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    Chapter 4 INTERNATIONAL LAWMAKING ‘The creation of legally binding rules for the international com- munity has undergone certain stages. From the beginning, custom ‘and treaties evolved spontaneously as methods for international lawmaking. In 1921, the process admitted the general principles of law recognized by civilized states. In the 1950s, the attempt was started to grant legislative powers to the UN General Assembly. In the 1960s, the concept of jus cogens was introduced! At the beginning of the establishment of the international states enjoyed a wide latitude of freedom. Consequently, custom and treaties bound only those states that accepted them. And each method had the same rank as the other; each could derogete or supplant the other. At that time, up until now, the fundamental feature of the international community was the freedom of states. Unlike treaties and custom which were rules based on the. ressed as “the general principles of law recognized by and is now embodied in the International Court of such as certain principles ith, and the principle of res ‘The principles must be general in character, and ‘id down in the national law systems of dominant imore in League of Nations, Permasient Court of International Jus ‘lee, Adotsory Committe of Jurist, 906 ua CHAPTER « ns. INTERNATIONAL LAWMAKING states. The formula gradually evolved into a secondary source of Jaw, but in our time it has fallen into innocuous desuetude. After attempting to create a new source of law with the formula of “general principlesithe international community—notably comprising the developing states who constitute a strong majority in the UN General Assembly—sought the power to promulgate new intemational lawin the United Nations. This attompt failed, because of resistance from the developed states of the West, including the socialist countries. The opposition cited the UN Charter, Articles 10-14, providing that General Assembly recommendations do not possess any binding foree. ‘The latest attempt at international lawmaking took place in the late 1980s, when the socialist countries—supported by Third World states—successfully moved to elevate certain principles toa higher rank than that enjoyed by ordinary rules embodied in custom and treaties. As a, result of this legal hier: are not allowed to deviate from the supreme prin: the treaty would be null and void. The supreme prin elf-determination of peoples, prohibition of aggression, genocide, Jevery, racial discrimination, and racial segregation or apartheid ‘The development of supreme international standards was in part an imitation of domestic standards, which draw a distinction between jus cogens and jus dispositioum. Jus cogens are rules oF subjects in their private dealings. Accordingly, the 1969 Vienna Convention on the Law of Treaties, Article 53, defines jus cogens, and provides that treaties contrary to peremptory rules of general ‘international law are null and void. Subsequent declarations on specific peremptory norms made by certain states in the United Nations support tl i the principle of jus cogens has evolved into inter’ ‘Whether created by multilateral treaties or by custom, possess special legal force, in that such rules prohibit contrary norms ‘and invalidate norms that violate the prohibition. To belong in this cacegory, the norms must be regarded as peremptory by the most important and representative states of the three main groupings of States: Western, socialist, and Third World "Cassone 176-79 na INTERNATIONAL LAW ‘With Philippine Caaes and Materials and ASEAN Instruments jurisprudence that interprets at and treaties. The ICJ Statute, 59 provides: “The decision of the Court has no binding foree except betweon the parties and that particular case.” And yet, Article $8, para. 1, authorizes the Court to apply, “subject to the provisions ial decisions and the teachings of the most highly ‘sts of the various nations, as eubsidiary moans for ion of rules of law.” Thus, while the Court's decisions do not constitute legally bind- precedent, even so they are a subsidiary means for determin- ‘ional law, President Winiarski of the Court explained: hout being bound by stare decisis as a principle or rule, it often seeks guidanee in the body of decisions of the former Court, and the result is a remarkable unity of precedent, an impor- ‘tant factor in the development of international law.”* SOURCES OF INTERNATIONAL LAW. ‘The sources provide the criteria for recognizing those legal me, which we call “international law.” There are two categories Pheee sources: those that create law, and those that identify the On the one hand, an example of a law-ereating source is a treaty, when it creates law—not merely obligations—for the parties. ‘Another example of a law-ereating source are “general principles of Taw” which embody rules independent: of custom or treaty. On the (1) The Court, whose finetion is to decide in accordance with international law such disputes as are submitted to it, shall apply. ‘national conventions, whether general or par~ Jhing rules expresely recognized by the contest- 162 ICL Yearbook 1 nto aay “All souoas azo, in some way, bath law CHAPTER « no INTERNATIONAL LAWMAKING (b) international custom, as evidence of a general prac- tice accepted as law: (©) the general principles of law recognized by civilized nations; @ _ subject to the provisions of Articl sions and the teachings of the most highly q) of the various nations, as a subsidiary means for the determi. nation of rules of law. 2) This provision shall not prejudice the p to decide a case e aequo et bono, if the parties ag Article 98 is not a complete list of sou any mention of UN General Assembly res« in Nicaragua v. USA Moreover, Article 38 does not make an ‘plicit hierarehy of the sourees, although in general the sources should enjoy the priority indicated by the order in which they are ‘enumerated, subject to the principle of jus cogens. ‘Both treaties and custom depend upon the consent of states. In ‘case of conflict, resolution should be based on the maxims governing norms arising from the same source. These maxims are: + Lex posterior derogat priori—a later law repeals an earlier law; + Lex posterior generatis non derogat prioi tia later Jaw, general in character, does not derogate from an earlier Jaw which is special in character; + Lex specialis derogat generali—a special law prevails over a generel law. TREATIES. Treaties are the most important source of internation: ‘because they are the only way by which states can conseiously One reason fe these omissions may be that As Jomatic orrreepondenee are not tra sources of law, Drictice and thus subeervod under the head of customary la ¥ ‘he question as to svhst we mean by souroea’” Dixon 19. 