a
customary rile that has the status of jus similar nonperformance of that obligation
cogens, custom will prevail by the other party
 The later custom, being the  The Court’s recognition of equity as
expression of a later will, should prevail part of international law is in no way
 A treaty is void if, at the time of its restricted by the special power conferred
conclusion, it conflicts with a preemptory norm upon it to decide a case ex aequo et
of general international law bono, if the parties agree thereto
 Preemptory norm of general
international law = a norm accepted and Kinds of Equity:
recognized by the international community of
States as a whole as a norm from which no 1. Intra legem—within the law; the law is adapted
derogation is permitted and which can be to the facts of the case
modified only by a subsequent norm of
general international law 2. Praeter legem—beyond the law; used to fill the
gaps within the law
o having the same character
3. Contra legem—against the law; refusal to
apply the law which is seen as unjust
General Principles of Law Recognized by Civilized
Nations
Other Supplementary Evidence
 This has reference to principles of
1. UN Resolutions—generally
municipal law common to the legal considered merely recommendatory but if they
systems of the world
are supported by all the states, they are an
expression of opinio juris communis
Judicial Decisions 2. Soft Law—―Non-treaty
 Decisions of the court have no Agreements‖; international agreements not
binding force except between the parties concluded as treaties and therefore not
and in respect of that particular case covered by the Vienna
 Decisions do not constitute stare Convention on the Law of Treaties o
decisis Administrative Rules—guide the practice
 Decisions of the ICJ are not only of states in relation to international
regarded as highly persuasive in organizations
international circles but they have also
contributed to the formulation of principles
that have become international law
CHAPTER 3 THE LAW OF
TREATIES
Teachings of Highly Qualified Writers and
“Publicists”
Various names of Treaties
 Publicists = institutions which write on
a. Conventions c. Covenants e.
international law
Protocols g. Modus vivendi
a. The International Commission
b. Pacts d. Charters f.
b. The Institut de Droit International Concordat
c. International Law Association
1969 Vienna Convention on the Law of Treaties

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  Governs treaties between states
 Entered into force in January 1980
Definition of Treaties
 An international agreement concluded
between States in written form and governed
by international law, whether embodied in a
single instrument or in 2 or more related
instruments and whatever its particular
designation
 Even oral agreement can be binding,
however, only written agreements that are
new, come under the provisions of the Vienna
Convention
 Characteristics to make it binding:
1. Commitment was very specific
2. There was a clear intent to be bound
Functions of Treaties
a. Sources of international law
b. Charter of international organizations
c. Used to transfer territory, regulate
commercial relations, settle disputes, protect
human rights, guarantee investments
Different Kinds of Treaties
Multilateral Treaties
Open to all states of the world; Create the norms
which are the basis for a general rule of law
Can either be Codification Treaties or ―Law Making
Treaties‖, or both
Treaties that create Collaborative Mechanism
Operate through the organs of the different states
1. Universal scope
2. Regional
Bilateral Treaties
In the nature of contractual agreements which create
shared expectations such as trade agreements of
various forms; ―Contract Treaties‖
The Making of Treaties
1. Negotiation—foreign ministries, diplomatic
conferences
2. Power to negotiate
3. Authentication of text—signing of the
document; so that states will know the contents
& avoid misunderstanding
4. Consent to be bound:
a. Signature e.
Approval
b. Exchange of Instruments f.
Accession
c. Ratification g.
Other means if so agreed
d. Acceptance
5. Accession to a treaty—states which did not
participate in the initial negotiation may express
their consent to be bound
6. Reservations—unilateral statement, however
phrased or named, made by a State, when
signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain
provisions of the treaty in their application to the
State
7. Entry into force of treaties—date agreed or
once consent given (but provisional application
can also apply)
8. Application of treaties o PACTA SUNT
SERVANTA—every treaty in force is BINDING
upon the parties and must be PERFORMED by
them in GOOD FAITH
o A party may NOT INVOKE
INTERNAL LAW as justification for its
failure to perform a treaty
o It is binding upon each party in
respect of its entire territory unless a
different intention appears in the treaty or is
otherwise established
9. Interpretation of Treaties
a. Objective approach—interpretation
according to the ordinary meaning of the
words
b. Teleological approach—interpretation
according to the telos or purpose of the
treaty
c. Subjective approach—honors special
meaning given by the parties
Article 12.
1. The consent of a State to be bound by a treaty is
expressed by the signature of its representative
when:
(a) the treaty provides that signature shall have that
effect;
(b) it is otherwise established that the negotiating
States were agreed that signature should have that
effect; or
(c) the intention of the State to give that effect to the
signature appears from the full powers of its
representative or was expressed during the
negotiation.
2. For the purposes of paragraph 1:
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 (a) the initialing of a text constitutes a
signature of the treaty when it is established
that the negotiating States so agreed;
(b) (b) the signature and referendum of a
treaty by a representative, if confirmed.
Article 13.
The consent of States to be bound by a treaty
constituted by instruments exchanged between
them is expressed by that exchange when:
(a) the instruments provide that their exchange shall
have that effect; or
(b) it is otherwise established that those States were
agreed that the exchange of instruments should have
that effect
Article 14.
The consent of a State to be bound by a treaty is
expressed by ratification when:
(a) the treaty provides for such consent to be
expressed by means of ratification;
(b) it is otherwise established that the negotiating
States were agreed that ratification should be
required; (c) the representative of the State has
signed the treaty subject to ratification; or
(d) the intention of the State to sign the treaty
subject to ratification appears from the full powers
of its representative or was expressed during the
negotiation.
NOTE: The manner of ratification differs from state to
state. In the Philippines, it is governed by Article VII,
Section 21 of the Constitution. But between signature
and ratification a state is required by Article 18(a) not
to engage in acts which can defeat the purpose of the
treaty. Ratification is next followed by either
exchange of ratification, in bilateral treaties, or, in
multilateral treaties, deposit of ratification.
Article 16.
Unless the treaty otherwise provides, instruments of
ratification, acceptance, approval or accession
establish the consent of a State to be bound by a
treaty upon:
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting States or to the
depositary, if so agreed.
Article 17.
Consent to be bound by part of a treaty and choice of
differing provisions:
1. Without prejudice to Articles 19 to 23, the consent
of a State to be bound by part of a treaty is effective
only if the treaty so permits or the other contracting
States so agree.
2. The consent of a State to be bound by a treaty
which permits a choice between differing provisions is
effective only if it is made clear to which of the
provisions the consent relates.
Accession to a treaty
NOTE: States which did not participate in the initial
negotiation may also express their consent to be
bound by accession. Rule on accession is found in
Article 15.
Article 15.
The consent of a State to be bound by a treaty is
expressed by accession when:
(a) the treaty provides that such consent may be
expressed by that State by means of accession;
(b) it is otherwise established that the negotiating
States were agreed that such consent may be
expressed by that State by means of accession; or
(c) all the parties have subsequently agreed that such
consent may be expressed by that State by means of
accession.
Reservations
- “a unilateral statement, however
phrased or named, made by a State, when
signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain
provisions of the treaty in their application to
that State.” In this regard, therefore, treaties
are different from statutes. Statutes must
necessarily apply to all.
- Reservations, however, are different
from “interpretative declarations” which are
not meant to be a derogation from the treaty
but an expression of how a state understands
its adoption of the treaty.
Rules on reservations are found in Article 19-
23.
Article 19. – Formulation
A State may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a
reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations,
which do not include the reservation in question, may
be made; or
(c) in cases not falling under sub-paragraphs (a) and
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(b), the reservation is incompatible with the object and
purpose of the treaty.
Article 20 – Acceptance of and objection to
1. A reservation expressly authorized by a treaty
does not require any subsequent acceptance by
the other contracting States unless the treaty so
provides.
2. When it appears from the limited number of the
negotiating States and the object and purpose of a
treaty that the application of the treaty in its
entirety between all the parties is an essential
condition of the consent of each one to be bound by
the treaty, a reservation requires acceptance by all the
parties.
3. When a treaty is a constituent instrument of an
international organization and unless it otherwise
provides, a reservation requires the acceptance of
the competent organ of that organization.
4. In cases not falling under the preceding paragraphs
and unless the treaty otherwise provides:
(a) acceptance by another contracting State
of a reservation constitutes the reserving
State a party to the treaty in relation to that
other State if or when the treaty is in force for
those States;
(b) an objection by another contracting State
to a reservation does not preclude the entry
into force of the treaty as between the
objecting and reserving States unless a
contrary intention is definitely expressed by
the objecting State;
(c) an act expressing a State’s consent to be
bound by the treaty and containing a
reservation is effective as soon as at least
one other contracting State has accepted the
reservation.
5. For the purposes of paragraphs 2 and 4 and unless
the treaty otherwise provides, a reservation is
considered to have been accepted by a State if it shall
have raised no objection to the reservation by the end
of a period of twelve months after it was notified of the
reservation or by the date on which it expressed its
consent to be bound by the treaty, whichever is later.
Article 21. Legal Effects
1. A reservation established with regard to another
party in accordance with Articles 19,20 and 23:
(a) modifies for the reserving State in its relations with
that other party the provisions of the treaty to which
the reservation relates to the extent of the reservation;
and
(b) modifies those provisions to the same extent for
that other party in its relations with the reserving
State.
2. The reservation does not modify the provisions of
the treaty for the other parties to the treaty inter se.
3. When a State objecting to a reservation has not
opposed the entry into force of the treaty between
itself and the reserving State, the provisions to which
the reservation relates do not apply as between the
two States to the extent of the reservation.
Article 22 – Withdrawal of reservations
1. Unless the treaty otherwise provides, a reservation
may be withdrawn at any time and the consent of
a State which has accepted the reservation is not
required for its withdrawal.
2. Unless the treaty otherwise provides, an objection
to a reservation may be withdrawn at any time.
3. Unless the treaty otherwise provides, or it is
otherwise agreed:
(a) the withdrawal of a reservation becomes
operative in relation to another contracting State only
when notice of it has been received by that State;
(b) the withdrawal of an objection to a reservation
becomes operative only when notice of it has been
received by the State which formulated the
reservation.
Article 23 – Procedure
1. A reservation, an express acceptance of a
reservation and an objection to a reservation must be
formulated in writing and communicated to the
contracting States and other States entitled to become
parties to the treaty.
2. If formulated when signing the treaty subject to
ratification, acceptance or approval, a reservation
must be formally confirmed by the reserving State
when expressing its consent to be bound by the
treaty. In such a case the reservation shall be
considered as having been made on the date of its
confirmation.
3. An express acceptance of, or an objection to, a
reservation made previously to confirmation of the
reservation does not itself require confirmation.
4. The withdrawal of a reservation or of an objection to
a reservation must be formulated in writing.
NOTE: A proliferation of reservations in multilateral
treaties can very well defeat the purpose of a treaty. In
bilateral treaties, a reservation by one party means a
rejection of the treaty and necessitates re-negotiation.
