I – INTRODUCTION International law consists of rules and principles of general
application dealing with the conduct of states and of international
In studying international law, you must first focus on your mindset.
Compared to Civil Law, PIL requires a different way of thinking as it is
common law.
What’s the main difference between common law and civil law
thinking? You are already familiar with the thinking that rules and laws
are usually found in a Codified instrument (civil law). Thus, there is a
repository of all rules and norms that one can use in order to solve a
legal problem. Our mindset is that if we have this legal problem, we
think about the applicable law. For instance, if a family problem, we
refer to the Family Code to check and see if there is a provision
applicable to the problem.
In fact, even if a provision of a law appears to be no longer applicable
in a certain situation that is fairly recent, usually situations where the
rule makers or congress did not anticipate, the civil law thinker will say
until and unless the law is changed in order to adopt to the changing
times, we apply the law.
In common law thinking, this is not the case. Here, legal advocates can
be creative because the legal arguments of advocates in this
jurisdiction cannot be confined to the existing legislations, statutes,
because in most common law jurisdictions, even customs and practices
can be considered as sources of law.
When you study PIL, think about its very nature that it is common law
and you will see what this means as we progress.
MEANING AND NATURE OF INTERNATIONAL LAW
TRADITIONAL, MODERN & POST-MODERN DEFINITIONS
TRADITIONAL DEFINITION (states)
Brierly: The body of rules and principles of action, which are binding
upon civilized states in their relations with one another.
When we say actors we are referring to those who have international legal
personality, and by having such, we refer to those actors that (1) possess
rights and obligations under international law and (2) they have the
capacity to maintain that claim.
If you notice, in the traditional definition, Brierly, one of the well known
authors of PIL, focused on the subjects of civilized states. Now, we don’t
use the term civilized states because it’s hard to identify a state that is not
civilized. Under the old PIL, level of civilization has been used as a
precondition before one can be considered a state.
In works of traditional authors, you will notice that there is a discussion of
elements of statehood, which are taken from the Montevideo Convention
on the Rights and Duties of States. The convention enumerates 4 elements.
You don’t see there anymore a degree of civilization as a prerequisite to
statehood.
DBL’s discussion
Then, International law governed only states or International law was
viewed to govern states alone. When you speak of actors of
international law, they were only referring to state actors. So all
others – international organizations, multinational companies, and
even individuals are called non-state actors.
MODERN DEFINITION (states and entities with intl personality)
Hackworth: It is that branch of public law, which regulates the
relations of states and other entities, which have been granted an
international personality.
(E.g. Laws of the Sea, Rules on war or armed conflict)
POST-MODERN OR CONTEMPORARY DEFINITION
(states, IOs and natural/juridical persons)
Section 101, Restatement (Third), American Law Institute of
the Foreign Relations Law of the United States
organizations and with their relations inter se, as well as with some
of their relations with persons, whether natural or juridical.
TN: This definition now includes not only states but international organizations
and even individuals.
Sir why are we talking about American institute of foreign relations?
This is a domestic document. But if you have read PIL books,
decisions of the ICJ, journals written by experts in PIL, they all agree
that the definition found in this domestic document reflects the
current and the true concept of public international law.
If asked to defined PIL, a civil law thinker would say PIL, according
to Section 101… blah blah blah. Because you are looking at the
source, Section 101 as the basis of the definition.
But in common law thinking, instead of saying “according to”, you
will instead say, “the concept of PIL is best reflected in the
document blah blah blah.” Refer to the law as simply an expression
of what PIL is. But that document is not the source, it just reflects
the definition.
In this definition, it now covers IOs as well as persons. If you
will be asked in the Bar “distinguish subjects from objects of PIL”,
your answer should be based on the concept of international legal
personality.
PUBLIC V. PRIVATE INTERNATIONAL LAW
PUBLIC INTERNATIONAL LAW
Public International Law
Governs the activities of states and other international
persons/entities in relation to each other. It governs “relationships”
of international persons inter se.
Example:
X, a citizen of State A, is the Ambassador to State B. X’s official
archives and documents were seized by the police of State B and X
was subsequently subjected to a state-sponsored torture in State B.
State A filed a suit for compensation before the ICJ. Is State B liable?
TN: What are the obligations of a receiving state towards members of the
diplomatic missions of a sending state? That is a PIL controversy.
PRIVATE INTERNATIONAL LAW
Governs the activities of individuals, corporations, and other private
entities when they cross national borders and in controversies
involving foreign element. It resolves “conflict of laws”.