71986 103 Rap. 14. "Cassoeo 180, 16 INTERNATIONAL LAW. With Philippine Cases and Materials ond ASEAN Instrumente create law. Since treaties are the result of a conscious act of states, ‘hey are more likely to respect the ly two parties, the treaty is bilate ergo omnes (against the whole worl territorial boundaries, A treaty governs the relationships of its parties among them- selves. Hence, a treaty does not apply to the relationship between a state which is a party, and a state which is not a party. Further- does not bind a state which is not a party, even if ion under the treaty is identical to the obligation under customary law, When a treaty eodifies binding on alls In addition, by eustomar Convention ‘An example of this kind of treaty is the Vienna Diplomatic Relations When a treaty both codifies existing customary law and provides for progressive development of that law, then itis binding on states parties, and, only insofar as it codifies existing customary law, it also binds states not parties. This kind of treaty is exemplified by the 1969 Vienna Convention on the Law of Treaties. When a treaty provides for future conduct, it will bind non. parties, only if state practice follows the treaty provisions, and thus gives to new customary law. An example of this kind of is the concept of the Exclusive Keonamic Zone, or: the 1982 Law of the Sea Convention, which came 194. The EEZ concept is now part of customary law.* However, the treaty provision “should be of a fundamentally norm- creating character such as could be regarded as forming the basis of a general rule of law.” In brief, as sourees of international law, treatios and custom cHAPTan « nu INTERNATIONAL LAWMAKING + A treaty provision can bind a state not part to the treaty, if the provision articulates what is already customary international law. + If a treaty provision represents new Inv, it binds only staves parties. + Ifa treaty provision representa new law, there is a possi- Dility that it could graduate into a norm-creating provision, Le, the foundation of a rule which passes into the general ‘corpus of international law. If such a provision is later accepted as such by the opinio juris, it becomes binding ‘even on countries which are not party to the treaty. + Ifa tresty provision simply repeats an existing norm, the provision is obligatory on all states, However, for this result to be achieved, the treaty provisi possess a fundamentally norm-ereating character. This that the treaty prohibits any derogation, q vation, or res- ition with respect to the treaty provision. It is not necessary that there should be passage of any considerable period of time, provided that the treaty has very widespread participation by states whose interests are specially affected. A conventional distinetion has been drawn betseeen contract ptreaties which impose obligations, and lawmaki! eaties, which create law. Contract treaties cresto specific obligations, The basis ‘this proposition is the customary internationa! law that binds them. Thus, both contract treaties and lawmaking reaties have the same legal effect of binding the parties. Their only is in their purpose. A contract treaty intends to achieve "particular object, while a lawmaking treaty intends to govern the onductof states for the indefinite future." At present, the most important document. on treaties is the 1969 Vienna Convention on the Law of Treaties. ternational lew, but some of its provisions “North Sea Continental Shelf Casos 1980 IC Rep. $3 1 Vienna Convention on the Lav of Treaties, Ari eaty in force is binding upon the parties to it and must be 0d faith” Dixon 21-24, 18 INTERNATIONAL LAW ‘With Philippine Casas and Materials and ASEAN Tnstrumen:s| ius cogens are absolute grounds for invalidity, meaning invoked by any state party, and not merely by the with its purpose." Unless the other parties object, into force between them and the reserving state. The regime is to encourage all states to become party to ‘it contains some unacceptable provisions. spect to the contents of treaties, for the fret time, Article treaties are null and void when they contradict jus jptory rules of general international law. This is a on the freedom of states, which is subordinated to junt basic values of the international community. ms, Articles 31-88 adopt \terpretation according to purpose, and concomitantly, 1a according to what will make a treaty provision most the available grounds. One is material breach, a repudiation of the treaty not sanctioned by wention, or the violation of a provision essential to ireumstances, except when the treaty esteblishes a boundary, or when the fundamental change is the result of a breach sopoan Court of Human Rights, Judgment of 28 April 1988, id mad an interpretative declaration tothe Europesn Con. vodoma, The Buropoan Court held cd on invalid reservation to the Convention. CHAPTER « ue INTERNATIONAL LAWMAKING by the party invoking it. Another ground is jus cogens; Article 64 provides that if a new peremptory norm of international Jaw emerges, any existing treaty which is in conflict with that norm ‘becomes void and terminates.” cusTOM. Although treaties are now the primary source of international law, custom—the foundation of modern international law—stil constitutes a major source. For one thing, custom seems to fill the need to develop general principles when Law of the Sea Convention, until it came in elicit