Reservations, therefore, are meant only for
multilateral treaties.
EXAMPLES:
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Philippines and the 1982 Convention on the law of
the Sea
The provision on “archipelagic waters” found in the
1982 Convention on the Law of the Sea conflicts with
the Philippine claim in Article I of the Constitution that
the waters connecting the islands, irrespective of their
breadth and dimension, are “internal waters.” The
Philippine government is clearly aware of these
possible conflicts. Hence, upon its ratification of the
Convention on the Law of the Sea on August 5,1984,
it added seven reservations. The USSR filed a formal
protest against the Philippine reservation. However,
the reservation does not seem to be necessary
because Article 8(2) itself says that the new rule
applies only to “areas which had not previously been
considered as” internal waters. The 1973 Constitution,
which in its Article I classified as internal waters what
is now referred to as archipelagic waters, pre-dates
the 1982 Convention.
Entry into force of treaties
Treaties enter into force on the date agreed upon by
the parties. Where no date is indicated, the treaty
enters into force once consent has been given.
Multilateral treaties generally contain a provision
which says how many states have to accept the treaty
before it can come into force. The rules on entry into
force are as follows:
1. A treaty enters into force in such manner and upon
such date as it may provide or as the negotiating
States may agree.
2. Failing any such provision or agreement, a treaty
enters into force as soon as consent to be bound by
the treaty has been established for all the negotiating
States.
3. When the consent of a State to be bound by a
treaty is established on a date after the treaty has
come into force, the treaty enters into force for that
State on that date, unless the treaty otherwise
provides.
4. The provisions of a treaty regulating the
authentication of its text, the establishment of the
consent of States to be bound by the treaty, the
manner or date of its entry into force, reservations, the
functions of the depositary and other matters arising
necessarily before the entry into force of the treaty
apply from the time of the adoption of its text.
Article 25 – Provisional application
1. A treaty or a part of a treaty is applied provisionally
pending its entry into force if:
(a) the treaty itself so provides; or
(b) the negotiating States have in some other manner
so agreed.
2. Unless the treaty otherwise provides or the
negotiating States have otherwise agreed, the
provisional application of a treaty or a part of a treaty
with respect to a State shall be terminated if that State
notifies the other States between which the treaty is
being applied provisionally of its intention not to
become a party to the treaty.
Application of Treaties
(Fundamental Rules)
Pacta sunt servanda – every treaty in force is binding
upon the parties to it and must be performed by them
in good faith.
Article 46 – party may not invoke the provisions of its
internal law as justification for its failure to perform a
treat.
Article 29 – Unless a different intention appears from
the treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire
territory.
Interpretation of Treaties
Article 31.
Objective approach – interpretation according to
the ordinary meaning of the words
(1.) A treaty shall be interpreted in good
faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their
context and in the light of its object and
purpose.
Teleological approach – interpretation according
to the telos or purpose of the treaty
(2.) The context for the purpose of the interpretation of
a treaty shall comprise, in addition to the text,
including its preamble and annexes:
(a) any agreement relating to the treaty which was
made between all the parties in connection with the
conclusion of the treaty;
(b) any instrument which was made by one or more
parties in connection with the conclusion of the treaty
and accepted by the other parties as an instrument
related to the treaty.
Subjective approach - honors special meaning given
by the parties.
(3.) There shall be taken into account, together with
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the context:
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the
application of its provisions;
b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties
regarding its interpretation;
(c) any relevant rules of international law applicable in
the relations between the parties.
(4.) A special meaning shall be given to a term if it is
es-tablished that the parties so intended.
NOTE: When there are ambiguities in the meaning of
a treaty, Articles 32 and 33 are relevant.
Article 32. Supplementary means of interpretation.
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in
order to confirm the meaning resulting from the
application of Article 31, or to determine the meaning
when the interpretation according to Article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or
unreasonable.
Article 33. Interpretation of treaties authenticated in
two or more languages:
1. When a treaty has been authenticated in two or
more languages, the text is equally authoritative in
each language, unless the treaty provides or the
parties agree that, in case of divergence, a particular
text shall prevail.
2. A version of the treaty in a language other than one
of those in which the text was authenticated shall be
considered an authentic text only if the treaty so
provides or the parties so agree.
3. The terms of the treaty are presumed to have the
same meaning in each authentic text.
4. Except where a particular text prevails in
accordance with paragraph 1, when a comparison of
the authentic texts discloses a difference of meaning
which the application of Articles 31 and 32 does not
remove, the meaning which best reconciles the texts,
having regard to the object and purpose of the treaty,
shall be adopted.
NOTE: In case there is conflict among “official texts,”
the language that is agreed by the parties as
authoritative is followed.
INVALIDITY OF TREATIES
- the usual ground for invalidation of
contracts can also invalidate a treaty: error of
fact, fraud, corruption or duress.
Article 48 – ERROR
1. A State may invoke an error in a treaty as
invalidating its consent to be bound by the treaty if the
error relates to a fact or situation which was assumed
by that State to exist at the time when the treaty was
concluded and formed an essential basis of its
consent to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question
contributed by its own conduct to the error or if the
circumstances were such as to put that State on
notice of a possible error.
3. An error relating only to the wording of the text of a
treaty does not affect its validity; Article 79 then
applies.
Article 49 – FRAUD
If a State has been induced to conclude a treaty by
the fraud-ulent conduct of another negotiating State,
the State may invoke the fraud as invalidating its
consent to be bound by the treaty.
Article 50 – CORRUPTION OF A
REPRESENTATIVE OF A STATE
If the expression of a State’s consent to be bound by
a treaty has been procured through the corruption of
its representative directly or indirectly by another
negotiating State, the State may invoke such
corruption as invalidating its consent to be bound by
the treaty
Article 51 – COERCION OF A REPRESENTATIVE
OF A STATE
The expression of a State’s consent to be bound by a
treaty which has been procured by the coercion of its
representative through acts or threats directed against
him shall be without any legal effect.
Article 52 – COERCION OF A STATE BY THE
THREAT OR USE OF FORCE
A treaty is void if its conclusion has been procured by
the threat or use of force in violation of the principles
of international law embodied in the Charter of the
United Nations.
NOTE: A violation of jus cogens violates a treaty.
Jus cogens - treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of
general international law.
Article 53 - Treaties conflicting with a peremptory
norm of general international law (jus cogens):
A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general
international law. For the purposes of the present
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Convention, a peremptory norm of general
international law is a norm accepted and recognized
by the international community of States as a whole
as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of
general international law having the same character.
- Jus cogens here means no
derogation is allowed because it is jus
cogens. It is the intrinsic nature of the rule that
disallows derogation.
Rules considered to be jus cogens:
(a) a treaty contemplating an unlawful use of force
contrary to the provisions of the Charter;
(b) a treaty contemplating the performance of any
other act criminal under international law;
(c) a treaty contemplating or conniving towards the
commission of acts such as trade in slaves, piracy, or
genocide.
LOSING THE RIGHT TO ASSERT INVALIDITY
Article 45. A State may no longer invoke a ground for
invalidating, terminating, withdrawing from or
suspending the operation of a treaty under Articles 46
to 50 or Articles 60 and 62 if, after becoming aware of
the facts:
(a) it shall have expressly agreed that the
treaty is valid or remains in force or continues
in operation, as the case may be; or
(b) it must by reason of its conduct be
considered as having acquiesced in the
validity of the treaty or in its maintenance in
force or in operation, as the case may be.
Note: A state, with limited exception, may not plead its
municipal law as a ground for invalidating a treaty that
has been entered.
Article 46. Provisions of internal law regarding
competence to conclude treaties:
1. A State may not invoke the fact that its consent to
be bound by a treaty has been expressed in violation
of a provision of its internal law regarding competence
to conclude treaties as invalidating its consent unless
that violation was manifest and concerned a rule of its
internal law of fundamental importance.
2. A violation is manifest if it would be objectively
evident to any State conducting itself in the matter in
accordance with normal practice and in good faith.
Article 47. Manifest violation
Specific restrictions on authority to express the
consent of a State:
If the authority of a representative to express the
consent of a State to be bound by a particular treaty
has been made subject to a specific restriction, his
omission to observe that restriction may not be
invoked as invalidating the consent expressed by him
unless the restriction was notified to the other
negotiating States prior to his expressing such
consent.
AMENDMENT AND MODIFICATION OF TREATIES
Amendment vs Modification:
- Amendment is a formal revision done
with the participation, at least in its initial
stage, by all the parties to the treaty.
Modification, on the other hand, involves only
some of the parties.
General Rule on amendments: “treaty may be
amended by agreement of the parties.” The procedure
that is followed is the same as that for the formation of
treaties. Article 40 provides for the possibility of
amendments which will affect only some states but
only after all parties have been given the opportunity
to consider the proposed amendments. Article 41, for
its part, allows for modification of a treaty by two or
more of the parties.
AMENDMENT
Article 40. Amendment of multilateral treaties:
1. Unless the treaty otherwise provides, the
amendment of multilateral treaties shall be governed
by the following paragraphs.
2. Any proposal to amend a multilateral treaty as
between all the parties must be notified to all the
contracting States, each one of which shall have the
right to take part in:
(a) the decision as to the action to be taken in regard
to such proposal;
(b) the negotiation and conclusion of any agreement
for the amendment of the treaty.
3. Every State entitled to become a party to the treaty
shall also be entitled to become a party to the treaty
as amended.
4. The amending agreement does not bind any State
already a party to the treaty which does not become a
party to the amending agreement; Article 30,
paragraph 4(b), applies in relation to such State.
5. Any State which becomes a party to the treaty after
the entry into force of the amending agreement shall,
failing an expression of a different intention by that
State:
(a) be considered as a party to the treaty as amended;
and
(b) be considered as a party to the unamended treaty
in relation to any party to the treaty not bound by the
9
amending agreement.
MODIFICATION
Article 41. Agreements to modify multilateral treaties
between certain of the parties only —
1. Two or more of the parties to a multilateral treaty
may conclude an agreement to modify the treaty as
between themselves alone if:
(a) the possibility of such a modification is provided for
by the treaty; or
(b) the modification in question is not prohibited by the
treaty and:
(i) does not affect the enjoyment by the other parties
of their rights under the treaty or the performance of
their obligations;
(ii) does not relate to a provision, derogation from
which is incompatible with the effective execution of
the object and purpose of the treaty as a whole.
2. Unless in a case falling under paragraph 1(a) the
treaty otherwise provides, the parties in question shall
notify the other
parties of their intention to conclude the agreement
and of the modification to the treaty for which it
provides.
TERMINATION OF TREATIES
A treaty may be terminated or suspended according to
the terms of the treaty or with the consent of the
parties. A treaty with a definite period may also expire.
It may also end when the purpose for the treaty has
already been achieved. But a mere change of
government or severance of diplomatic relations does
not terminate or suspend a treaty.
