Chapter 2

***Most recit questions revolved around Art. 38 (1)

***Memorize the sources of PIL

1. What is international law?

- It is the law governing the conduct of states and of international
organizations and with their relations inter se, as well as with some of their
relations with persons, whether natural or juridical.

2. What is the relevance of the third restatement?

- It is primarily a directive to the Court on how it should resolve conflicts
brought before it. Article 38 is a declaration by states that these are the
laws under which they are willing to be bound.

3. What are the sources in Article 38 (1) vs sources from the third
restatement?
- Art. 38 (1), ICJ Statute
● International conventions​, whether general or particular,
establishing rules expressly recognized by contesting states;
● International customs​, as evidence of a general practice
accepted as law;
● General principles of law​ recognized by civilized nations;
● Subject to the provisions of Article 59, ​judicial decisions
and the ​teachings of the most highly qualified publicists
of the various nations, as subsidiary means for the
determination of rules of law.
- Third Restatement of Foreign Relations Law of the United States
- Rules of international law [It’s a rule of international law if it has
been accepted as such by the international community of states]
● Customary law
- Results from a general and consistent practice
of states followed by them from a sense of
legal obligation
● International agreements
 - These create law for the states parties thereto
and may lead to the creation of customary
international law which such agreements are
intended for adherence by states generally and
are in fact widely accepted
● Derivation from ​general principles common to the
major legal systems of the world
- Even if not incorporated or reflected in
customary law or international agreements,
they may be invoked as ​supplementary rules of
international law where appropriate

● ADDITIONAL SOURCES or OTHER SUPPLEMENTARY

EVIDENCE (LIST UNDER ARTICLE 38 ​NOT EXCLUSIVE​):
○ UN Resolutions ​- Declarations of legal principles and
Resolutions by the United Nations are generally considered
merely recommendatory. But if they are supported by all the
states, they are an expression of opinio juris communis. But
a growing number of weaker nations, who have a very
substantial vote, feel that U.N. Resolutions should have the
force of law. Resolutions can also be a reflection of what has
become customary law.
○ Soft Law (non-treaty agreements - administrative rules)
○ Equity - The court is not precluded from applying equity as
part of international law, when the needs of justice so
require. Note that equity falls under Generally Accepted
Principles of Law which, under Article 38 of the Statute, is a
valid source of international law. The principle of equity was
applied in the case of Netherlands v. Belgium14. Basically,
what the Court held in this case, was that Netherlands
cannot claim nor can Belgium counter-claim when both of
them come to court with unclean hands, Netherlands having
built a lock, and Belgium having built canals obstructing
water flow of the Meuse River.
4. Benchmark of being a Publicist - It is an institution or an individual whereby
his, her or its literary works (concerning International Law) are published and
accepted by the international community.

It should be noted, however, that these institutions are generally government

sponsored; hence, they bear within themselves a potential for national bias.

5. What are the elements of the “customs” of international law

- Don’t say daw the subjective psychological aspects, dapat daw yung state
practice and opinio juris
- Two basic elements of custom
- 1. Material factor; and
- a. how states behave.
- b. State Practice
- 2. Psychological or Subjective factor.
- a. why they behave the way they do.
- b. Opinio Juris

6. Do all sources in Art. 38(1) bind all states?

- NO. Case in point, treaties are only binding when the parties consent to be
bound.

7. What is an instant custom?

- Instant custom comes about when there is a spontaneous activity of a
great number of states supporting a specific line of action. In other words,
instant custom arises when states form a coalition to support an action.

8. How do you prove customs/customary law?

- Proof and ascertainment of customary law or foreign customary law
- In order to prove the existence or content of a rule of customary
law, or foreign customary law, a court may –
- (a) consult cases, textbooks and other authoritative
sources;
- (b) receive expert opinions either orally or in writing;
and
 - (c) appoint assessors from the community in which the
rule of customary law applies.

Chapter 3

***Make sure to read about the two conventions in Chap. 3 ​(1969 Vienna Convention on
the Law of Treaties AND Reservations to the Genocide Convention [ICJ Reports 1951])

***HE ASKED ABOUT THE CASES IN THE BOOK SO PLEASE READ (i.e. Bahrain
case)

1. What are the elements of a treaty?

- Treaty-making capacity
- Authorized representatives
- Freedom to consent
- Lawful Subject Matter
- Compliance with the Constitutional Processes

2. Can oral agreements be considered as treaties?

- Generally, under the Vienna Convention, it should be in writing...
- Before the Vienna Convention, oral treaties are valid, but after the
convention, it already has to be written
- YES, however such treaties would not come within the
contemplation of the VCLT and therefore would not be governed by
the VCLT. There is really no required form, but the treaty, to come
under the definition of the VCLT, must at least be in writing, agreed
to by the States, and governed by international law.

3. What makes treaties binding?

● General Rule: Treaties are binding only on the contracting parties
○ Exception: Third states may be validly held to the
observance of or benefit from the provisions of a treaty.
■ The treaty may be merely a formal expression of
customary international law which is enforceable in all
civilized states.
 ■ A treaty may expressly extend benefit to
non-signatory states (i.e. the Hay-Pauncefote Treaty
of 1901).