universal acceptance for its lew responsive to the needs of the time, and is thus more flexible than the treaty provess. As a source of law, custom illustrates the dilforence between international law and national law. When a rule of customary international law is violated, the violation could be the starting point of the development of a new (contrary) custom. This is the ym is formed by a concurrence of state practice and opinio the Belief that @ norm is accepted as law. These two However, custom is not based on the: nostate has a veto over the emergence of a cu: any given state; ary norm. In other ‘Wien « ground for termination arise, the treaty dace not 120 INTERNATIONAL LAW : jie Cases and Materials and ASEAN Instsuments ral act from being opposable. But if manages to emerge, it is a question state will exempt it from the application of ‘the new customary rule* eS ee eee foreign nationals would require a higher degree of consistency than a passive obligation, such as the duty to allow free between a diplomatic envoy and his government. Jee al eon sas ert guia eu daa ot n a law giving limited privileges to a state, Thus, -annot be redueed to a formula consisting of percentages Jing whether state practice 1 practice of thos . For example, a rule on the law of the id need the assent of the major maritime powers, which ited by the assent of landlocked states.” In some the affected states may need to be unanimous, in ing custom would bind all members of a specific CHAPTER 4 1m INTERNATIONAL LAWMAKING is @ question whether the st e bound by the evolving 1 must make both initial objector has no power to provent the formati other words, no state has the capability to vet ‘under exceptional circumstances, one state co ‘emerging rule, if that state is a preeminer ina particular field, such as the United State: exploration, Eventually, such a persistent objector ‘bow to the pressure to conform with the rest of the w Ifa rule of customary law has already been tery a lel i grgin An Geom. Wied of rule is the duty to pay compensation for the nationalization of foreign-owned property. This rule is supported by cal states such as the United States and United Kingdom, by the developing states. In the recent past, controversy has developed on the issue of whether new states are bound by international law, which they view as colonial. For such new states, the grievance procedure should be ation, and then to absolve the subsequent liability. ‘The second is to replace the old rule wi ‘means of widespread objections or devic view that new states are exempted from ‘unacceptable to the old states. be inter the same way that treaties may ei Regional or local custom is any practice recogni "or examnpa, Norway was x persistent objector to the ™Aaylum Case (Columbia v. Per), (Case, 1960 105 Rep. 6, an derogate from what is international. -ment of time, like the elements of consistency and gen- nding to the subject of the rule.” The element of 9d of time. But in extreme- resulting in “instant custom.” One example space, which does not make re In this case, opinio juris—the belief ing—is provided by a series of Gener istomary law, depends upon For example, a claim th ‘her evidence or explanation for that particular course of conduct. Conversely, a claim that a right or a privilege grante: tes has turned into customary law would be able to om the mere fact of repeated state activity. Thus, the element of opinio juris will require different degrees of proof, depending upon the substance of the rule.” been supplanted by treaty as , because treaties are more , and obviate the necessity of proving consistent state practice, Where custom and treaty stipulate the ‘same legal obligations, then a state would be bound by one or both, under the theory of parallel obligations. But where custom and ‘treaty confit, there is less agreement on the effect. I} Series S, No, 10, In the North Sea Cases, the Court role Leney or even habitual charactor” af a practice in not enough to ota rohit Hene sears tobe a confence of opinn jure and treaty cbligations, CHAPTER 4 123 INTERNATIONAL LAWMAKING If the treaty is Iater in time than custom, the treaty will pre- same dispute could possibly for different states, and overwhelming consensus to abandon the However, a treaty does not prevail over jus ‘of whether the rule of jus cogens developed before or after the treaty came into foree. No treaty can modify jus cogens, On the contrary, any treaty provision conflicting with a rule of jus cogens is void. ‘Thus, the 1969 Vienna Convention on the Law of Treaties provides: Art. 53, A treaty is void if, at the time of sion, it conficts with a peremptory norm of al community no derogation ly by a subse- i the same accepted and recognized by the interna of States as a whole is permitted and which can be modifies quent norin of general international law character. Since 1969, generations of international law students have srappled with the mysterious Article 53, The obvious question is: What are the rules of jus cogens? ‘Thore is only an emerging consensus at this time, because the answe decided cases. Thus, jus cogens includes s + Sovereign equality of states. Freedom of the high seas." 1s INTERNATIONAL LAW. With Philippine Cases and Mazetals nd ASEAN Instruments self determination.* are easily accessible, but how do we access customary another way, how do we access records of the actual practice of states? The published evidence would consist of the following: 1. Archives of the Foreign Ministry; 2, Laws and judicial decisions of a state; Judgments of international tribunals and writings of nal lawyers; is intended to codify customary . @ state not party to the treaty would be bound by ss treaty, but as customary law, In this sense, the ther, even if the treaty rule might not be an accurate codification of customary law.” As evidence of customary law, UN General Assembly reso- lutions are not conclusive;* and like treaties, they are open to the defense that a resolution is an incorrect statement of customary law. ‘UN resolution depends upon the mimber of number of opposing states is substantial, as lution would have reduced value, as evidence CHAPTER & 125 INTERNATIONAL LAWMAKING ‘Not all UN resolutions constitute evidence of customary law. ‘Such evidence is provided, only if the resolution declares that a rule is the law, But no such evidence can be construed from a resolution meaning “rules which are neither strictly binding nor completely resents the ste new law or to change existing law, because the determining factor should be the actual practice of states. Compared to treaty law, customary law is a much more practice is a subjective question liable to from different judges and different states. Adversaries will either sabotage the claimed customary rule, or insist on an exception to the rule, or try to start a new customary law.