Modes of terminating a treaty:
1. Material breach
2. Impossibility of performance
3. Change of fundamental conditions
(rebus sic stantibus)
Material Breach
Article 60. Termination or suspension of the operation
of a treaty as a consequence of its breach:
1. A material breach of a bilateral treaty by one of the
parties entitles the other to invoke the breach as a
ground for terminating the treaty or suspending its
operation in whole or in part.
2. A material breach of a multilateral treaty by one of
the parties entitles:
(a) the other parties by unanimous agreement to
suspend the operation of the treaty in whole or in part
or to terminate it either:
(i) in the relations between themselves and
the defaulting State, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it
as a ground for suspending the operation of the treaty
in whole or in part in the relations between itself and
the defaulting State;
(c) any party other than the defaulting State to invoke
the breach as a ground for suspending the operation
of the treaty in whole or in part with respect to itself if
the treaty is of such a character that a material breach
of its provisions by one party radically changes the
position of every party with respect to the further
performance of its obligations under the treaty.
3. A material breach of a treaty, for the purposes of
this article, consists in:
(a) a repudiation of the treaty not sanctioned by the
present Convention; or
(b) the violation of a provision essential to the
accomplishment of the object or purpose of the treaty.
4. The foregoing paragraphs are without prejudice to
any provision in the treaty applicable in the event of a
breach.
5. Paragraphs 1 to 3 do not apply to provisions
relating to the protection of the human person
contained in treaties of a humanitarian character, in
particular to provisions prohibiting any form of
reprisals against persons protected by such treaties.
Superventing impossibility of performance
Article 61.
1. A party may invoke the impossibility of performing a
treaty as a ground for terminating or withdrawing from
it if the impossibility results from the permanent
disappearance or destruction of an object
indispensable for the execution of the treaty. If the
impossibility is temporary, it may be invoked only as a
ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by
a party as a ground for terminating, withdrawing from
or suspending the operation of a treaty if the
impossibility is the result of a breach by that party
either of an obligation under the treaty or of any other
international obligation owed to any other party to the
treaty.
Rebus sic stantibus
Article 62.
- A fundamental change in the
circumstances which determined the parties
to accept a treaty, if it has resulted in a radical
transformation of the extent of the obligations
imposed by it, may, under certain conditions,
afford the party affected a ground for invoking
the termination or suspension of the treaty.
10

1. A fundamental change of circumstances which has
occurred with regard to those existing at the time of
the conclusion of a treaty, and which was not foreseen
by the parties, may not be invoked as a ground for
terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted
an essential basis of the consent of the parties to be
bound by the treaty; and (b) the effect of the change is
radically to transform the extent of obligations still to
be performed under the treaty. 2. A fundamental
change of circumstances may not be invoked as a
ground for terminating or withdrawing from a treaty:
(a) if the treaty establishes a boundary; or (b) if the
fundamental change is the result of a breach by the
party invoking it either of an obligation under the treaty
or of any other international obligation owed to any
other party to the treaty.
3. If, under the foregoing paragraphs, a party may
invoke a fundamental change of circumstances as a
ground for terminating or withdrawing from a treaty it
may also invoke the change as a ground for
suspending the operation of the treaty.
NOTE: The changes must have increased the burden
of the obligations to be executed to the extent of
rendering performance something essentially different
from the original intention.
Procedure of termination
Article 65. With respect to Invalidity, termination,
withdrawal from or suspension of the operation of
a treaty
1. A party which, under the provisions of the present
Convention, invokes either a defect in its consent to
be bound by a treaty or a ground for impeaching the
validity of a treaty, terminating it, withdrawing from it
or suspending its operation, must notify the other
parties of its claim. The notification shall indicate the
measure proposed to be taken with respect to the
treaty and the reasons therefor.
2. If, after the expiry of a period which, except in
cases of special urgency, shall not be less than three
months after the receipt of the notification, no party
has raised any objection, the party making the
notification may carry out in the manner provided in
Article 67 the measure which it has proposed.
3. If, however, objection has been raised by any other
party, the parties shall seek a solution through the
means indicated in Article 33 of the Charter of the
United Nations.
4. Nothing in the foregoing paragraphs shall affect the
rights or obligations of the parties under any
provisions in force binding the parties with regard to
the settlement of disputes.
5. Without prejudice to Article 45, the fact that a State
has not previously made the notification prescribed in
paragraph 1 shall not prevent it from making such
notification in answer to another party claiming
performance of the treaty or alleging its violation.
Article 66. For Judicial settlement, arbitration and
conciliation:
If, under paragraph 3 of Article 65, no solution has
been reached within a period of 12 months following
the date on which the objection was raised, the
following procedures shall be followed:
(a) any one of the parties to a dispute
concerning the application or the
interpretation of Article 53 or 64 may, by a
written application, submit it to the
International Court of Justice for a decision
unless the parties by common consent agree
to submit the dispute to arbitration;
(b) any one of the parties to a dispute
concerning the application or the
interpretation of any of the other articles in
Part V of the present Convention may set in
motion the procedure specified in the Annex
to the Convention by submitting a request to
that effect to the Secretary-General of the
United Nations.
Article 67. Instruments for declaring invalid,
terminating, withdrawing from or suspending the
operation of treaty
1. The notification provided for under Article 65,
paragraph 1 must be made in writing.
2. Any act declaring invalid, terminating, withdrawing
from or suspending the operation of a treaty pursuant
to the provisions of the treaty or of paragraphs 2 or 3
of Article 65 shall be carried out through an instrument
communicated to the other parties. If the instrument is
not signed by the Head of State, Head of Government
or Minister for Foreign Affairs, the representative of
the State communicating it may be called upon to
produce full power.
Article 68.
A notification or instrument provided for in Article 65 or
67 may be revoked at any time before it takes effect.
Authority to Terminate
- logically, the authority to terminate
should belong to the one who has the
authority to enter into the treaty.
- In the Philippines, the authority to
conclude treaties is shared between the
Senate and the President.
11

Succession to treaties
The Convention follows the “clean slate” rule. Article
16 says: “A newly independent State is not bound to
maintain in force, or to become a party to, any treaty
by reason only of the fact that at the date of the
succession of States the treaty was in force in respect
of the territory to which the succession of States
relates.” But a new state may agree to be bound by
the treaties made by its predecessor. The “clean
slate" rule, however, does not apply to treaties
affecting boundary regimes
Chapter 4
International Law and Municipal Law
Dualism vs Monism
The Dualist Theory
- holds that international law and
municipal law are essentially different from
each other. They differ as to source.
Municipal law is a product of local custom or
of legislation whereas the sources of
international law are treaties and custom
grown among states. They differ as regards
the relations they regulate. Municipal law
regulates relations between individual
persons under the state whereas international
law regulates relations between states, They
also differ regarding their substance.
Municipal law is a law of the sovereign over
individuals whereas international law is a law
between sovereign states.
- For the dualists, when international
law and municipal law conflict, municipal law
must prevail. The dualists are positivists with
a strong emphasis on state sovereignty.
The Monist Theory
- international law and domestic law
belong to only one system of law. However,
there are two monist theories. One theory
holds that municipal law subsumes and is
superior to international law, and a second
theory, supported by Kelsen, holds that
international law is superior to domestic law.
The superiority of international law is seen as
flowing from a deep suspicion of local
sovereigns and from the conviction that
international law can imbue the domestic
order with a sense of moral purpose.
Municipal Law in International Law
- “Every State has the duty to carry out
in good faith its obligations arising from
treaties and other sources of international law,
and it may not invoke provisions in its
constitution or its laws as an excuse for failure
to perform this duty.” This follows the dualist
tradition and blocks domestic law from entry
into the international arena. Thus, a state
which has violated a provision of international
law cannot justify itself by recourse to its
domestic law. Moreover, a state which has
entered into an international agreement must
modify its law to make it conform to the
agreement
Article 12.
1. The consent of a State to be bound by a treaty is
expressed by the signature of its representative
when:
(a) the treaty provides that signature shall have that
effect;
(b) it is otherwise established that the negotiating
States were agreed that signature should have that
effect; or
(c) the intention of the State to give that effect to the
signature appears from the full powers of its
representative or was expressed during the
negotiation.
2. For the purposes of paragraph 1:
(c) the initialing of a text constitutes a
signature of the treaty when it is established
that the negotiating States so agreed;
(d) (b) the signature and referendum of a
treaty by a representative, if confirmed.
Article 13.
The consent of States to be bound by a treaty
constituted by instruments exchanged between
them is expressed by that exchange when:
(a) the instruments provide that their exchange shall
have that effect; or
(b) it is otherwise established that those States were
agreed that the exchange of instruments should have
that effect
Article 14.
The consent of a State to be bound by a treaty is
expressed by ratification when:
12
(a) the treaty provides for such consent to be
expressed by means of ratification;
(b) it is otherwise established that the negotiating
States were agreed that ratification should be
required; (c) the representative of the State has
signed the treaty subject to ratification; or
(d) the intention of the State to sign the treaty
subject to ratification appears from the full powers
of its representative or was expressed during the
negotiation.
NOTE: The manner of ratification differs from state to
state. In the Philippines, it is governed by Article VII,
Section 21 of the Constitution. But between signature
and ratification a state is required by Article 18(a) not
to engage in acts which can defeat the purpose of the
treaty. Ratification is next followed by either
exchange of ratification, in bilateral treaties, or, in
multilateral treaties, deposit of ratification.
Article 16.
Unless the treaty otherwise provides, instruments of
ratification, acceptance, approval or accession
establish the consent of a State to be bound by a
treaty upon:
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting States or to the
depositary, if so agreed.
Article 17.
Consent to be bound by part of a treaty and choice of
differing provisions:
1. Without prejudice to Articles 19 to 23, the consent
of a State to be bound by part of a treaty is effective
only if the treaty so permits or the other contracting
States so agree.
2. The consent of a State to be bound by a treaty
which permits a choice between differing provisions is
effective only if it is made clear to which of the
provisions the consent relates.
Accession to a treaty
NOTE: States which did not participate in the initial
negotiation may also express their consent to be
bound by accession. Rule on accession is found in
Article 15.
Article 15.
The consent of a State to be bound by a treaty is
expressed by accession when:
(a) the treaty provides that such consent may be
expressed by that State by means of accession;
(b) it is otherwise established that the negotiating
States were agreed that such consent may be
expressed by that State by means of accession; or
(c) all the parties have subsequently agreed that such
consent may be expressed by that State by means of
accession.
Reservations
- “a unilateral statement, however
phrased or named, made by a State, when
signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain
provisions of the treaty in their application to
that State.” In this regard, therefore, treaties
are different from statutes. Statutes must
necessarily apply to all.
- Reservations, however, are different
from “interpretative declarations” which are
not meant to be a derogation from the treaty
but an expression of how a state understands
its adoption of the treaty.
Rules on reservations are found in Article 19-
23.
Article 19. – Formulation
A State may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a
reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations,
which do not include the reservation in question, may
be made; or
(c) in cases not falling under sub-paragraphs (a) and
(b), the reservation is incompatible with the object and
purpose of the treaty.