- As per the case of Qatar vs. Bahrain, having signed a

treaty/international agreements binds its signatories

4. Philippines’ Reservations in UNCLOS

• That signing of the RP shall not impair or prejudice sovereign rights of RP

arising from the constitution;

• That signing shall not in any manner affect RP as successor of the US of rights
arising from the Treaty of Paris and Treaty of Washington.

• Such signing shall not affect in any manner mutual defense treaty between RP
and US, and pertinent bilateral and multilateral treaties;

• The provisions of the Convention on archipelagic passage through sea lanes do

not nullify or impair the sovereignty of the Philippines as an archipelagic State
over the sea lanes and do not deprive it of authority to enact legislation to protect
its sovereignty, independence, and security;

• The concept of archipelagic waters is similar to the concept of internal waters

under the Constitution of the Philippines, and removes straits connecting these
waters with the economic zone or high sea from the rights of foreign vessels to
transit passage for international navigation.

5. HYPO QUESTION: If PDiggy makes a public statement acting as the head of

the state, would it be binding?​ (Answer: Norway v. Denmark case)

The case involved a dispute between Denmark and Norway over sovereignty in
Eastern Greenland. In the course of negotiations, Denmark had offered certain
concessions important for Norway for the purpose of persuading Norway not to
obstruct Danish plans in regard to Greenland. In reply, the Norwegian Minister
accepted the offer: “I told the Danish Minister today that the Norwegian
 Government would not make any difficulty in the settlement of this question.” ​The
Court found this declaration suf-ficient to bind the Norwegian government.

-
6. Are unilateral declarations considered as treaties?
- The Court held in the ​Nuclear Test Cases Australia v. France, New
Zealand v. France that unilateral declarations can have the effect of
creating legal obligations when two elements are present: first, there is
clear intent to be bound by the declaration, and second, the commitment
is very specific.

- Yes​. As per the cases of ​Australia v. France and ​New Zealand v. Franc​e,
if these declarations are ​given publicly and with an intent to be bound​,
they can be considered as treaties.
- Cases: Australia v. France, New Zealand v. France
- FACTS: France was a signatory to the Nuclear Test Ban Treaty
and thus continued to conduct tests in the South Pacific until 1973.
The tests conducted in 1972 and 1973 led to the filing of protests
by Australia and New Zealand. The case, however, was taken off
the Court’s list without a decision when France announced by a
series of unilateral announcements that it would conduct no further
tests after 1973
- RULING: It is well-recognized that declarations made by way of
unilateral acts concerning legal or factual situations, may have the
effect of creating legal obligations. Declarations of this kind may be,
and often are, very specific. When it is the intention of the State
making the declaration that it should become bound according to its
terms, that intention confers on the declaration the character of a
legal undertaking, the State being thenceforth legally required to
follow a course of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an intent to be
bound, even though not made within the context of international
negotiations, is binding

7. Can a treaty between states ripen into a customary international law?

- Yes, the generally accepted view is that both ​treaties and ​customary
international law derive their normative force from the consent of states:
 states explicitly consent to ​treaties​, and tacitly consent to new ​customary
international law​.
- Two contributing factors: ​number of the parties and the ​generality of
the acceptance

- BUT… What only ripes is the SOFT LAW

● “Soft Law"
○ Not included among the sources is what a growing literature
refers to as “soft law.” Others prefer to call this category
“non-treaty agreements.” They are international agreements
not concluded as treaties and therefore not covered by the
Vienna Convention on the Law of Treaties.

○ Other sources of soft law are administrative rules which

guide the practice of states in relation to international
organizations. These are mostly administrative procedures
that are carried out with varying degrees of consistency and
uniformity that may ​eventually ripen into customary law or
become formalized later on in treaties.
-

8. Explain the process of treaty making

● Negotiation​ - done through foreign ministries
● Authentication of Text​ - the signing of the document
● Consent to be bound - expressed by signature, exchange of
instruments constituting a treaty, ratification, acceptance, approval
or accession, or by any other means if so agreed
● Reservations (if any) - a unilateral statement, however phrased or
named, made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude or
to modify the legal effect of certain provisions of the treaty in their
application to that State
● Entry into Force
9. Who can negotiate treaties?
● Heads of States
● Ministers of Foreign Affairs
● Heads of diplomatic missions
● Accredited representatives of States to international conferences or to an
international organization.

10. What are the consequences if a person acts without authority or acts in
excess of authority? (In the contexts of treaties)
- No proper authorization: treaty has no legal effect UNLESS confirmed by
his state

● General Rule: A state is not bound by a treaty made in its behalf by an organ or
authority not competent under the law to conclude the treaty.
○ Exception: A state may be responsible for an injury resulting to another
state for reasonable reliance by the latter upon the misrepresentation of
the former

11. What does the Hague (kineme) require for states to adopt a treaty?
12. Explain ​pacta sunt servanda

“Agreements must be kept” - Article 26 of the Convention/VCLT says that “every

treaty in force is binding upon the parties to it and must be performed by them in
good faith.”