® GENERAL PRINCIPLES OF LAW. allowing for variations in political and economic development. Conceivably, the need for a new adjective could be filled by using ‘ries and represen their which internat 196 INTERNATIONAL LAW ‘With Phtippine Cases and Materials and ASEAN Instruments {he term “ponceloving” under the UN Charter, rather than the term Under the strict positivist view of intornational law, the only srees only, because general principles law, which are doctrines or bundles of rights. In this sense, general principles such a2 freedom ofthe high seas or sovereign equality would be merely criptive, Since states ar ‘trol the process by ir power to con- , general principles ehould national law we mean doc- enacted through state practice—in other words, to the principles found in treaty or custom, jer treaty or custom. Whenever states desire of national law, they have to formalize it in is the distinction between general principles on the saties and custom on the other hand? The distinetion in the concept of every legal system and, therefore, part of tho lew of every state. : CHAPTER 4 a2 INTERNATIONAL LAWMAKING Tn this sense, general principles of law + ‘The right of legal actors to judici ‘+ The right to be heard before judgment.” ‘+ Bxclusion of circumstantial evidence. + ‘The right to compensation for injury.” + Concept of trusts." + Concept of subrogation.” + Concept of limited lia + Right to due process, ie., notice and hearing, before judg- ment by an international administrative tribuns + Conoept of contracts, eg, contracts of employment in international organizations, and oil concessions."* + Confidentiality of written communications between lawyer and dient. + Prohibition of torture." + Liability for damages. + Prohibition of unjust enrichment, ‘+ Right of passage over territory. + Administrative law. + Doctrine of res judicata. General principles perform a useful f in treaty law and customary law. However jon by filling gaps “SUS Diplomatic and Consular Seffin Tehran Cose (US v. Iran) 198010) Rep. 8; Nicaragua v. USA, 1984 ICJ Rep. ‘Barcelona Traction Case, 1970 ICH Rep. 3 ‘aieehuret 6 Bd. 3598, 128 INTERNATIONAL LAW CHAPT! a With hippie Cabra Mls nd ASEAN Tren INTERNATIONAL LAWMAKING ef lied for, only when the principle is suited to the i & it here the facts are substantially the same; regardless of whother environment. Thus, the Restatement (Third) of (Bape ceases re Bie ions Law of the United States provides: "General to the major legal systems, even if not incor- Since the stare decisis doctrine does not apply in international Porated or reflected in customary law or international agreement, law, then international courts have no obligation to follow previous may be invoked as supplementary rules of international law where Aecisions, although they are free to take previous decisions into zr account, and they invariably do.* Article 88 exprosely deseribes ju means for i valet ions can be appreciated as , at Teast with respect to the ICI, what has developed in practice goes beyond the contemplation is not necessarily a principle of international law, of Article 38, Where the ICJ is concerned, its ju ns have mply a reference to the request of the parties, served not only as “subsidiary means,” but in fact as outright sources of international law. ‘The phrase “international decisions’ includes not only IC decisions, but also international arbitral awards, and decisions of national courts. the three sources of interna- 's, international custom, and gene then goos an to provide that the ‘Akohurst, citing the Reparation for Inj case, end the Fisheries ease, contends tbs tat ea Ia to the provisions of Article 69, judicial Car eae arneracter teachings of the most highly qualified law which soon likely rious nations as a aube ans for Pesan to achie vious nation as aubiiory means fo ieee ane of rules of law. (Emphasis added) that judges ean by themselves create doing, ICJ justices write decisions th “subsidiary means for the determinate of Such examples of judge-made law are fou cases: 9 states that “the decision of the Court hae no binding sveon the partes and in respect of that parties repudiation of the princip] ts ete ner” whith andes tthe pe stand by precedent, and should not disturb a settled point ® Mon i ot specifically, store decisis is the doctrine that, whos the cours hee + Reparation for Injuries case" concerning the legal once laid down of law as applicable to a certain state of Siegen by Ob bibe [naeaad Nato) facts, it will adhere to that principle, and: apply it to the future cases, * Genocide case,*eoncerning the eorvation toa treaty Such asta asa party to the treaty by some states, but not by others. in the following "flame v. Moody, Tex. Civ. App, 46 SW. 180 INTERNATIONAL LAW. With Philippine Cases and Materials and ASEAN Tnstrumenta + Fisheries case,** concerning the inference of the existence of customary rules from claims to areas of the sea by a state. fim case," concerning the genuine link between an and a claimant state. + Anglo-Norwegian Fisheries case concerning baselines from which the territorial sea may be drawa. of the Use by a State of Nuclear Weapons in Armed. case. + Regional courts, such as the European Court of Justi under the Buropean Union.” ta * Human rights courts, such as the Commission on Human example is the Rights, under the 197% Human