Article 20 – Acceptance of and objection to
1. A reservation expressly authorized by a treaty
does not require any subsequent acceptance by
the other contracting States unless the treaty so
provides.
2. When it appears from the limited number of the
negotiating States and the object and purpose of a
treaty that the application of the treaty in its
entirety between all the parties is an essential
condition of the consent of each one to be bound by
the treaty, a reservation requires acceptance by all the
parties.
3. When a treaty is a constituent instrument of an
international organization and unless it otherwise
provides, a reservation requires the acceptance of
the competent organ of that organization.
4. In cases not falling under the preceding paragraphs
and unless the treaty otherwise provides:
13
 (a) acceptance by another contracting State
of a reservation constitutes the reserving
State a party to the treaty in relation to that
other State if or when the treaty is in force for
those States;
(b) an objection by another contracting State
to a reservation does not preclude the entry
into force of the treaty as between the
objecting and reserving States unless a
contrary intention is definitely expressed by
the objecting State;
(c) an act expressing a State’s consent to be
bound by the treaty and containing a
reservation is effective as soon as at least
one other contracting State has accepted the
reservation.
5. For the purposes of paragraphs 2 and 4 and unless
the treaty otherwise provides, a reservation is
considered to have been accepted by a State if it shall
have raised no objection to the reservation by the end
of a period of twelve months after it was notified of the
reservation or by the date on which it expressed its
consent to be bound by the treaty, whichever is later.
Article 21. Legal Effects
1. A reservation established with regard to another
party in accordance with Articles 19,20 and 23:
(a) modifies for the reserving State in its relations with
that other party the provisions of the treaty to which
the reservation relates to the extent of the reservation;
and
(b) modifies those provisions to the same extent for
that other party in its relations with the reserving
State.
2. The reservation does not modify the provisions of
the treaty for the other parties to the treaty inter se.
3. When a State objecting to a reservation has not
opposed the entry into force of the treaty between
itself and the reserving State, the provisions to which
the reservation relates do not apply as between the
two States to the extent of the reservation.
Article 22 – Withdrawal of reservations
1. Unless the treaty otherwise provides, a reservation
may be withdrawn at any time and the consent of
a State which has accepted the reservation is not
required for its withdrawal.
2. Unless the treaty otherwise provides, an objection
to a reservation may be withdrawn at any time.
3. Unless the treaty otherwise provides, or it is
otherwise agreed:
(a) the withdrawal of a reservation becomes
operative in relation to another contracting State only
when notice of it has been received by that State;
(b) the withdrawal of an objection to a reservation
becomes operative only when notice of it has been
received by the State which formulated the
reservation.
Article 23 – Procedure
1. A reservation, an express acceptance of a
reservation and an objection to a reservation must be
formulated in writing and communicated to the
contracting States and other States entitled to become
parties to the treaty.
2. If formulated when signing the treaty subject to
ratification, acceptance or approval, a reservation
must be formally confirmed by the reserving State
when expressing its consent to be bound by the
treaty. In such a case the reservation shall be
considered as having been made on the date of its
confirmation.
3. An express acceptance of, or an objection to, a
reservation made previously to confirmation of the
reservation does not itself require confirmation.
4. The withdrawal of a reservation or of an objection to
a reservation must be formulated in writing.
NOTE: A proliferation of reservations in multilateral
treaties can very well defeat the purpose of a treaty. In
bilateral treaties, a reservation by one party means a
rejection of the treaty and necessitates re-negotiation.
Reservations, therefore, are meant only for
multilateral treaties.
EXAMPLES:
Philippines and the 1982 Convention on the law of
the Sea
The provision on “archipelagic waters” found in the
1982 Convention on the Law of the Sea conflicts with
the Philippine claim in Article I of the Constitution that
the waters connecting the islands, irrespective of their
breadth and dimension, are “internal waters.” The
Philippine government is clearly aware of these
possible conflicts. Hence, upon its ratification of the
Convention on the Law of the Sea on August 5,1984,
it added seven reservations. The USSR filed a formal
protest against the Philippine reservation. However,
the reservation does not seem to be necessary
because Article 8(2) itself says that the new rule
applies only to “areas which had not previously been
considered as” internal waters. The 1973 Constitution,
which in its Article I classified as internal waters what
is now referred to as archipelagic waters, pre-dates
the 1982 Convention.
Entry into force of treaties
Treaties enter into force on the date agreed upon by
14
the parties. Where no date is indicated, the treaty
enters into force once consent has been given.
Multilateral treaties generally contain a provision
which says how many states have to accept the treaty
before it can come into force. The rules on entry into
force are as follows:
1. A treaty enters into force in such manner and upon
such date as it may provide or as the negotiating
States may agree.
2. Failing any such provision or agreement, a treaty
enters into force as soon as consent to be bound by
the treaty has been established for all the negotiating
States.
3. When the consent of a State to be bound by a
treaty is established on a date after the treaty has
come into force, the treaty enters into force for that
State on that date, unless the treaty otherwise
provides.
4. The provisions of a treaty regulating the
authentication of its text, the establishment of the
consent of States to be bound by the treaty, the
manner or date of its entry into force, reservations, the
functions of the depositary and other matters arising
necessarily before the entry into force of the treaty
apply from the time of the adoption of its text.
Article 25 – Provisional application
1. A treaty or a part of a treaty is applied provisionally
pending its entry into force if:
(a) the treaty itself so provides; or
(b) the negotiating States have in some other manner
so agreed.
2. Unless the treaty otherwise provides or the
negotiating States have otherwise agreed, the
provisional application of a treaty or a part of a treaty
with respect to a State shall be terminated if that State
notifies the other States between which the treaty is
being applied provisionally of its intention not to
become a party to the treaty.
Application of Treaties
(Fundamental Rules)
Pacta sunt servanda – every treaty in force is binding
upon the parties to it and must be performed by them
in good faith.
Article 46 – party may not invoke the provisions of its
internal law as justification for its failure to perform a
treat.
Article 29 – Unless a different intention appears from
the treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire
territory.
Interpretation of Treaties
Article 31.
Objective approach – interpretation according to
the ordinary meaning of the words
(2.) A treaty shall be interpreted in good
faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their
context and in the light of its object and
purpose.
Teleological approach – interpretation according
to the telos or purpose of the treaty
(2.) The context for the purpose of the interpretation of
a treaty shall comprise, in addition to the text,
including its preamble and annexes:
(a) any agreement relating to the treaty which was
made between all the parties in connection with the
conclusion of the treaty;
(b) any instrument which was made by one or more
parties in connection with the conclusion of the treaty
and accepted by the other parties as an instrument
related to the treaty.
Subjective approach - honors special meaning given
by the parties.
(3.) There shall be taken into account, together with
the context:
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the
application of its provisions;
b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties
regarding its interpretation;
(c) any relevant rules of international law applicable in
the relations between the parties.
(4.) A special meaning shall be given to a term if it is
es-tablished that the parties so intended.
NOTE: When there are ambiguities in the meaning of
a treaty, Articles 32 and 33 are relevant.
Article 32. Supplementary means of interpretation.
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in
order to confirm the meaning resulting from the
application of Article 31, or to determine the meaning
when the interpretation according to Article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or
15
unreasonable.
Article 33. Interpretation of treaties authenticated in
two or more languages:
1. When a treaty has been authenticated in two or
more languages, the text is equally authoritative in
each language, unless the treaty provides or the
parties agree that, in case of divergence, a particular
text shall prevail.
2. A version of the treaty in a language other than one
of those in which the text was authenticated shall be
considered an authentic text only if the treaty so
provides or the parties so agree.
3. The terms of the treaty are presumed to have the
same meaning in each authentic text.
4. Except where a particular text prevails in
accordance with paragraph 1, when a comparison of
the authentic texts discloses a difference of meaning
which the application of Articles 31 and 32 does not
remove, the meaning which best reconciles the texts,
having regard to the object and purpose of the treaty,
shall be adopted.
NOTE: In case there is conflict among “official texts,”
the language that is agreed by the parties as
authoritative is followed.
INVALIDITY OF TREATIES
- the usual ground for invalidation of
contracts can also invalidate a treaty: error of
fact, fraud, corruption or duress.
Article 48 – ERROR
1. A State may invoke an error in a treaty as
invalidating its consent to be bound by the treaty if the
error relates to a fact or situation which was assumed
by that State to exist at the time when the treaty was
concluded and formed an essential basis of its
consent to be bound by the treaty.
2. Paragraph 1 shall not apply if the State in question
contributed by its own conduct to the error or if the
circumstances were such as to put that State on
notice of a possible error.
3. An error relating only to the wording of the text of a
treaty does not affect its validity; Article 79 then
applies.
Article 49 – FRAUD
If a State has been induced to conclude a treaty by
the fraud-ulent conduct of another negotiating State,
the State may invoke the fraud as invalidating its
consent to be bound by the treaty.
Article 50 – CORRUPTION OF A
REPRESENTATIVE OF A STATE
If the expression of a State’s consent to be bound by
a treaty has been procured through the corruption of
its representative directly or indirectly by another
negotiating State, the State may invoke such
corruption as invalidating its consent to be bound by
the treaty
Article 51 – COERCION OF A REPRESENTATIVE
OF A STATE
The expression of a State’s consent to be bound by a
treaty which has been procured by the coercion of its
representative through acts or threats directed against
him shall be without any legal effect.
Article 52 – COERCION OF A STATE BY THE
THREAT OR USE OF FORCE
A treaty is void if its conclusion has been procured by
the threat or use of force in violation of the principles
of international law embodied in the Charter of the
United Nations.
NOTE: A violation of jus cogens violates a treaty.
Jus cogens - treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of
general international law.
Article 53 - Treaties conflicting with a peremptory
norm of general international law (jus cogens):
A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general
international law. For the purposes of the present
Convention, a peremptory norm of general
international law is a norm accepted and recognized
by the international community of States as a whole
as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of
general international law having the same character.
- Jus cogens here means no
derogation is allowed because it is jus
cogens. It is the intrinsic nature of the rule that
disallows derogation.
Rules considered to be jus cogens:
(a) a treaty contemplating an unlawful use of force
contrary to the provisions of the Charter;
(b) a treaty contemplating the performance of any
other act criminal under international law;
(c) a treaty contemplating or conniving towards the
commission of acts such as trade in slaves, piracy, or
genocide.
LOSING THE RIGHT TO ASSERT INVALIDITY
Article 45. A State may no longer invoke a ground for
16
invalidating, terminating, withdrawing from or
suspending the operation of a treaty under Articles 46
to 50 or Articles 60 and 62 if, after becoming aware of
the facts:
(c) it shall have expressly agreed that the
treaty is valid or remains in force or continues
in operation, as the case may be; or
(d) it must by reason of its conduct be
considered as having acquiesced in the
validity of the treaty or in its maintenance in
force or in operation, as the case may be.