It regulates the type of law applicable to a particular controversy. It
is called private because it does not govern relationships between
states but rather it governs what type of law will be applied to a
particular legal controversy (when there is a foreign entity involved).
Example:
X, a citizen of State A, is the Ambassador to State B. X maintained
funds in various banks in State B and also acquired in State B certain
condominium units. X died in State C. It was learned that X also has
funds and properties in State C and State D. What law
shall govern the distribution of the estate of X?
 BRIEF HISTORY OF PUBLIC INTERNATIONAL LAW
Hugo Grotius (Father of Public International Law)
1625 published “On The Law of War and Peace”. In 1609, he
also wrote “Mare Liberum” (The freedom of the seas)
1648 Treaty of Westphalia (Spain, Roman Empire, Etc.)
th th
16 to 17 Were the “classical age of public international law”
Centuries
1789 Birth of the term “inter-national law” by J. Bentham
Lieber Code (Lincoln’s General Order No. 100 or the
1863 “Lieber Instructions”) – the first document that governs
conduct of war
1899 Permanent Court of Arbitration
1907 Hague and Geneva Conventions (there were four (4)
Geneva Conventions in 1949)
Permanent Court of International Justice (PCIJ) of the
1922 to League of Nations, then replaced the International Court
1946 of Justice (ICJ) of the United Nations.
Creation of International Law Commission (ILC) tasked to
1948 codify international law.
The increase in global trade, armed conflict,
environmental deterioration on a worldwide scale,
19th – 20th awareness of human rights violations, rapid and vast
Centuries increases in international transportation and a boom in
global communications saw the importance and
usefulness of Public International Law, which at this time
began to establish new and modern areas in international
law (trade & investment, technology, human rights,
environment, space, etc.)
Treaty of Westphalia has been thought of as one of the first
international instrument that embraced the concept of sovereignty.
Through this, gi stop na ang pag occupy ug laing states such that
occupation of another state is a violation of co-equality among
states. One state should have only one power. It is through this
treaty nga ni give birth ug co-equality among states.
The name international law first came from Jeremy Bentham.
Lieber code - first code of the conduct of war created by Abraham
Lincoln. Lincoln ordered his friend, a German national who had
mastered military law to draft a code that will govern the conduct of
war. It was called the Lieber Code, from the author’s last name.
HISTORICAL DEVELOPMENT OF PIL
HOW PIL DEVELOPED
WHY PIL WAS PREVIOUSLY VIEWED TO GOVERN ONLY
STATES
We started with a conception that Public International Law governed
only states. Why did we view international law as regulating only the
conduct of states? This is because at that relevant time, during the
classical period of international law, the states were mostly at war.
Concept of sovereignty in the Treaty of Westphalia
Monopoly of power
The concept of sovereignty in the treaty of Westphalia was perceived
to be that concept involving what John Jackson called the monopoly
of power. Sovereignty was the basis for the commitment made by
the parties to the treaty of Westphalia to not intervene with the
affairs of the neighboring European states precisely because to
interfere is to violate the monopoly of power concept.
By monopoly of power, we mean that if you are the authority in a
particular territory, no other authority should have a say on how that
particular territory should be managed or governed. So that’s the
depth of origin.
So basically at that time, the international community was concerned
simply of states, being actors in international law relations.
HOW PIL EVOLVED TO INCLUDE NON-STATE ACTORS
Beginning 1907, states started to agree on certain rules governing
the conduct of war. They entered into treaties and conventions like
the Hague and Geneva Conventions around 1907. The Geneva
Conventions were completed on 1949 (four Geneva conventions
were completed).
The League of Nations
This triggered the idea "why don't we create, other than the
convention or a treaty, some sort of association of states to put an
end to war?” So they thought of the League of Nations.
However, the main weakness of the League of Nations was because
it was simply perceived as an association, and not really as
something that has an International legal personality. This is
because of the lack of cooperation of some influential states like the
US. That was the main failure of the League of Nations.
The United Nations
The League of Nations fell following the World War II. Then, in the
early part of the 20th century in 1945, the United Nations was
created. The UN Charter entered into force on October 25, 1845.
So, when international organizations participated actively in the
international affairs of nations, the international community saw
their importance and their vital role and so the new concept of PIL
also developed, to include now even non-state actors such as
international organizations.
Decolonization as the most significant contribution of the United
Nations
After 1945, UN charter, what important part of history contributed
to another development of PIL? What was basically one of the
important contributions or accomplishments of the UN?