Rights, iter-American Convention of + International criminal eourts, such as the ICC, e 1998 Rome Treaty.” ve vention forthe Protection of Human Rights and Fundamental son $ Soptember 1953, ‘or by a deft statute under a ted agunst the treaty were: US, 180, Libya, Qa, 0 US lobbied tm amend the tent tseae te porer or to protect US peacekeeping troop abroad fom polteally CHAPTER « 1 INTERNATIONAL LAWMAKING ‘+ ‘Tribunal for the Law of the Sea, under the 1982 Law of the Sea Convention, which entered into force on 16 November 1994, Under Section 2, decisions ar ‘as between, the partios, but no provision is made If such courts render decisions that cor who will settle the conflicts? This unanswere the international community the respon near future an international supreme court ‘authority of a court of last resort. arbitrators negotiate and employ questions of fact and law. Arbiti compromise, whilejud An arbitral tribun: while a judicial court is condut shall eanform global community, arbitral tribunals act judic tain extent, and thus contribute to the develop law. The records apparently show that intern: have made “the consistent effort to ascertain and apply principles of law approved by the best authorities, and. .... follow pertinent prior adjudications where any existed.” Among the international arbitral tribunals are the Permanent Court of Arbitration created by the Hague Conferences of 1899 and 1907, and a number of mixed-claims tribunals, such as the Iran- US Claims Tribunal. Some of the awards that have added to, or clarified, international law are as follows: + Alabama Claims arbitration, holding that Britain had infringed the rules of neutrality and hence had to pay damages to US. The Alabama and other ships were built, in Liverpool and used by the Confederate states to capture ‘some 70 Federal ships during the American civil war, + Island of Palmas arbitration,” holding that in a territorial dispute, Spain could not convey to the US greater rights "AJB, Moorg, I INTERNATIONAL ADJUDICATIONS ANCIENT AND MOD: "BRN (1928-1986), font pp. 99-40, BB, Moore I INTERNATIONAL ARBITRATIONS, RIAA 825; 4 TLR 8, 182 INTERNATIONAL LAW : (Cases and Materials and ASBAN Tnatruments elf possessed. The US claims were based on an. ty with Spain which ceded the island. jernational custom. As prece- court decisions may be merely influential, or binding tributed to the devel. law, particularly of international custom, case.” The US Supreme Court examined international custom exis iving fishing vessels, honestly pursuing th i, from belligerent capture during wartime. The US Supreme Court took note of the series tions for preventing collisions at sea, adopted by government in 1863 and thereafter adopted by id virtually all major maritime states, The US ‘sruled that after 1863, a new international developed with respect to maritime law gov- ig collisions at gea, ig to the statutes of any nation extra- t treating them as general maritime is recognition of the historical fact that, by common iankind, these rules have heen acquiesced in aid of ion. Of that fact we think we may take judicial CHAPTER 4 133 INTERNATIONAL LAWMAKING notice. Foreign municipal Iaws must indeed be proved as facts, but it ie not so with the law of nations. WRITINGS OF PUBLICISTS. Article 98, para. 1, subpara. d, provide apply “the teachings of the most highly qu: various nations, as subsidiary means for the de: of law.” Akehurst says that the word “publ writers,"" adding: Ina nutshell, writers quote states a writers, at least when it suits their interes Who are the most highly qualified put! to eighteenth centuries, they were Grotiu and Vattel. In the recent past they were Gi concept of the contiguous zone in the law of the ‘Verdross, Rosseau, and Oppenheim. At preset extremely difficult to draw up, because of cations by writers on international law. What Starke calls “juristic works, ‘not an independent source of la international custom. Learned writings possess evident in that they furnish reliable evidence of the law. ‘The important function of writers is to deduce customary rules “from a coincidence or cumulation of similar usages or practices." As explained by Justice Gray of the US Supreme Court:* ‘Where there is no treaty, and no controlling executive or legisla~ tive act or judicial decision, resort must be had to the customs and Aah BL Ig, wt 62. 83" Rosenne, THE LAW AND PRACTICE OF ‘COURT OF JUSTICE, 2nd Ba. 1985, at 614-6. INTERNATIONAL ment: Inter State “The Paquete Habans, 175 US 700 (1900), 134 INTERNATIONAL LAW ippine Cases and Materials and ASEAN Instruments ation of an international custom, thus “assisting the transition from usage to custom.”® But this process is foasible, only if the learned writing is generally relied upon, and if the opinion is ‘not contradicted by other principles If there ho conventional or customary rule, a question is ned writings are inconsistent with each other. ritish court supplied the answer by holding that not eek a consensus of views, but also that it could select what appeared to be the better views." Analogous to the writings of publicists are the report drafts of expert bodies such as the International Law Com: Hi ssearch, (UNESCO). Learned writings—whether Provide coherence and order, particularly of supreme authorities and institutions in ppinions help to elu Purpose of the rules of international law. 1¢ international legal te the direction and ‘ACTS OF INTERNATIONAL ORGANIZATIONS. ‘The resolutions of international organizations could be a source of law, as held by the ICJ in the Nicaragua case,” but only if they ied by the Petry '8A (Merits) 1996 IC Rep. 07, The [GI held that "the wording jemby decinintirs adopted by states domoneteates their ree: CHAPTER & 136 INTERNATIONAL LAWMAKING are taken as part of a process, described as fo 1996 Advisory Opinion on the Legality of the Th ‘Nuclear Weapons: General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence af a rule or the opinio juris. To establish whether thi General Assembly resolution, it is necessary its content and the conditions of necessary to see whether an opinio j normative character. Or a serios of rest the gradual evolution of the opinio juris establishment of a new rule, states voting for it; but if many states vote aga ‘would have less value as evidence of customars recommends changes in the I evidence of existing law. Jaw should not be mistaken than 10 years” In the case of the UN, a resolution could either be binding, or declaratory. There are three schools of thought on the legal relevance 10 prohibition of force as definitely» matter of custemary IC Rep. 3. See also Judge Tanaka's discont in tho South Wost Atica CH Rep. 248, 138 INTERNATIONAL LAW ‘With Philippine Casos and Materials and ASEAN Instruments 1. UN resolutions are recommendatory but not binding. 