Note: A state, with limited exception, may not plead its
municipal law as a ground for invalidating a treaty that
has been entered.
Article 46. Provisions of internal law regarding
competence to conclude treaties:
1. A State may not invoke the fact that its consent to
be bound by a treaty has been expressed in violation
of a provision of its internal law regarding competence
to conclude treaties as invalidating its consent unless
that violation was manifest and concerned a rule of its
internal law of fundamental importance.
2. A violation is manifest if it would be objectively
evident to any State conducting itself in the matter in
accordance with normal practice and in good faith.
Article 47. Manifest violation
Specific restrictions on authority to express the
consent of a State:
If the authority of a representative to express the
consent of a State to be bound by a particular treaty
has been made subject to a specific restriction, his
omission to observe that restriction may not be
invoked as invalidating the consent expressed by him
unless the restriction was notified to the other
negotiating States prior to his expressing such
consent.
AMENDMENT AND MODIFICATION OF TREATIES
Amendment vs Modification:
- Amendment is a formal revision done
with the participation, at least in its initial
stage, by all the parties to the treaty.
Modification, on the other hand, involves only
some of the parties.
General Rule on amendments: “treaty may be
amended by agreement of the parties.” The procedure
that is followed is the same as that for the formation of
treaties. Article 40 provides for the possibility of
amendments which will affect only some states but
only after all parties have been given the opportunity
to consider the proposed amendments. Article 41, for
its part, allows for modification of a treaty by two or
more of the parties.
AMENDMENT
Article 40. Amendment of multilateral treaties:
1. Unless the treaty otherwise provides, the
amendment of multilateral treaties shall be governed
by the following paragraphs.
2. Any proposal to amend a multilateral treaty as
between all the parties must be notified to all the
contracting States, each one of which shall have the
right to take part in:
(a) the decision as to the action to be taken in regard
to such proposal;
(b) the negotiation and conclusion of any agreement
for the amendment of the treaty.
3. Every State entitled to become a party to the treaty
shall also be entitled to become a party to the treaty
as amended.
4. The amending agreement does not bind any State
already a party to the treaty which does not become a
party to the amending agreement; Article 30,
paragraph 4(b), applies in relation to such State.
5. Any State which becomes a party to the treaty after
the entry into force of the amending agreement shall,
failing an expression of a different intention by that
State:
(a) be considered as a party to the treaty as amended;
and
(b) be considered as a party to the unamended treaty
in relation to any party to the treaty not bound by the
amending agreement.
MODIFICATION
Article 41. Agreements to modify multilateral treaties
between certain of the parties only —
1. Two or more of the parties to a multilateral treaty
may conclude an agreement to modify the treaty as
between themselves alone if:
(a) the possibility of such a modification is provided for
by the treaty; or
(b) the modification in question is not prohibited by the
treaty and:
(i) does not affect the enjoyment by the other parties
of their rights under the treaty or the performance of
their obligations;
(ii) does not relate to a provision, derogation from
which is incompatible with the effective execution of
the object and purpose of the treaty as a whole.
2. Unless in a case falling under paragraph 1(a) the
treaty otherwise provides, the parties in question shall
notify the other
parties of their intention to conclude the agreement
and of the modification to the treaty for which it
17
provides.
TERMINATION OF TREATIES
A treaty may be terminated or suspended according to
the terms of the treaty or with the consent of the
parties. A treaty with a definite period may also expire.
It may also end when the purpose for the treaty has
already been achieved. But a mere change of
government or severance of diplomatic relations does
not terminate or suspend a treaty.
Modes of terminating a treaty:
4. Material breach
5. Impossibility of performance
6. Change of fundamental conditions
(rebus sic stantibus)
Material Breach
Article 60. Termination or suspension of the operation
of a treaty as a consequence of its breach:
1. A material breach of a bilateral treaty by one of the
parties entitles the other to invoke the breach as a
ground for terminating the treaty or suspending its
operation in whole or in part.
2. A material breach of a multilateral treaty by one of
the parties entitles:
(a) the other parties by unanimous agreement to
suspend the operation of the treaty in whole or in part
or to terminate it either:
(i) in the relations between themselves and
the defaulting State, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it
as a ground for suspending the operation of the treaty
in whole or in part in the relations between itself and
the defaulting State;
(c) any party other than the defaulting State to invoke
the breach as a ground for suspending the operation
of the treaty in whole or in part with respect to itself if
the treaty is of such a character that a material breach
of its provisions by one party radically changes the
position of every party with respect to the further
performance of its obligations under the treaty.
3. A material breach of a treaty, for the purposes of
this article, consists in:
(a) a repudiation of the treaty not sanctioned by the
present Convention; or
(b) the violation of a provision essential to the
accomplishment of the object or purpose of the treaty.
4. The foregoing paragraphs are without prejudice to
any provision in the treaty applicable in the event of a
breach.
5. Paragraphs 1 to 3 do not apply to provisions
relating to the protection of the human person
contained in treaties of a humanitarian character, in
particular to provisions prohibiting any form of
reprisals against persons protected by such treaties.
Superventing impossibility of performance
Article 61.
1. A party may invoke the impossibility of performing a
treaty as a ground for terminating or withdrawing from
it if the impossibility results from the permanent
disappearance or destruction of an object
indispensable for the execution of the treaty. If the
impossibility is temporary, it may be invoked only as a
ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by
a party as a ground for terminating, withdrawing from
or suspending the operation of a treaty if the
impossibility is the result of a breach by that party
either of an obligation under the treaty or of any other
international obligation owed to any other party to the
treaty.
Rebus sic stantibus
Article 62.
- A fundamental change in the
circumstances which determined the parties
to accept a treaty, if it has resulted in a radical
transformation of the extent of the obligations
imposed by it, may, under certain conditions,
afford the party affected a ground for invoking
the termination or suspension of the treaty.
1. A fundamental change of circumstances which has
occurred with regard to those existing at the time of
the conclusion of a treaty, and which was not foreseen
by the parties, may not be invoked as a ground for
terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted
an essential basis of the consent of the parties to be
bound by the treaty; and (b) the effect of the change is
radically to transform the extent of obligations still to
be performed under the treaty. 2. A fundamental
change of circumstances may not be invoked as a
ground for terminating or withdrawing from a treaty:
(a) if the treaty establishes a boundary; or (b) if the
fundamental change is the result of a breach by the
party invoking it either of an obligation under the treaty
or of any other international obligation owed to any
other party to the treaty.
3. If, under the foregoing paragraphs, a party may
invoke a fundamental change of circumstances as a
ground for terminating or withdrawing from a treaty it
may also invoke the change as a ground for
18
suspending the operation of the treaty.
NOTE: The changes must have increased the burden
of the obligations to be executed to the extent of
rendering performance something essentially different
from the original intention.
Procedure of termination
Article 65. With respect to Invalidity, termination,
withdrawal from or suspension of the operation of
a treaty
1. A party which, under the provisions of the present
Convention, invokes either a defect in its consent to
be bound by a treaty or a ground for impeaching the
validity of a treaty, terminating it, withdrawing from it
or suspending its operation, must notify the other
parties of its claim. The notification shall indicate the
measure proposed to be taken with respect to the
treaty and the reasons therefor.
2. If, after the expiry of a period which, except in
cases of special urgency, shall not be less than three
months after the receipt of the notification, no party
has raised any objection, the party making the
notification may carry out in the manner provided in
Article 67 the measure which it has proposed.
3. If, however, objection has been raised by any other
party, the parties shall seek a solution through the
means indicated in Article 33 of the Charter of the
United Nations.
4. Nothing in the foregoing paragraphs shall affect the
rights or obligations of the parties under any
provisions in force binding the parties with regard to
the settlement of disputes.
5. Without prejudice to Article 45, the fact that a State
has not previously made the notification prescribed in
paragraph 1 shall not prevent it from making such
notification in answer to another party claiming
performance of the treaty or alleging its violation.
Article 66. For Judicial settlement, arbitration and
conciliation:
If, under paragraph 3 of Article 65, no solution has
been reached within a period of 12 months following
the date on which the objection was raised, the
following procedures shall be followed:
(c) any one of the parties to a dispute
concerning the application or the
interpretation of Article 53 or 64 may, by a
written application, submit it to the
International Court of Justice for a decision
unless the parties by common consent agree
to submit the dispute to arbitration;
(d) any one of the parties to a dispute
concerning the application or the
interpretation of any of the other articles in
Part V of the present Convention may set in
motion the procedure specified in the Annex
to the Convention by submitting a request to
that effect to the Secretary-General of the
United Nations.
Article 67. Instruments for declaring invalid,
terminating, withdrawing from or suspending the
operation of treaty
1. The notification provided for under Article 65,
paragraph 1 must be made in writing.
2. Any act declaring invalid, terminating, withdrawing
from or suspending the operation of a treaty pursuant
to the provisions of the treaty or of paragraphs 2 or 3
of Article 65 shall be carried out through an instrument
communicated to the other parties. If the instrument is
not signed by the Head of State, Head of Government
or Minister for Foreign Affairs, the representative of
the State communicating it may be called upon to
produce full power.
Article 68.
A notification or instrument provided for in Article 65 or
67 may be revoked at any time before it takes effect.
Authority to Terminate
- logically, the authority to terminate
should belong to the one who has the
authority to enter into the treaty.
- In the Philippines, the authority to
conclude treaties is shared between the
Senate and the President.
Succession to treaties
The Convention follows the “clean slate” rule. Article
16 says: “A newly independent State is not bound to
maintain in force, or to become a party to, any treaty
by reason only of the fact that at the date of the
succession of States the treaty was in force in respect
of the territory to which the succession of States
relates.” But a new state may agree to be bound by
the treaties made by its predecessor. The “clean
slate" rule, however, does not apply to treaties
affecting boundary regimes
Chapter 4
International Law and Municipal Law
Dualism vs Monism
The Dualist Theory
- holds that international law and
municipal law are essentially different from
each other. They differ as to source.
19
 Municipal law is a product of local custom or
of legislation whereas the sources of
international law are treaties and custom
grown among states. They differ as regards
the relations they regulate. Municipal law
regulates relations between individual
persons under the state whereas international
law regulates relations between states, They
also differ regarding their substance.
Municipal law is a law of the sovereign over
individuals whereas international law is a law
between sovereign states.
- For the dualists, when international
law and municipal law conflict, municipal law
must prevail. The dualists are positivists with
a strong emphasis on state sovereignty.
The Monist Theory
- international law and domestic law
belong to only one system of law. However,
there are two monist theories. One theory
holds that municipal law subsumes and is
superior to international law, and a second
theory, supported by Kelsen, holds that
international law is superior to domestic law.
The superiority of international law is seen as
flowing from a deep suspicion of local
sovereigns and from the conviction that
international law can imbue the domestic
order with a sense of moral purpose.