Then, use of force was accepted as a valid and legitimate means of
acquiring territories. The use of force was not yet considered a
prohibition – not yet a CIL. It was only in the 1940s that the
prohibition on the use of force was recognized as a CIL (US v.
Nicaragua case)
Decolonization was one of the significant contributions of the UN.
The UN, through Gen Assembly's Resolution held upon powerful
states which colonized weaker states to let go of their colonies
because at that time, the international community started to
recognize that in the relationships between nations, the individuals
which compose the state must also be considered along with the
state itself as a juridical entity.
Right to self-determination
This was the time when the right to self-determination have
emerged as a norm in PIL. Because of this conception of the right
to self- determination therefore, recognition that colonized states,
by virtue of their peculiar culture, history, race, religion, are entitled
to be left alone.
The history of definitions of PIL, temporarily belonged to the
traditional thinkers of PIL like Brierly which defined International
Law as “the body of rules and principles of action which are binding
upon civilized states in their relations with one another.”
Because of utilitarianism prevailing at that time, our concerns were
simply that which affected the states. And so only states were
considered actors in international law.
Modern definition by Hackworth is that “it is that branch of public
law that regulates the relations of states and added entities which
have been granted an international personality. “
So, he added the other actors - added entities in PIL with a
requirement that these actors should have been granted
international personality.
In the case for example of the UN which tried to make a claim in the
international level because of the death of one of its officials. What is
the relevance of this case? Unlike the Supreme Court, the ICJ can
render advisory opinion upon the request of parties concerned.
Problem: The Chief UN Truce Negotiator Count Bernadotte, a
Swedish national, was killed on September 17, 1948 in Jerusalem. The
assassins were allegedly a gang of terrorists. Israel was not a member
of the UN at the time of the incident.
Issue: Whether the UN had legal personality to bring a claim with the
view of obtaining reparations in respect to the damage caused to
itself, to the victim or persons entitled through the victim.
Held: See Reparation for Injuries case (ICJ Advisory Opinion
1949)
Reparations for Injuries case (ICJ Advisory Opinion
1949)
When one asks for an Advisory Opinion, you will observe that
there are questions posed. But basically what question is
relevant in our discussion?
Purpose of the UN was for reparations not on behalf of the
negotiator as a Swedish national, but as a member of UN.
DBL’s discussion.
The Chief UN Truce Negotiator, a Swedish national was killed by some
terrorist group in Jerusalem, Israel. Israel was not a member of UN at
that specific time.
The Just and Fair Treatment of Nationals Abroad
It is part of CIL that the moment a state admits a foreigner in its
territory, that state must give that foreigner a certain level of
treatment. States admitting foreigners are required to treat aliens
justly and fairly. We call this “The Just and Fair treatment of Nationals
Abroad”. That's the minimum standard required. So the moment a
foreigner is admitted in a foreign soil, that state is required by CIL to
afford the foreigner a just and fair treatment.
Treating the alien with discrimination on the basis of nationality
without any justification becomes a violation of this right of the State
to which the person discriminated is a national of. It becomes “an
international wrongful conduct”. This presupposes responsibility on
the part of the wrongful sate. But, because the individual herein is just
an object of this claim, he will have to go to his state to espouse his
claim in the process of diplomatic protection.
States readily accept this norm because it is beneficial for all. Thus, it
has already ripened into customary international law. Thus it is
wrongful to discriminate against foreigners.
State Responsibility
Why is that important? Because failure on the part of the concerned
state to protect a foreigner may open up the possibility that the state
will be held responsible at the international level – that’s what you call
state responsibility.
Responsibility will cover several areas – it could be in a form
compensation, reparation, restitution, cessation of ongoing acts and
the possibility that the guilty state will be a subject of a lawful
countermeasure by other states.
The point being, that the moment there is failure to comply with at
least a CIL, not to mention conventional obligations, there is a
possibility that the state will be considered as having committed an
internationally wrongful act. This UN official was still in the territory of
the Israel and therefore there was at least a prima facie evidence that
somehow, Israel failed to afford the foreign national a fair and just
treatment.
So the question now is this, who could assail or rather who could
charge Israel with an internationally wrongful act and therefore
consider it as responsible state? Is it the UN or Sweden?