2. Certain UN resolutions may be a first step in the process of law creation. They may be evidence of developing trends of cus- tomary law, depending on subject-matter, size and nature of majori- ties, and opinion juris, 8. UN General Assembly resolutions are quasi-legislative, In the process of creating norms in the international system, ns of international organizations play a significant role, ‘the subject-matter of the resolutions in question, 1y are binding or recommendatory, at the majorities their adoption, at repeated practice in relation to them, of opinio juris.” ‘The acts of international organizations possess varying degrees of normative character. If the resolution governs the constitutional functioning of the institution, it may represent an intermediate or final step in the resolution of a customary rule. By itself, the resolution has no normative effect; it assumes normative character only, if the recommendation is implemented in practice. ‘An example of a normative series of resolutions is the series since 1952 of UN General Assombly resolutions affirming the right to self-determination. Another example of a series is found in the 1968 Declaration and the 1965 Convention, both on Elimination of All Forms of Racial Discrimination, If no formal vote is taken, and instead a consensus is adopted, such a consensus assumes the character of a “quasi-resolution” which could be the starting point in the evolution of a customary rrule of international law. On the other hand, a consensus could lead to a full-fledged resolution, such as the 1982 Convention on the Law of the Sea, When a General Assembly resolution is adopted in the form of a Declaratio declaratory in the sense of serving as authentic evidence of existing law. However, if a resolution does not confirm existing law, but seeks to lay down new law, then obviously the reso- aia a6 CHAPTER 4 137 INTERNATIONAL LAWMAKING ution is not evidence of the law as it is, but lays da, what the law ought to be. A resolution, by nee: also serve to demonstrate the observance of an established rule.” General Assembly resolutions are not absolutely binding. How- ever, they constitute what has been various) normea savages, para-droit or soft law. Their legal value depends ‘upon the subject-matter and the surrounding circumstances, par- ticularly the voting pattern during adoption. “Soft law” means that the provision in question is not of itself “law” bu ticular attention requires to be paid to portant and influential, but by itself does ypt constitute a logal ‘A resolution has a Jawmaking effect organ of an international institution to reg} ‘workings. If the Constitution leaves open a ques! 1 recoluticn of jurisdiction would have similar lawmaking effect, as ae interpreiative decisions on the const! resolution has a quasi-logislative effect binding on all members to whom it is adresse international institut ing on resolutions, a particular state could be bound by le of estoppel. If it has consistently voted in favor of a lition of apartheid), it would not later be allowed to deny the existence of a usage. It may even be possible with respect to that state that the usage has turned into customary law, with binding effect. ‘TEnot only one state, but the vast majority of states, consistently vote for resolutions and declarations on a topic, that action amounts to state practice. Ifthe requisite opinio juris can be proved, a binding "foe axazapl, i has been argued that Genera) ese legiaaive effet. Mao offared proot is that the UN Charter. ‘othe General Assembly only the power to diacus, initiate ‘mendations. Therefre, General Assembly rsohutions, itis ar force shay 92-8, ‘Such onthe Articles of Agreoment of 22 July 1944 o ‘tary Fund "As in the cage of the Council and Commiaso: noms Community under the 1957 Remo Treaty on the ave no binding ional Mos. ean Boo INTERNATIONAL LAW ipine Cases end Matorials and ASEAN Instruments In addition to constituting state practice, ve as evidence of the existence of international or as part of the evolutionary process toward opinio juris as spensable element of international customary law. In both cases, resolutions “speed up the process of the legalization of state practice and thus enable a speedier adaptation of customary law to ‘the conditions of modern life.” HIERARCHY OF SOURCES. ‘The ICJ Statute, Article 98 lists the sourves of international Jaw as: treaty; custom; general principles; judicial decisions and teachings of the most highly qualified publicists, as subsidiary means. When Article 38 was being drafted, it was proposed to include the phrase, “in the un¢ itioned order,” but the proposal was rejected. Hence, Akehurst concludes: “The different sources of inter- national law ere not arranged in a strict hierarchical order. Sup- plementing each other, in practice they are often applied side by side, However, if there is a clear conflict, treaties prevail over cus- tom and custom prevails over general principles and the subsidiary sources,” ary law as they find it. Ifthe interstate rela tomary law proves inadequate, then the parties could derogate from customary law by concluding a treaty. Since the parties are free to contract such treaty obligations as they see fit—the only limitation being the rule of jus cogens-—the treaty overrides customary law. However, if the parties mutually agree by their conduct to allow the treaty to fall into desuetude," it