Municipal Law in International Law
- “Every State has the duty to carry out
in good faith its obligations arising from
treaties and other sources of international law,
and it may not invoke provisions in its
constitution or its laws as an excuse for failure
to perform this duty.” This follows the dualist
tradition and blocks domestic law from entry
into the international arena. Thus, a state
which has violated a provision of international
law cannot justify itself by recourse to its
domestic law. Moreover, a state which has
entered into an international agreement must
modify its law to make it conform to the
agreement
International law on Domestic Law
Dualism also rules when it comes to entry of
international law into the domestic sphere.
International law, unless it is made part of the
domestic system, has no role in the settlement of
domestic conflicts.
Q: How does international law become part of
domestic law for “dualists”?
A: There are two theories:
a. doctrine of transformation - based on
a strict dualist approach
for international law to become part of domestic law it
must be expressly and specifically transformed into
domestic law through the appropriate constitutional
machinery such as an act of Congress or Parliament.
Treaties do not become part of the law of a
state unless it is consented to by the state.
b. doctrine of incorporation -
Blackstone expressed this in his Commentary when
he said that:
the law of nations, wherever any question arises
which is properly
the object of its jurisdiction, is here adopted in its full
extent by the common law, and it is held to be part of
the law of the land.
Q: What does Philippine law follow?
A: International law can be used by Philippine courts
to settle domestic disputes in much the same way that
they would use the Civil Code or the Penal Code and
other laws passed by Congress.
Q: What elements of international law become part of
Philippine law by incorporation through Article II,
Section 2?
A: the principle of incorporation applies only to
customary law and to treaties which have become
part of customary law
Kuroda v. Jalandoni
Thus, although the Philippines was not a signatory to
the Hague Convention and became a signatory to the
Geneva Convention only in 1947, the Court held that
a Philippine Military Commission had jurisdiction over
war crimes committed in violation of the two
conventions prior to 1947. Apparently, the Court
considered jurisdiction over war crimes part of
customary law.
In Agustin v. Edu,
The court pointed out that the 1968 Vienna
Convention on Road Signs and Signals had been
ratified by the Philippine government under
Presidential Decree No. 207. “It is not for this country
20
to repudiate a commitment to which it had pledged its
word. The concept Pacta sunt servanda stands in the
way of such an attitude, which is, moreover, at war
with the principle of international morality.”10 Strictly
speaking, therefore, the incorporation here was done
not via the Constitution but by ratification.
Conflict between International Law and Domestic Law:
International Rule
Q: Which law should prevail?
A: It is an established principle that, before an
international tribunal, a state may not plead its own
law as an excuse for failure to comply with
international law. “Every State has the duty to carry
out in good faith its obligations arising from treaties
and other sources of international law, and it may not
invoke provisions in its constitutions or its laws as an
excuse for failure to perform this duty.”
This principle of the Vienna Convention has long been
established and is generally recognized. But an
exception is made to the rule by Article 46 of the same
Convention in cases where the constitutional “violation
was manifest and concerned a rule of its internal law
of fundamental importance.” The same article defines
the violation as “manifest if it would be objectively
evident to any State conducting itself in the matter in
accordance with normal practice and in good faith.” If
the treaty that is declared unconstitutional, however,
does not come under the exception, the treaty can be
ignored domestically but only at the risk of
international repercussions before an international
court.
Conflict between International Law and Domestic Law:
Municipal Rule
Domestic courts are bound to apply the local law. The
reason for this is that courts are generally able to give
to domestic law a construction which does not conflict
with international law
Q: But should conflict arise, what rule should be
followed and what are the possible consequences?
A:
 there should be no such conflict
between the Philippine Constitution or
statutes on the one hand and customary
international law on the other because the
Constitution when formulated accepted the
general principles of international law as part
of the law of the land.
 Should a conflict arise between an
international agreement and the Constitution,
the treaty would not be valid and operative as
domestic law. The Constitution, in Article VIII,
Section 5, 2(a) explicitly recognizes the power
of the Supreme Court to declare a treaty
unconstitutional.
 Under the “dualist” theory, which the
Constitution accepts, the unconstitutionality of
a treaty is purely a domestic matter. As Article
27 of the Vienna Convention on the Law of
Treaties says, “A party may not invoke the
provisions of its internal law as justification for
its failure to perform a treaty.”
Manila Prince Hotel v. Government Service Insurance
System
The Court said that the command of Article XII,
Section 10 was mandatory and self-executory.
Section 10 says: “In the grant of rights, privileges, and
concessions covering the national economy and
patrimony, the State shall give preference to qualified
Filipinos.”
The municipal rule for settling a conflict between
international agreement and legislation is different.
The rule followed in the United States is that treaties
and statutes are equal in rank and that, since neither
is superior to the other, the rule followed is that as
between an earlier treaty and a later law, the later one
prevails
HEAD MONEY CASES EDYE V. ROBERTSON 112
U^. 580 (1884)
A treaty is primarily a compact between independent
nations
a treaty may also contain provisions which confer
certain rights upon the citizens or subjects of one of
the nations residing in the territorial limits of the other,
which partake of the nature of municipal law and
which are capable of enforcement as between private
parties in the courts of the country.
A treaty, then, is a law of the land; it becomes an an
act of Congress whenever its provisions prescribe a
rule by which the rights of the private citizen or subject
may be determined
The Constitution gives it no superiority over an act of
Congress in this respect, which may be repealed or
modified by an act of a later date. Nor is there
anything in its essential character, or in the branches
of the government by which the treaty is made, which
gives it this superior sanctity.
so far as a treaty made by the United States with any
21
foreign nation can become the subject of judicial
cognizance in the courts of this country, it is subject to
such acts as Congress may pass for its enforcement,
modification, or repeal
Chapter 5
SUBJECTS OF INTERNATIONAL LAW: STATES
Subjects of International Law.
Subjects of international law are entities endowed with
rights and obligations in the international order and
possessing the capacity to take certain kinds of action
on the international plane.
Objects of international law are those who indirectly
have rights under or are beneficiaries of international
law through subjects of international law.
States: Commencement of their Existence.
The state as a person of international law should
possess the following qualifications: (
Montevideo Convention of 1933 on Rights and Duties
of States)
(a) a permanent population;
(b) a defined territory;
(c) government;
(d) the capacity to enter into relations with other
States
“state”
It is a community of persons more or less numerous,
permanently occupying a definite portion of territory,
independent of external control, and possessing an
organized government to which the great body of
inhabitants render habitual obedience.
“people” simply means a community of persons
sufficient in number and capable of maintaining the
permanent existence of the community and held
together by a common bond of law
Territory
“An entity may satisfy the territorial requirement for
statehood even if its boundaries have not been finally
settled, if one or more of its boundaries are disputed,
or if some of its territory is claimed by another state.
An entity does not necessarily cease to be a state
even if all its territory has been occupied by a foreign
power or if it has otherwise lost control of its territory
temporarily.”
Government
“that institution or aggregate of institutions by which
an independent society makes and carries out those
rules of action which are necessary to enable men to
live in a social state, or which are imposed upon the
people forming that society by those who possess the
power or authority of prescribing them.
Sovereignty means independence from outside
control. The Montevideo Convention expresses this in
positive terms as including “the capacity to enter into
relations with other States.”
Self-determination
All peoples have the right of self-determination. By
virtue of that right they freely determine their political
status and freely pursue their economic, social and
cultural development.”
two main categories
The first is the establishment of new states — that is,
the claim by a group within an established state to
break away and form a new entity.
The second does not involve the establishment of a
new state. This can simply be claims to be free from
external coercion, or the claim to overthrow effective
rulers and establish a new government, that is, the
assertion of the right of revolution; or the claim of
people within an entity to be given autonomy.
Recognition of states
Recognition thus means the act of acknowledging the
capacity of an entity to exercise rights belonging to
statehood.
Q: Can an entity claim to be a state before it is
recognized by other states?
A: there are two views on this
 the declaratory theory, is that
recognition is merely “declaratory” of the
existence of the state and that its being a
state depends upon its possession of the
required elements and not upon recognition
 constitutive theory, is that recognition
“constitutes” a state, that is, it is what makes a
state a state and confers legal personality on
the entity.
Recognition of Government.
22
It means the act of acknowledging the capacity of an
entity to exercise powers of government of a state.
If a change in government in an existing state comes
about through ordinary constitutional procedure,
recognition by others comes as a matter of course.
Cases:
THE TINOCO ARBITRATION
 recognition by other Powers is an
important evidential factor in establishing
proof of the existence of a government in the
society of nations.
 But when recognition of a government
is by such nations determined by inquiry, not
into its de facto sovereignty and complete
governmental control, but into its illegitimacy
or irregularity of origin, their non-recognition
loses something of evidential weight... [it]
cannot outweigh the evidence disclosed by
this record before me as to the de facto
character of Tinoco’s government....
 To hold that a government... does not
become a de facto government unless it
conforms to a previous constitution would be
to hold that within the rules of international
law a revolution contrary to the fundamental
law of the existing government cannot
establish a new government
 Non- recognition may have aided the
succeeding government to come into power;
but subsequent presentation of claims based
on the de facto existence of the previous
government ... does not work an injury to the
succeeding government in the nature of a
fraud or breach of good faith.
UPRIGHT v. MERCURY BUSINESS MACHINES CO.
 A foreign government, although not
recognized by the political arm of the United
States Government, may nevertheless have
de facto existence which is juridically
cognizable.
 The acts of such a de facto
government may affect private rights and
obligations arising either as a result of activity
in, or with persons or corporations within, the
territory controlled by such de facto
government. This is traditional law
Consequences of Recognition or Non-recognition.
A government, once recognized, gains increased
prestige and stability.
The absence of formal recognition, on the other hand,
bars an entity from all these benefits or, at least,
access to them may be suspended.
Recognition of a government, however, like
recognition of a state involves a highly political
judgment
Q: Does admission of a government to the United
Nations mean recognition by all members?
A: No. The recognition is only to the extent of the
activities of the organization.
Recognition of government does not mean approval of
the recognized government’s methods. Nor do
diplomatic relations connote approval; they are
intended merely to secure a convenience
The policy of the United States was to recognize de
facto governments when
(1) they control government,
(2) are not confronted with active resistance in the
country, and
(3) are willing to live up to international obligations.
Q: When is recognition terminated?
A: Recognition of a regime is terminated when
another regime is recognized. For as long as a state
continues to meet the qualifications of statehood, its
status as a state cannot be “derecognized.”
Succession of States.
Succession or Continuity
An existing sovereignty disappears either in whole or
in part and a new one arises thus giving rise to
questions of succession to rights and obligations.
Some on one extreme suggest that the new state
succeeds to no rights or obligations of the
predecessor state but begins with a tabula rasa.
Others on another extreme hold that the successor
state assumes all the obligations and enjoys all the
rights of the predecessor. Others hold that succession
has varying effects on state rights and duties.