On the issue of who between UN and Sweden can bring the claim
It is really only the United Nations which has the capacity to present a
claim in the circumstances referred to, inasmuch as at the basis of any
international claim there must be a breach by the defendant State of
an obligation towards the UN. In the present case, the State of which
the victim is a national (Sweden) could not complain of a breach of an
obligation towards itself. Here the obligation is assumed in favour of
the United Nations. The claim brought by UN is not based upon the
nationality of the victim but rather upon his status as an agent of the
Organization.
On the issue of UN’s capacity to bring an international claim
This capacity certainly belongs to a State. Does it also belong to the
Organization? This is tantamount to asking whether the Organization
has international personality.
Yes. The United Nations, is at present, the supreme type of
international organization, and it could not carry out the intention of
the founders if it as devoid of international personality. It must be
acknowledged that its Members, by entrusting certain functions to
it, with the attendant duties and responsibilities, have clothed it
with the competence required to enable those functions to be
effectively discharged.
While it is conceded that original international legal personality
belongs to the main actors of international law, namely states, the
United Nations has an international legal personality through the
fact that its member states, by the very fact of creating such an
organization, must have transferred some of their powers over the
organization (derivative international legal personality)
Important concepts to remember:
International Legal Personality
The ability to possess international rights and duties and the power to
sustain these rights by bringing international claims.
Derivative International Legal Personality
The UN has an international legal personality through the fact that
its member states, by the very fact of creating such an
organization, must have transferred some of their powers over the
organization.
What are the remedies of objects of international law?
Aggrieved parties may go to their respective government and
address the issue for the state itself to espouse its claim since it is
only states who can appear before the ICJ. This is called
“Espousal of Claim” (“Diplomatic Protection” is the term more
accepted in international law).
What is Diplomatic Protection?
It is when a state lodges a complaint because of an injury suffered
by its national in the territory of the other state. The state must
establish nationality (as taken in PIL).
SCOPE OF PUBLIC INTERNATIONAL LAW
THREE REGIMES OR DIVISIONS OF PIL
THREE REGIMES/DIVISIONS OF PIL
A. The Law of Peace – Law of Treaties (how are treaties
formed, the rules governing formation, enforcement and
ratification of treaties), Law of the Sea, Diplomatic Relations,
etc.
Does not continue to operate in terms of war because a new law
will be applied to the belligerents (participants of war)
GR: A new regime will be applied to them: Laws of War.
XPN: There are laws of peace that still continue to be respected
even in times of war: Derogable rights and non-derogable rights.
Under the human rights regime, state parties to the ICCPR may ask
that they be permitted to derogate certain rights in times of
emergency. You notify the HRC, and there’s a process on permitting
a state to derogate certain rights.
In times of emergencies, pwede nimo ma suspend ang certain
rights. For instance, right to peaceably assemble, pwede mana ma
suspended. Right to parts of freedom of expression mana.
Generally, even the freedom of expression can be a derogable right.
But there is one type that is non-derogable. Dli jud pwede mo
justify ang state nga isuspend kay there is emergency what is this?
RIGHT TO LIFE – NON-DEROGABLE. Including human
dignity, right against torture, violation against the right to
life.
Prohibited man to kill without due process right? For instance naa
may death penalty in times of peace right? But in war, the same
class. Dli pwede nga diretso nalang kag death sentence bisan walay
death penalty law allowing it.
To summarize: When there’s war, ang laws of peace dli mo apply
because laws of war will apply but there are those who will continue
to apply and that is non-derogable rights example of which is right
to life.
B. The Laws of War – When there is war and whether valid or
not.
 Jus ad Bellum (legality of engaging in war) the
justifications in entering into war; when is use of force
permissible.
 Jus in Bello (legality of conduct of war)
C. The Law of Neutrality – Governs the conduct of states
not engaged in war.
TN: Human rights law would be applicable both in times of peace and of war.
Not to permit any belligerents of the war to use your territory for war.
Dli ka pwede magpabutang ug naval force or military facility. What if
nay mo violate? You sue the state, which should have remained
neutral before the ICJ because there’s a breach of international law.
SUBJECTS OF PUBLIC INTERNATIONAL LAW
PRIMARY AND SECONDARY SUBJECTS
SUBJECTS
Those that enjoy international legal personality and being capable
of possessing international rights and duties, including the right to
bring international claims.
A. Primary subjects – States
B. Secondary subjects –
 International Organizations (e.g. UN, WTO)
 Individuals (protected persons of IHL, insurgents and the
national liberation movements, minorities)
 Juridical persons (e.g. multinational companies)
 NGOs (e.g. ICRC, Greenpeace, Amnesty International)
Q. How would you know that the states are the subjects
while its individuals are the objects?