is likely that a new rule of customary law will emerge, in turn overriding the ignored treaty. ies are the 1960 Declaration onthe Granting of Independence to Co- es, and the 1963 Declaration on Legal Principles Govern inthe Bxplanation and Use af Outer Space, ‘sa term used to doscsba the situation in which the treaty ig ore partie, with the soquisseoncs of the other party ot parca” sn be drawn from the Vienna Convention, Article "The the withdrawal of w party may take placa... (8) at any lv, states are governed in their relationships by custom- | ip is such that cus- | CHAPTER 4 139 INTERNATIONAL LAWMAKING ‘Thus, in this cyclical pattern, a treaty and a custom are of equal weight, and which one prevails over the other is a question of which comes later in time. Issues of prevalence should be resolved by the application of the general rules of statutory construction that a later \w repeals an earlier law; a later law, general in nature, does not peal an earlier law which is more special in nature; and a special 1W prevails over a general law. If there is a conflict between treaty and custom on the one ‘hand, and general principles of law on the other hand, it is treaty and custom that will prevail. The reason is that general principles are apparently intended only to fill the gaps in treaty law and customary law. After these three sources, learned writings are subordinate, since Article 38 describes them 18 merely “subsidiary.” Which prevails between a decision and a writing would likely be resolved by the substantive merits of the reasoning employed. One of the genteral principles of law is equity, which Brownlie defines as “considerations of fairness, reasonableness, and policy often necessary for the sensible application of the mare set of law.” Ir. this English sense, equity is part of the norms funetion (of British courts) and is thus different from the pi ple of ex aequo et bono, which involves elements of compromise and conciliation *” ‘The experts disagree on the role of equity in the development of international lav. Brownlie holds a favorable view: “Strictly, it can- Rot be a source of law, and yet it may be an important factor in the Process of decision, Equity may play a dramatic ing the law or appears unobtrusively as part of ju But Akehurst holds a contrary view: “It is doubiful 48 a source of international law at all; even if it Browne 25 "Equity is provide for by the 103 Statute Article “The Court Brownlie 25-26, citing: Diversion of Water From POLI Ser. AB No, 70a 77; North Sea Continental Shelf Ca ‘Barcelona Traction eae (Scoond Phase), 1978 ICJ Rep. 45-5 Juradiction {Sve (Uneed Kingdom v. eeland, 1974 1CJ Rep 905; Burkina Faso Mall 1988 1G) 9. 631.8. ao INTERNATIONAL LAW, (Cases and Materials and ASEAN Tnatruments such doubts would appear to indicate that ranking source.” JUS COGENS AND ERGO OMNES OBLIGATIONS. ‘The 1969 Vienna Convention on the Law of Treaties provides: international law. For the purposes of the present Con: »n, a peremptory norm of general internation itted and which can be modified only be a subsequent norm of general International law hav- ing the same character. ‘ing prohibitions may have attained the status of jus * Of the use or threat of force + Of genocide very, 21088 violations of the right of peoples to self-determina- tion + Ofracial discrimination + Oftorturett 179, See also Barcelona Tractios caso (Blgium v. Spain), 1970 103 PR Kuhner, Torture.” EPIL. 8 (1985). at most, a very low- CHAPTER 4 ma INTERNATIONAL LAWMAKING + Of aggression ‘The concept of jus cogens leads to the conc: obligations and so-called international crimes. Ake! obligation. PHILIPPINE CASES. __ Since the Philippine Constitution adopts the fare part of the law of the land, Under ‘treaty or international agreement shall be Accordingly, if the Philippine president or international agreement without Senate co Convention on the Law of Treaties, Article 46: 1. _AState may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of violation was manifest and concerned a rule Jaw of fundamental importance. ‘The Philippine cases that follow need to be reinterpreted in the t of the 1987 Constitution and the Vienna Convention, Article °'Gee UN Charter, Article 2, para. 4: “All Memb ‘ternational relations from the threat of use of force agains 142, INTBRNATIONAL LAW. ‘With Patippine Onsen and Materials and ASEAN Instrumente country knew that the Philippines had violated the juirement of Senate concurrence, then the treaty or be invalid. Treaties and Executive Agreements: China National Machinery and Equipment Corp. v. Santamaria 665 SCRA 189 (2012) [This »as a Petition for Review on Certiorari with Prayer for the Teou- ‘ance of a Temporary Restraining Order. China National Machinery and Equipment Corp. Group az Wile oa Pulippine govesonarnaced ot DOP oa is and CNMEG executed a Contract Agreement for the con- I, Phase I of the North Luzon Railway System from ‘on a turnkey basis (the Contract Agreement). The Phil- and EXIM Bank entered into a counterpart financial ‘known as the Government Procurement Reform Act; (¢) Presidential Decree No. 1445, otherwise known as the Government Auditing Code; and (2) Ex- ‘The Court denied the petition.) ‘The Contract Agreement was not concluded b and China, but between Northrail and CNMEG. By tract Agreement, Northrail is a government-owned ‘commercial ar proprietary ventures. —000— Liban v. Gordon 689 SCRA 709 (2011) [This resolved the Motion for Clarification andlor for Reconsi filed by respondent Richard J, Gordon of the Decision promu! Court on 16 July 2008 (the Decision’), and the Motion for Partial Reconsid- ‘ration filed by movant-intervenor Philippine National Red Cross (PNRC). ‘The Court granted the petition.) ration Leonardo-De Castro, J: Petitioners Liban, etal, who wore officers of the Board of Directors of ‘the Quezon City Red Cross Chapter, filed with the Supreme Court @ “Peti- ‘i599 SCRA 68 2009). me INTERNATIONAL LAW wos and Niaerials and ASBAN Inetrumente J. Gordon as Having Forfeited His Seat in the Sen- ident Gordon, who was elected Chairmen of the 2NRC during his ineumbency