Succession of States
When a state succeeds another state with respect to
particular territory, the capacities, rights and duties of
the predecessor
23
state with respect to that territory terminate and are
assumed by the successor state
As to state property, subject to agreement between
predecessor and successor states, title passes as
follows:
(a) where part of the territory of a state becomes
territory of another state, property of the predecessor
state located in that territory passes to the successor
state;
(b) where a state is absorbed by another state,
property of the absorbed state, wherever located,
passes to the absorbing state;
(c) where part of a state becomes a separate state,
property of the predecessor state located in the
territory of the new state passes to the new state.
With respect to public debts, subject again to
agreement between the states concerned,
responsibility for the public debt of the predecessor,
and rights and obligations under its contracts, remain
with the predecessor state, except as follows:
(a) where part of the territory of a state becomes
territory of another state, local public debt, and the
rights and obligations of the predecessor state under
contracts relating to that territory, are transferred to
the successor state;
(b) where a state is absorbed by another state, the
public debt, and rights and obligations under contracts
of the absorbed state, past to the absorbing state;
(c) where part of a state becomes a separate state,
local public debt, and rights and obligations of the
predecessor state under contracts relating to the
territory of the new state, pass to the new state.
With respect to treaties (already touched on in the
Chapter on Treaties), the Vienna Convention is
followed. The rules are:
(1) When part of the territory of a state becomes
territory of another state, the international agreements
of the predecessor state cease to have effect in
respect of the territory and the international
agreements of the successor state come into force
there. This reflects the “moving treaty rule” or “moving
boundaries rule.” If X has a treaty with Y, and part of Y
is transferred to Z, X may seek relief from treaty
obligation under “rebus sic stantibus.’’
(2) When a state is absorbed by another state, the
inter-national agreements of the absorbed state are
terminated and the international agreements of the
absorbing state become applicable to the territory of
the absorbed state. Third states may appeal to rebus
sic stantibus.
(3) When a part of a state becomes a new state, the
new state does not succeed to the international
agreements to which the predecessor state was party,
unless, expressly or by implication, it accepts such
agreements and the other party or parties thereto
agree or acquiesce. This applies the “clean slate
theory.”
(4) Pre-existing boundary and other territorial
agreements continue to be binding notwithstanding.
This is the uti possidetis rule.
Fundamental Rights of States.
Independence
Independence is the capacity of a state to provide for
its own well-being and development free from the
domination of other states, providing it does not impair
or violate their legitimate rights. As a right,
independence means the right to exercise within its
portion of the globe, to the exclusion of others, the
functions of a state.
Equality
It means equality of legal rights irrespective of the size
or power of the state. The UN Charter, Article 2,
provides that “the Organization is based on the
principle of the sovereign equality of all its Members.”
Peaceful co-existence
The theory was elaborated in 1954 as the Five
Principles of Co-existence by India and China and
includes mutual respect for each other’s territorial
integrity and sovereignty, mutual non-aggression, non
interference in each other’s affairs and the principle of
equality.
Some Incomplete Subjects.
Protectorates are largely of historical importance.
They are dependent states which have control over
their internal affairs but whose external affairs are
controlled by another state. They were sometimes
referred to as autonomous states, vassal states,
semisovereign or dependent states
Federal state. This is a union of previously
autonomous entities.
One arrangement may involve placing full authority in
a central organ while another arrangement might
lodge authority in the individual entities to the
detriment of the central organ. The central organ will
have personality in international law; but the extent of
international personality of the component entities can
be a problem.
Mandated and Trust Territories. Mandated territories
were territories placed by the League of Nations under
one or other of the victorious allies of World War I.
24
The mandate system was replaced by the trusteeship
system after World War II under the Trusteeship
Council.
Taiwan. Taiwan seems to be a non-state territory
which de jure is part of China. But it is too affluent and
strategically located to be over looked by international
actors.
The Sovereign Order of Malta.
it has diplomatic relations with over forty states
The Holy See and Vatican City.
“the sovereignty of the Holy See in the field of
international relations as an attribute that pertains to
the very nature of the Holy See, in conformity with its
traditions and the demands of its mission in the
world.” It has no permanent population
Chapter 6
OTHER SUBJECTS OF INTERNATIONAL LAW
1. International Organizations.
Establishment, international personality, immunity
An international organization is an organization that is
set up by treaty among two or more states
The Court observes that in order to delineate the field
of activity or the area of competence of an
international organization, one must refer to the
relevant rules of the organization and, in the first
place, to its constitution.
Organization may find it necessary to entrust its
agents with important missions to be performed in
disturbed parts of the world
Although international organizations have personality
in international law, their powers and privileges are by
no means like those of states. Their powers and
privileges are limited by the constituent instrument
that created them.
The Court goes on to point out that international
organizations are subjects of international law which
do not, unlike States, possess a general competence.
International organizations are governed by the
“principle of speciality," that is to say, they are
invested by the States which create them with powers,
the limits of which are a function of the common
interests whose promotion those States entrust to
them
the necessities of international life may point to the
need for organizations, in order to achieve their
objectives, to possess subsidiary powers which are
not expressly provided for in the basic instruments
which govern their activities.
It is generally accepted that international
organizations can exercise such powers, known as
“implied” powers.
IMMUNITIES OF UNITED NATIONS
Principles:
1. The Organization shall enjoy in the
territory of each of its Members such
privileges and immunities as are necessary
for the fulfillment of its purposes.
2. Representatives of the Members of
the United Nations and officials of the
Organization shall similarly enjoy such
privileges and immunities as are necessary
for the independent exercise of their functions
in connection with the Organization.
3. The General Assembly may make
recommendations with a view to determining
the details of the application of paragraphs 1
and 2 of this Article or may propose
conventions to the Members of the United
Nations for this purpose.
- Their immunities come from the
conventional instrument creating them a clear
example of the grant of immunity is the 1946
General Convention on the Privileges and
Immunities of the United Nations.
- It is a recognized principle of
international law and under our system of
separation of powers that diplomatic immunity
is essentially a political question and courts
should refuse to look beyond a determination
by the executive branch of the government,
and where the plea of diplomatic immunity is
recognized and affirmed by the executive
branch of the government.... it is then the duty
of the courts to accept the claim of immunity
upon appropriate suggestion by the principal
law officer of the government, ... or other
officer acting under this direction.
Purposes of the United Nations
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 1. To maintain international peace and
security, and to that end: to take effective
collective measures for the prevention and
removal of threats to the peace, and for the
suppression of acts of aggression or other
breaches of the peace, and to bring about by
peaceful means, and in conformity with the
principles of justice and international law,
adjustment or settlement of international
disputes or situations which might lead to a
breach of the peace;
2. To develop friendly relations among
nations based on respect for the principle of
equal rights and self-determination of
peoples, and to take other appropriate
measures to strengthen universal peace;
3. To achieve international co-operation
in solving inter-national problems of an
economic, social, cultural, or humanitarian
character, and in promoting and encouraging
respect for human rights and for fundamental
freedoms for all without distinction as to race,
sex, language, or religion; and
4. To be a center for harmonizing the
actions of nations in the attainment of these
common ends.
- UN is enjoined from intervening
matters which are within the domestic
jurisdiction
- “international constitutional
supremacy clause.”- “in the event of a
conflict between the obligations of the
Members of the United Nations under the
present Charter and their obligations under
any other international agreement, their
obligations under the present Charter shall
prevail.”
- The principal organs of the UN are
the General Assembly, the Security Council,
the Economic and Social Council (ECOSOC),
the Trusteeship Council, the International
Court of Justice (ICJ), and the Secretariat
General Assembly
- All members are represented. It has
plenary powers in the sense that it “may
discuss any question or any matters within the
scope of the ... Charter.”
- Distinguishes between “important
questions” and “other questions.”
Important questions are decided by a two-
thirds majority of the members voting and
present. “Other questions” require only a
majority
Security Council
- The Security Council has “primary
responsibility for the maintenance of
international peace and security.”
- There are 15 member states, five of
them permanent (China, France, Russia [in
place of the former USSR], United
Kingdom and the US). The others are
elected for two year terms in accordance with
equitable geographic representation.
- Distinguishes between “procedural
matters” and “all other matters.” Matters
that are not procedural require nine
affirmative votes, including the “concurring
votes of the permanent members.”
- But since the Charter does not specify
what matters are procedural, the Council
practice is that a decision on whether a matter
is procedural or not also requires the
concurrence of the permanent members.
Hence, a double veto by the permanent
members is possible. And an abstention is
considered a veto.
ECOSOC
- The ECOSOC has 54 member states
elected for three year terms. It has a large
number of subsidiary organs, among them the
UN Commission on Human Rights and the
Commission on the Status of Women.
Trusteeship Council
- The Trusteeship Council supervises
non-self governing territories. Its jurisdiction
has already become very limited
- The Council suspended operations
after Palau became independent on 1
October 1994.
Secretariat
- The Secretariat “shall comprise a
Secretary General and such staff as the
Organization may require.”
- The Secretary General is the chief
administrator of the organization and has the
power to “bring to the attention of the Security
Council any matter which in his opinion may
threaten the maintenance of international
peace and security.”
26
International Court of Justice cultured development in the region
- The International Court of Justice is and (2) to promote regional peace
the principal judicial organ of the UN. This will and stability through abiding respect
be treated in another chapter. for justice and the rule of law in the
Other Agencies relationship among countries in the
- Aside from the main organs of the region and adherence to the
UN, there are also specialized agencies. principles of the United Nations
Some of these are: the United Nations Charter.
Educational, Scientific and Cultural o Fundamental principles
Organization (UNESCO). The International adopted by the ASEAN members
Civil Aviation Organization (ICAO), the World which is contained in theTreaty of
Health Organization (WHO), the Food and Amity and Cooperation in Southeast
Agricultural Organization (FAO), the World Asia (TAC)
Bank and the International Monetary Fund  mutual respect for the
(IMF). independence, sovereignty,
Regional Organizations equality, territorial integrity,
- Regional Organization is neither and national identity of all
organs nor subsidiary organs of the UN. They nations;
are autonomous international organizations  the right of every
having an institutional affiliation with the UN State to lead its national
by concluding agreements with the UN. existence free from external
- They are international institutions interference, subversion or
created by international agreements for the coercion;
purpose of dealing with regional problems in  non-interference in
general or with specific matters be they the internal affairs of one
economic, military or political. another;
- regional organization of South East  settlement of
Asian nations is the ASEAN. differences or disputes by
- ASEAN was established on 8 August peaceful manner;
1967 in Bangkok, Thailand, with the signing of
 renunciation of the
the Bangkok Declaration by the five original
threat or use of force; and
Member Countries namely Indonesia,
 effective cooperation
Malaysia, Philippines, Singapore and
among themselves.
Thailand.