A. Subject – bearer of rights with the power to maintain and
pursue such rights
B. Object – not a bearer of rights nor can pursue claims
Q. Why are States still the primary subjects?
 International law is still predominantly made and implemented
by states
 International Organizations are still dependent to a large extent
on the willingness of states to support them
 Only states can be members of the UN
 Only states are entitled to call upon the UN Security Council in
case of threat to peace and security
 Only states may appear in contentious proceeding before the ICJ
 Only states can present a claim on behalf of a national who has
been injured by another state, if there is no treaty to the contrary
 An individual has no “individual rights” under customary
international law and is dependent on the political discretion of the
home state.
TN: Some authors contend that individuals are not parties to international
law although they can be bearer of rights recognized by international law
(when they exercise right to self-determination?)
INTERNATIONAL LEGAL PERSONALITY
Q. What is meant by International Legal Personality?
Reparation for Injuries Case (ICJ Advisory Opinion,
1949)
ICJ: “The ability to possess international rights and duties and the
power to sustain these rights by bringing international claims”.
While it is conceded that original international legal personality
belongs to the main actors of international law, namely states, the
UN had international legal personality through the fact that its
member states, by the very fact of creating such an organization,
must have transferred some of their powers over the organization.
(“Derivative International legal personality”)
ICJ: “UN is at present the supreme type of international organization,
and it could not carry out the intention of the founders if it as devoid
of international personality. It must be acknowledged that its
Members, by entrusting certain functions to it, with the attendant
duties and responsibilities, have clothed it with the competence
required to enable those functions to be effectively discharged”
DBL’s discussion:
Bringing the claim is just one component of having a personality. We
can go back to the advisory opinion of the ICJ in the Reparation for
Injuries case. Is it not that the ICJ confronted a dilemma of whether
it would rule that the UN can bring the claim for and in behalf of the
murdered officer of UN. Was it together with Sweden or was it to the
Exclusion of Sweden? How was it resolved by ICJ?
When a state charges another state for violation of IL therefore
invoking regime of State responsibility, in regard to treatment of
aliens, what process in IL should the state avail of? What right for
example?
If you are to charge a foreign state that it failed to afford our citizen
just and fair treatment therefore it is responsible, and now you are
bringing a claim at the international court, how do you call it?
The process or the right exercised by the state is called the right to
Diplomatic Protection. The right to Diplomatic Protection is
sometimes used interchangeably with espousal of claim.
Comfort women case
The comfort women from Philippines asked for compensation from
Japan. However, since they cannot ask through the UN as they have
no legal personality, they have to put up their claim first to the
government.
This is how International Law views individuals. At least with regard
to reparation, individual are considered as objects of IL while the
states are viewed as subjects. If you are a subject of IL, first you
must be a bearer of right, and then you have the right also and
power to maintain to pursue such rights (not only possessor but also
the ability to pursue that right or to make a claim).
If you don't have an International legal personality (you are not a
bearer of right nor cannot pursue a claim), then in that context, you
are simply an object of PIL. So in this case, we talked about
espousal of claim and state responsibility, the individual is indeed
an object. For the claim to be appropriately brought before at the
International level, it must be done by a subject of IL.
So of course, the Supreme Court denied the claim of the comfort
women. Do you know why? It’s because the crime was not yet
considered a jus cogens norm, so the Philippines was not bound to
make a claim on the basis of jus cogens, that why it refused.
Reparation for Injuries case
In this case, the ICJ said that this is not to say that its opinion bars
Sweden from also exercising Diplomatic Protection. That’s why the
ICJ mentions two kinds of protection, one is diplomatic that pertains
to Sweden because the UN official was a Swedish national, at the
same time there is what the ICJ called functional protection
because murdering, killing, disrespecting the human dignity of the
official also offends the organization as a whole.
Two kinds of protection:
1. Diplomatic protection – Exercised by the State where the official is a
national. The individual subject to diplomatic protection must be a
national of the state seeking diplomatic protection.
2. Functional protection – Exercised by the Organization where the person
is an official or agent. This is because murdering, killing, disrespecting
the human dignity of the official also offends the organization as a whole.
In that regard, the UN can have an international legal personality
because the claim brought by UN is not based upon the nationality
of the victim but rather upon his status as an agent of the
Organization.
WHEN OBJECTS MAY BE CONSIDERED AS SUBJECTS
WHEN OBJECTS MAY BE CONSIDERED SUBJECTS
Q: In what instance may individuals be considered as
subjects of Public International Law?