as Senator. In the 2009 Decision, the Court held that respondent did not forfeit hhis seat in the Senate when he accepted the chairmanship of the PNRC Board of Governors, 28 “the office of the PNRC Chairman is not a govare- he was clectod as PNRC Chairman during! ‘The Court however held further that th 95, as amended by P.D. No. 1264 and ‘and Exchange Commission if it wants tobe a private corporation. The issue in this caso is the real nature of the PNRC. private corpora seueture is aud ‘the PNRC that valid and effective from the time of its enactment 11986 Constitution and during the effectivity of the 1987 Constitution. The PNRC Chartar and laws havo not boon questioned or challenged on constitu ‘ional grounds, not even in this ease before the Court now. CHAPTER « us INTERNATIONAL LAWMAKING rofuso to recognize its existence, espe tionality of the PNRC Charter was never raised by the image ofthe Philippines in the the PNG Charter that were delared void mst —o0o— 585 SCRA 265 (200: (This was a petition for certiorari under the ‘secking nullify Administrative Ordor (A.O.) No. Implementing Rules and ‘mown as the “Milk Code," ‘The Petitioner in this ease was questioning Adm 2006-0012, entitlod Revised Implementing Rules and Penaliing Vilatans Tharet, and for Other Purposes (RRR) iseued by the 16 INTERNATIONAL LAW. With Philippine Gases and Materials and ASEAN Instrumente partially granted the petition, The Court declared Sections ‘4.0. No. 2006-0012 dated 12 May 2006 null and void for Code expressly provides that advertising, promotion, oF other marketing materials may be allowed ifsuch materials are duly autho- rized and approved by the Inter-Agency Committee (IAC). CHAPTER 4 ur INTERNATIONAL LAWMAKING On the other hand, the Constitution, Article 2, vides that the Philippines adopts the generally acco ‘ternational law as part of the law of the land, embod method, ‘Thus, generally accepted principles of inter: land oven if they do not derive from treaty oblizations, “Generally accepted principles of internat cnt ecaetantog io A atin sa ‘Ssements and promotions of broast milk substi } as.adomestic law. ‘most notable is the UN Declaration of Human Rights, ‘Court has enforced in various eases, specifically, Gove of Honghong tod ng, Vale Hoskin ot al INTERNATIONAL LAW, CASES AND MATERIALS, 8 INTERNATIONAL LAW. ilippine Cases and Matarals and ASEAN Instrumente ‘mine whether the DOH may imple- Resolutions by virtue of its powers inder the Administrative Code even in the absence but and total ban policy eould be imp! bur amending the Milk Code paased by the constitutionally at of government the lela, Code, but not those of subse- splemented by the DOH through Department of Budget and ‘Management Procurement Service v. Kolonwel 524 SORA 591 (2007) consisted of threo consolidated petitions for review under CHAPTER 4 a9 INTERNATIONAL LAWMAKING ‘At the core ofthe controversy are the bidding and the eventual con- Guidelines on the conduc: and implementation of th process in question. 000 Pimentel v, Office of the Executive Secretary 462 SCRA 622 (2005) cutive Secretary and the Department of Foreign Aff uty to submit che Rome Statute to the Senate even without the signature ofthe Prosident, "The Court dismissed the petition] ‘TERNATIONAL LAW ‘and Materials and ASEAN Instrumente for any abuse in our domestie courts. Jbmission thet the Philippines is bound under treaty cejo v. Consul General of Spain (67 Phil. 475 (1989) fan appeal from an ardor of the Court of First Instance of (On 18 October 1936, appellant Tomas Ocejo y Samperio, claiming to be one of the principal ereditors of the decoased Jose de Aguilar y Axles, f very nature ofits provisions, is intended to apply ther cuapran« 181 INTERNATIONAL LAWMAKING filed a petition in the Court of First Instance of Mani Code of Civil Procedure, Section 597 as amended, end app general special administrator. From this arder, petitioner ‘The Court affirmed the judgment] Crown of Spain, he had become a Filipino citizen, ‘the Treaty of Paris of 10 December 1898. These preten: 606) ‘The word “dominios” appearing in Article 26 Philippines. Pending withdrawal of the sovereig the Philippines, even in its present self-governing vigore, have force in the Philippines, does not apply to —000— 162 ‘With Philip Validity of the RP-US Non-Surrender Agreement: Bayan Muna v. Romulo 641 SORA 244 (2011) Republic of the Philippines (RP) and the United States of ed the petition] shall be complementary to the national criminal juriadie- nus crimes adverted to cover those considered grave under law, such as genocide, crimes against humanity, war erimes, aggression, beh es eri eis rea sad RP. ‘hange of Notes No. BFO-028-08 dated 18 May 2003 (HIN BFO- inafter), the RP, represented by thon DFA Secretary Ople, accepted the US proposals embodied under the US Em- ‘against thom in international tribunals. \dor Riceiardone replied in his letter that the exchange of dip- proceeding, petitioner Bayan Muna imputes gravo abuse of rospondente in concluding and ratifying the Agreement and be struck down as unconstizutional, or at least declared as sand effect in this case is whether the Agreement, which has not been. Senave for concurrence, contravenes and undermines the ‘and other treaties falls “into the category of inter-governmental internationally accepted form of international ‘An exchange of agreements.” which, CHAPTERS 188 INTERNATIONAL LAWMAKING agreement. The United Nations Treaty Collections (Treaty Reference (Guide) defines the term as follows: change of notes is frequently resorted ‘speedy procedure, or, eometimes, to aveid the pr ‘ve approval. another perspective, the terms “exchange in his work, The Constitutionality of Trade Agreement Rov. 651 (1939) snd set gorenments ene sod aeons nominated executive agreements or © trvise-— bepa, maay sometimes be dificult cf nized mode of concluding a legelly binding international ‘among nations Concurrence Not Required ‘The Vienna Convention on the Law of ties that require logislative concurrence after execu "Sofia Website of che UN

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