2. Insurgents
o The Bangkok Declaration set
- The first and only international
out guidelines for ASEAN’s activities
agreement exclusively regulating the conduct
and defined the aims of the
of parties in a non-international armed conflict
organization.
is the 1977 Protocol II to the 1949 Geneva
o three main objectives in mind:
Conventions
to promote the economic, social and
- They are armed conflicts which take
cultural development of the region
place in the territory of a High Contracting
through cooperative programs; to
Party between its armed forces and dissident
safeguard the political and economic
armed forces or other oiganized armed
stability of the region against big
groups which, under responsible command,
power rivalry; and to serve as a forum
exercise such control over a part of its
for the resolution of intra-regional
territory as to enable them to carry out
differences.
sustained and concerted military operations
o aims and purposes of the
and to implement this Protocol
Association are: (1) to accelerate
economic growth, social progress and

27
 - Protocol shall not apply to situations
of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence
and other acts of a similar nature, as not
being armed conflicts, even if the armed
forces of the territory may have been called
upon to suppress the disorder.
- requirements for “material field of
application “
o First, the armed dissidents
must be under responsible command;
o second, they must exercise
such control over a part of its territory
as to enable them to carry out
sustained and concerted military
operations and to implement this
Protocol.”
- in the conflict between the Philippine
government and the National Democratic
Front, the Philippine government has been
able to maintain consistently that the NDF and
its New People’s Army- Common Article 3and
not Protocol II is not applicable to them since
they do not have the status of subject of
international law
- Insurgent groups which satisfy the
material field of application of Protocol II may
be regarded as “para-statal entities
possessing definite if limited form of
international personality.” Such as
o First, they are recognized as
having belligerent status against the
de jure government. Other states are
therefore required to maintain
neutrality regarding them.
o Second, they are seen as
having treaty making capacity.
Common Article 3
- In the case of armed conflict not of an
international character occurring in the
territory of one of the High Contracting
Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following
provisions:
o (1) Persons taking no active
part in the hostilities, including
members of armed forces who have
laid down their arms and those placed
hors de combat by sickness, wounds,
detention, or any other cause, shall in
all circumstances be treated
humanely, without any adverse
distinction founded on race, color,
religion or faith, sex, birth or wealth,
or any other similar criteria.
o (2) The wounded and sick
shall be collected and cared for.
- does not convert the conflict into an
international one and therefore does not
preclude the possibility that any participant in
the conflict may be prosecuted for treason.
What this means is that, although rebels have
the protection of Common Article 3, they do
not thereby gain the status of subjects of
international law unless they satisfy the
“material field of application” of Protocol II
3. National Liberation Movements.
- National liberation movements are
organized groups fighting in behalf of a whole
people for freedom from colonial powers
- they are “peoples fighting against
colonial domination and alien occupation and
against racist regimes in the exercise of their
right of self-determination, as enshrined in the
Charter of the United Nations.”
- characteristics. First, they can be
based within the territory which they are
seeking to liberate or they might find a base in
a friendly country, hence, control of territory is
not necessary
- Their legitimacy rather comes from
their goal: to free themselves from colonial
domination, or a racist regime or foreign
occupation. Briefly, their goal is self-
determination.
- Although control over territory and
people is not essential to their legitimacy, the
ultimate goal of controlling a definite territory
is necessary for them to be recognized as
international subjects.
4. Individuals
- In international law individuals were
objects or at best “beneficiaries” of
international law
- In sum, in contemporary international
law individuals possess international legal
status. They have a few obligations deriving
from customary international law. In addition,
28
 procedural rights enure to the benefit of authorities of the country was
individuals not vis-d-vis States regarded as an “occupation” of a
- the international legal status of “terra nullius”
individuals is unique: they have a lopsided - island of Palmas (p.104)
position in the international community o facts: As defined by the
- To differentiate the position of Spain, the said island is within the
individuals from that of States, it can be boundaries of the Philippines and in
maintained that while States have that Spain was ceded by United
international legal personality proper, States, on the other hand,
individuals have a limited locus standi in Netherlands claim territory over the
international law. Moreover, unlike States, said island by virtue of an agreement
individual have a limited array of rights and made by Nether lands and United
obligations: on this score, one can speak of a states
limited legal capacity (in this respect they can o Issue: whose has the better
be put on the same footing as other non-State claim of territory
international subjects: insurgents, o Ruling:
international organizations, and national
liberation movements).  Territorial
sovereignty, as has already
been said, involves the
Chapter 7 exclusive right to display the
TERRITORY: LAND, AIR, OUTER SPACE activities of a state. This right
has as corollary a duty: the
Territory in International Law
obligation to protect within the
- Territory as an element of a state
territory the rights of other
means an area over which a state has
states, in particular their right
effective control
to integrity and inviolability in
- control over territory is of the essence
peace and in war, together
of a state. The exact boundaries might be
with the rights which each
uncertain, but there should be a definitive
state may claim for its
core over which sovereignty is exercised
nationals in foreign territory.
- Acquisition of territory more precisely
 Territorial sovereignty
means acquisition of sovereignty over
cannot limit itself to its
territory.
negative side, i.e., to
- Territory includes land, maritime
excluding the activities of
areas, airspace and outer space.
other states; for it serves to
divide between nations the
Modes of Acquisition of Sovereignty over
space upon which human
Territory
activities are employed, in
- The traditional modes of acquisition
order to assure them at all
include discovery and occupation,
points the minimum of
prescription, cession, conquest and
protection of which
subjugation, and accretion.
international law is the
Discovery and Occupation
guardian
- Occupation is the acquisition of terra
 The principle that
nullius, that is, territory which prior to
continuous and peaceful
occupation belonged to no state or which may
display of the functions of
have been abandoned by a prior occupant
state within a given region is
o acquisition of sovereignty
a constituent element of
through such agreements with
territorial sovereignty is not

29
 only based on the conditions
of the formation of
independent states and their
boundaries (as shown by the
experience of political history)
as well as on an international
jurisprudence and doctrine
widely accepted;
 [E]ven admitting that
the Spanish title still existed
as inchoate in 1898 and must
be considered as included in
the cession under Article III of
the Treaty of Paris, an
inchoate title could not prevail
over the continuous and
peaceful display of authority
by another state; for such
display may prevail even over
a prior, definitive title put
forward by another state.
 The title of contiguity
by United States when they
ceded Spain, understood as a
basis of territorial sovereignty,
has no foundation in
international law....
 The Netherlands title
of sovereignty, acquired by
continuous and peaceful
display of state authority
during a long period of time
going probably back beyond
the year 1700, therefore
holds good....
 The Island of Palmas
(or Miangas) forms in its
entirety a part of Netherlands
territory.
- a claim to sovereignty based not upon
some particular act or title such as a treaty of
cession but merely upon continued display of
authority, involves two elements each of
which must be shown to exist: the intention
and will to act as sovereign, and some actual
exercise or display of such authority.
Prescription
- Prescription is also recognized as a
mode of acquiring sovereignty over territory.
- Like occupation, however,
prescription requires effective control . But
unlike occupation, the object of prescription is
not terra nullius
- the required length of effective control
is longer than in occupation
- prescription might be negated by a
demonstrated lack of acquiescence by the
prior occupant
Cession
- Cession, or acquisition of territory
through treaty, is another mode.
- Thus the United States acquired the
Philippines through the Treaty of Paris.
- A treaty of cession which is imposed
by a conqueror is invalid. Thus there may be
a situation where what prevails is merely a de
facto regime
Conquest
- Conquest was in earlier days the
taking possession of a territory through armed
force
- For acquisition of conquered territory,
it was necessary that the war had ended
either by treaty or by indication that all
resistance had been abandoned
- the conqueror must have had the
intention of acquiring the territory and not just
of occupying it temporarily
- Today conquest as a mode of
acquisition is proscribed by international law-
“The territory of a State shall not be the object
of acquisition by another State resulting from
the threat or use of force. No territorial
acquisition resulting from the use or threat of
force shall be recognized as legal.”
Accretion and Avulsion
- Accretion and avulsion can also lead
to sovereignty over territory
- sovereignty by operation of nature
- Accretion is the gradual increase of
territory by the action of nature; avulsion is a
sudden change resulting for instance from the
action of a volcano.
Is contiguity a mode of acquisition?
- The Las Palmas case is argument
against contiguity as a basis for sovereignty
when it says: “it is impossible to show a rule
of positive international law to the effect that
islands situated outside the territorial waters
30
 should belong to a state from the fact that its
territory forms part of the terra frma.”
Airspace
- Each state has exclusive jurisdiction
over the air space above its territory.
Therefore, consent for transit must be
obtained from the subjacent nation.
- Governing principles
o The contracting States
recognize that every State has
complete and exclusive sovereignty
over the airspace above its territory.
o This Convention shall be
applicable only to civil aircraft, and
shall not be applicable to state
aircraft.
o Aircraft used in military,
customs and police services shall be
deemed to be state aircraft.
o No state aircraft of a
contracting State shall fly over the
territory of another State or land
thereon without authorization by
special agreement or otherwise, and
in accordance with the terms thereof.
o The contracting States
undertake, when issuing regu-lations
for their state aircraft, that they will
have due regard for the safety of
navigation of civil aircraft.
- Flight over territory is classified into
“non-scheduled” and “scheduled” fights.
o Right of non-scheduled flight
 shall have the right,
subject to the observance of
the terms of this Convention,
to make flights into or in
transit nonstop across its
territory and to make stops for
non-traffic purposes without
the necessity of obtaining
prior permission, and subject
to the right of the State flown
over to require landing.
 Each contracting
State nevertheless reserves
the right, for reasons of safety
of flight, to require aircraft
desiring to proceed over
regions which are
inaccessible or without
adequate air navigation
facilities to follow prescribed
routes, or to obtain special
permission for such flights
o Scheduled air services- No
scheduled international air service
may be operated over or into the
territory of a contracting State, except
with the special permission or other
authorization of that State, and in
accordance with the terms of such
permission or authorization
Outer Space
- The assertion under air space law
used to be that air sovereignty extended to an
unlimited extent, usque ad coelum.
- It is now accepted that outer space,
wherever that might be, and celestial bodies,
are not susceptible to appropriation by any
state.
- Principles
o The exploration and use of
outer space, including the moon and
other celestial bodies, shall be carried
out for the benefit and in the interests
of all countries, irrespective of their
degree of economic or scientific
development, and shall be the
province of all mankind. Outer space,
including the moon and other celestial
bodies, shall be free for exploration
and use by all States without
discrimination of any kind, on a basis
of equality and in accordance with
international law, and there shall be
free access to all areas of celestial
bodies.
o Outer space, including the
moon and other celestial bodies, is
not subject to national appropriation
by claim of sovereignty, by means of
use or occupation, or by any other
means.
o States Parties to the Treaty
shall carry on activities in the
exploration and use of outer space,
including the moon and other celestial
31
bodies, in accordance with
international law, including the
Charter of the United Nations
o States Parties to the Treaty
undertake not to place in orbit around
the Earth any objects carrying nuclear
weapons or any other kinds of
weapons of mass destruction
o States Parties to the Treaty
shall regard astronauts as envoys of
mankind in outer space and shall
render to them all possible assistance
in the event of accident, distress, or
emergency landing on the territory of
another State Party or on the high
seas.

32