When they exercise their right to self-determination. It is a right
which has already ripened into a customary norm and can be
exercised against states.
Peoples’ Right to Self-determination
Groups of people, who share the same history, the same origin,
culture may find themselves the minority in a particular community.
It may happen that the State where the minority belongs tends to
disregard the unique culture. As a result, this particular state or
government will only pass one set of laws, one set of legal system,
one set of policy and disregarding the unique culture of these
minority groups.
If that happens, after attempts by this group to be recognized by
the majority, it may happen that in PIL, they want to secede. And
this is the usual problem in state or territorial secession. They
cannot continue to live along with the majority with just one set of
laws because they have their own culture and practices, traditions.
They want that the national government will also address that. So
that failure by their State to do so would be a violation of their right
to self-determination.
Some groups can enjoy certain rights at the international level,
even if without a state espousing the claim. There are groups who
want to separate from the mother state because they have been
maltreated, discriminated racially, ethnically. So they want to
secede, yet the mother state refuses.
There are groups of people who will try to separate and would
result in an internal armed conflict.
Under IHL, while internal armed conflicts are domestic, it becomes
international when its own nationals pursue their right to self-
determination. This opens doors to the Internalization of HR.
Armed conflict and application of the Laws of War
Assuming that this conflict between the right of the state to its
territorial integrity and the right of the minority to self-
determination escalates into an armed conflict – a new set of law
will apply between the participants in the armed conflict (Laws of
War)
These armed groups are not states. They are not even
organizations. They are just individuals. But why ask them to
observe the laws of war?
In the Geneva conventions, either can be charged for war crimes
under the Rome Statute, ICC.
It is not international if there isn’t another state involved EXCEPT in
the case of an organized armed group or National Liberation
Movement exercising the right to self-organization. Here, while it
started to be a non-international armed conflict, it becomes
international.
We have rules in the conduct of war. For example, when you
capture a combatant, they are to be treated as Prisoners of War.
There are rules under the Geneva Convention on the treatment of
Prisoners of War.
Civilians also enjoy rights during an armed conflict. There are various
principles governing the conduct of war. For example, the principle of
proportionality, the principle of military necessity. These principles are
PIL principles but we are making them applicable to individuals.
To that extent, individuals become Subjects of PIL because they too
are compelled to observe the Laws of War.
What is another example of individuals who may be
considered subjects of international law?
Refugees. They are persons of one state who may be subject to
persecution by reason of race, religion, ethnicity. If that happens, as
part of the reaction of any human being, they would leave the
country. If they leave the country and are waiting to be welcomed to
the state, they are called asylum seekers. If the State agrees that they
are refugees, they may be accepted. The moment the refugee is
accepted, it gives rise to the obligation not to return the refugee to his
state.
Primarily: states
See akehurst
To summarize –
 You have to distinguish Subject from Object.
 The Object does not possess international legal personality and
therefore it cannot bring international claims.
 States are the primary subjects while individuals normally are
mere objects of PIL.
 But in some instances, individuals may be regarded as subjects,
that is when they exercise their right to self-determination. They
may be treated as subjects when there is already an armed
conflict. But in this instance, they may be treated only as
secondary subjects.
CHARACTERISTICS OF PUBLIC INTERNATIONAL LAW
IT IS CONSENT-BASED, IT MAY BE EXPLICIT OR IMPLICIT.
Explicit – treaty based
Implied – practice-based
CIL becomes binding upon all states because they have impliedly
accepted the norm, except upon those who have qualified as
Persistent Objector
PIL IS A HORIZONTAL LEGAL SYSTEM
Vertical legal system (for purposes of discussion)
First, what do we mean by vertical legal system? It means you have
a higher law, you have an inferior law. You have hierarchy of
authority. You also have hierarchy of institutions. You have a
 supreme institution, which enacts laws and commands obedience.
This is typical of a domestic legal system. Thus, under our
jurisdiction, if the statute violates the constitution, the statute is null
and void.
Horizontal legal system
But we don’t see this kind of system in public international law.
Some authors even call it the “Billiard Ball Theory.” In billiards, you
hit one ball with another ball without affecting the inside or the
interior of the ball. It only affects the outside of the ball.
International Law therefore deals with States as a whole and not
with what is inside that state. It does not deal with the domestic law
of the state.
TN: This is not absolute however, since recent development shows that in
some instances, international law problems are solved by looking at domestic
legal systems. In fact, one of the sources of Public International Law, are the
General Principles of Law which are usually found in the decisions of the local
courts.
Q. Is PIL a true law?
The answer would depend on one’s understanding of what law is.
To those who embrace the positivist perspective, that law is imposed
by a higher authority and that there must be a hierarchy in the legal
systems – PIL is not a true law since PIL lacks a supreme authority.
There is no legislature, no executive branch and no system of courts,
except to the extent that states may have subjected themselves to
certain “compulsory” processes and consequences under treaties
and conventions.
To those who believe that law is capable of effective enforcement –
PIL is a true law. The existence of law is one and its violation is
another. Law is law, whether the subjects follow. But it is given that
there is a problem with the enforcement.
Q. Why do the States obey PIL if there is a problem with its
enforcement?
A. Self-preservation Theory – International community perceives
compliance of IL on the basis of natural law. If I attack your
territory, it is possible that you will retaliate so I will not do
such.
B. Self-interest Theory – It is of my best interest that if I obey the
terms and conditions of the treaty, by the time that I will have
to request, I can expect compliance from your end. It is of the
best interest of the state to comply IL. The state can have
benefits in trade, investment, or political in exchange.
C. Acculturation Theory - It is just part of the culture of states that
they easily obey to certain norms.
D. Legitimacy Theory – State obey a particular norm because it is
just, right, reasonable, or pragmatic. Even if we talk about
certain policies in our company, there are rules that we easily
obey. It is not because we are compelled to obey it but
sometimes, we obey the law because we feel that it is a good
law or that it is a sensible law.
E. Positivist Theory - At least in so far as conventions and treaties
are concerned, states obey them because of consent. This is
otherwise called the consent based theory. A contracting party
to a treaty of course is bound to obey because it had already
consented to the terms and conditions.
Some forms of peaceful enforcement of PIL
A. Voluntary compliance
B. Force of public opinion
C. Self-help
D. Treaty-based enforcement
DOCTRINE OF SELF HELP
International law lacks enforcement. There is difficulty in enforcing PIL
because we do not have international police or sheriff who supposedly
implements the judgment of the court. One might probably say, “what
about the UN SC? Will it not serve as the international police or
sheriff?”
To some extent there are instances where the security council used its
power and resulted to compliance of international law. There are
“success stories” of the UNSC. But there are also failures.
Success stories – golf (?) war. Triggered the occupation of Kuwait by
Iraq. How did UNSC stop the act of annexing Kuwait? Because of the
authorizations made by the UNSC to use force not only by united
states but also other states. So Iraq was forced to give up its claim on
Kuwait. There were several resolutions condemning the act of Iraq.
That condemnation permitted the use of force necessary to solve the
problem.
Self-help, unlike in domestic sphere applying domestic law, is
normally the means by which states enforce their rights.
We don’t have international court and international police but we
rely on what aggrieved states may do in order to compel
compliance. Normally the means by which states enforce their
rights are through the following:
A. Retorsion – A lawful act designed to injure the wrongdoing
of another state.
B. Reprisal – Act that is normally illegal but rendered legal by
a prior illegal act committed by another state.
C. Countermeasure –
DISCUSSION BY GROUP:
1. limitations of UNSC
a. merely recommendatory
b. veto-power of 5 permanent members
c. no armed forces
d. voting may manifest political interests
2. distinction between different modes of self-help measures
RETALIATORY
Recognized in certain treaties and conventions. When for instance a
member of the WTO discriminates product of another state by
imposing high tariffs in order to discourage of that product and protect
its own local products, if it is not justified, then it is a breach of its
commitment under WTO. Now, the victim state, whose products are
imposed with very high tariffs, may also do the same to the breaching
state. This is retaliatory measure.
Broader connotation, may or may not include use of force. Since it is
broader, it covers the notions of reprisal and retorsion and
countermeasure.
RETORSION VS. REPRISAL
Boils down to the unlawfulness
Retorsion – lawful, not much limitations
Reprisal – if unlawful by nature but rendered lawful because availed
of by a victim state in response to an unlawful act. Many limitations
here. For instance, State A attacked State B through a missile. 20 days
after, State B also attacked State A through more or less the same
amount of missiles. The question in the bar whether the measure may
be justified under the concept of reprisal? Diba naa may prior unlawful
act si State A. so State B uses the same. But that act however involves
the use of force. Based on international law, as reflected in Article 2(4)
of the UN charter, use of force is prohibited unless it falls under self-
defense or authorized by the UN security council. The better term is it
wasn’t a reprisal, it was simply a retaliation. Never think of reprisal nga
wala siyay limitations, abig kay unlawful. Use of force is a well known
limitation to reprisals.
COUNTERMEASURE
It can never involve the use of force. In fact, to be specific about
the question, the concept of countermeasure probably has the most
confined concept among the three. Why? The term can only be used in
the context of state responsibility. Makit-an nimo sa ARSIWA. In
retorsion for instance, gamay raman iyang limitation, broader pud na
concept, it can include all measures or responses even to acts of other
states which do not constitute internationally wrongful act. Naa lay
mga undesirable act si neighboring state but there can still be retorsion
by the victim state. Later on we will discuss the meaning of
internationally wrongful act, specific in state responsibility. Some acts
are not desirable, offensive or harmful to some states but the ydo not
necessarily qualify as internationally wrongful.
to state B’s citizens without compensation, State B can
retaliate by doing the same to the property of State A’s
citizens. This must be proportional though.
TN: We call this in PIL as Self-Help measures. There is no international police
or a sheriff that implements or executes the judgment. There is no writ of
execution that will be issued by the international tribunal. So one problem in
PIL is how to enforce the norms effectively. There is no problem if states
obey them. The problem is if they don’t.

Thus, countermeasure is only applied in internationally wrongful

act. Retorsion may be applied to undesirable acts that may not
amount to internationally wrongful acts. Though some authors use
this interchangeably, they are not necessarily the same.
PUBLIC INTERNATIONAL LAW AS A BINDING LAW
PIL IS A SYSTEM OF CONSENSUS
PIL IS A SYSTEM OF CONSENSUS
PIL is a system of consensus rather than command. It is binding
since the states agreed to be bound by it.
Q. Is PIL a binding law?
In so far as a particular international norm is observed and
considered binding by states, then they may be considered as law.
But to say that it is law is not to say that it is applicable and binding
on all states. Not necessarily. It depends on what kind of norm or
PIL we are talking about.
TN: This is especially true in light of the persistent objector principle.
Conventional modes
Member states of the WTO are not supposed to distinguish between
foreign goods and local goods to the extent that it will restrict the
trade of these goods or hamper trade transactions between
member states. The very idea of WTO is trade liberalization.
Now, what happens if a member state of the WTO passes a law
that effectively prejudices or unfairly treats foreign products in favor
of locally produced products and in violation of the WTO?
It is possible that states have entered into a conventional way or
mode of enforcing certain international norms. Under the WTO,
there are procedures by which a particular norm may be enforced
as against a member state. So in this case, the affected foreign
state will be allowed to also do the same to the product of the
offending state. How is it done? It is allowed by the WTO itself.
So aside from self-help, there are conventional modes or methods
of enforcing PIL as borne out by treaties, conventions, mostly
multilateral treaties.

It is a law between states that are compelled to obey it by reason Others

of being a party to a treaty or convention, or because the norm or
the PIL partakes of the nature of a Jus Cogens norm that had been
treated by all civilized states as non-derogable.
Q. Give an example of a PIL that may be binding on all
states. Jus Cogens – a norm treated by all civilized states as non-
derogable. Examples are prohibitions against torture, slavery and
genocide.
It is also a fact in international relations that some states are bound to
obey PIL because of bar of the public opinion. Some states easily
comply with certain norms for fear that they may be the subject of
international criticism. Or, states of course may just voluntarily comply
with a public international norm.

FORMATION AND ENFORCEMENT OF IL

FORMATION OF INTERNATIONAL LAW

Q. How is international law formed?

A. By agreement of the States – Public International Law may be
enacted by agreement of a group of states. It may be
considered a positive law by the contracting parties.
B. State Practice – PIL may come into existence as a result of
practice of states coupled with the belief that it is practiced
because the norm or conduct is binding upon states.

TN: So it may be by convention, by treaties or by practice.

ENFORCEMENT OF INTERNATIONAL LAW

International laws are enforced through:
A. Self-help measures
B. Conventional modes of enforcing as borne out by treaties,
conventions
C. Others (fear of international criticism, voluntary compliance,
etc.)

Self-help measures
A. Lawful act, which is designed to injure the wrongdoing state—
for example cutting off economic aid (this is lawful because
there is no legal obligation to provide economic aid, apart from
under special treaty provisions).
B. Reprisals – are acts which would normally be illegal but which
are rendered legal by a prior illegal act committed by the other
state. For instance, if state A expropriates property belonging