13. [Follow up to #11] What would be the consequence if this isn’t followed

Rebus Sic Stantibus - is the principle of fundamental change in circumstances

allowing States to suspend or terminate the application of a treaty.

Basically, it can be said that the general rule is pacta sunt servanda and rebus
sic stantibus is one exception
 ​
14. What is the principle of ​jus cogens?

Article 53 of the VCLT - a peremptory norm of general international law.

It is the principles which form the norms of international law that cannot be set
aside.

● It is a norm accepted and recognized by the international community of

States as a whole as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general international
law having the same character

15. He asked about the article that he assigned [Germany convicts Syrian
officer of crimes against humanity]

16. How are treaties terminated?

● Lapse of definite period provided for by the treaty
● Purpose for which it was established has already been achieved
● Material Breach
○ In order to constitute material breach, it must at least be an act in
repudiation of a treaty, or a violation of a treaty provision essential
to the accomplishment of the object or purpose of the treaty.

● Impossibility of performance
○ In order to constitute impossibility of performance, the impossibility
must result from the permanent disappearance or destruction of an
object indispensable for the execution of the treaty.36

● Rebus Sic Stantibus

○ Rebus sic stantibus is the principle of fundamental change in
circumstances allowing States to suspend or terminate the
application of a treaty
○ Basically, it can be said that the general rule is pacta sunt servanda
and rebus sic stantibus is one exception.
 17. Give an example from the book where termination is valid/invalid

VALID TERMINATION

The usual ground for invalidation of contracts can also invalidate a treaty (VCLT):

● Article 48 - Error of fact

● Article 49 - Fraud
● Article 50 - Corruption
● Article 51 to 52 - Coercion or duress
● Article 53 - Violation of ​jus cogens

INVALID TERMINATION

Hungary v. Slovakia (Case)

18. CLEAN SLATE RULE

- SUCCESSION TO TREATIES
- A new State succeeding another State previously a party to a treaty is not
obliged to maintain in force that treaty or to become a party thereto. This is called
the clean slate rule.

- (Clean Slate Rule) A rule by which a successor state generally does not inherit
the prior treaty rights or obligations of a predecessor state.
- Exceptions to the clean slate rule:

1. Boundary Regimes – succession does not affect boundaries already set

by a treaty, or obligations and rights established relating to the regime of a
boundary.

2. Other territorial regimes – succession does not affect use of any

territory, or restrictions thereof, or rights established by a treaty for the
benefit of any territory.

• The provisions on other territorial regimes do NOT apply to treaty

obligations of the predecessor State providing for establishment of foreign
military bases
______________________________________________________________________

CASES

Diversion of Water from the Meuse (Netherlands v. Belgium)

Summary: In 1863, Belgium and the Netherlands signed a Treaty governing

diversions from the Meuse that would supply water for navigation and irrigation
canals. As economic conditions evolved, both States enlarged and expanded their
respective waterways by constructing new canals, locks, and barrages. In 1937, the
Netherlands initiated this injunctive proceeding, alleging that Belgium’s expansion
projects were in violation of the treaty. Netherlands had complained that certain
canals constructed by Belgium were in violation of an agreement that the
construction would alter the water level and rate of flow of the Meuse River. Belgium
filed counterclaims declaring that the Netherland's claims were ill-founded and that
the expansion projects in the Netherlands violated the treaty. The Court concluded
that the Treaty did not prevent either State from taking the actions complained of.
The Court rejected the Netherlands claim and a Belgian counterclaim based on the
construction of a lock by the Netherlands at an earlier time.

Qatar vs Bahrain

Facts. A dispute concerning sovereignty over certain islands and shoals, including
the delimitation of a maritime boundary were issues upon which Qatar (P) and
Bahrain (D) sought to resolve for 20 years. During this period of time, letters were
exchanged and acknowledged by both parties' heads of state. A Tripartite
Committee “for the purpose of approaching the International Court of Justice…..”
was formed by representatives of Qatar (P), Bahrain (D) and Saudi Arabia. Though
the committee met several times, it failed to produce an agreement on the specific
terms for submitting the dispute to the Court. Eventually, the meetings culminated in
“Minutes”, which reaffirmed the process and stipulated that the parties “may” submit
the dispute to the I.C.J. after giving the Saudi King six months to resolve the dispute.
The Court’s jurisdiction was disputed by Bahrain (D) when Qatar (P) filed a claim in
the I.C.J.

Issue. Whether the international agreement created rights and obligations.

Yes. An international agreement creating rights and obligations can be constituted

by the signatories to the minutes of meetings and letters exchanged. Though
Bahrain (D) argued that the Minutes were only a record of negotiation and could not
serve as a basis for the I.C.J. 's jurisdiction, both parties agreed that the letters
constituted an international agreement with binding force.

International agreements do not take a single form under the Vienna Convention on
the Law of Treaties, and the Court has enforced this rule in the past. In this case, the
Minutes not only contain the record of the meetings between the parties, it also
contained the reaffirmation of obligations previously agreed to and agreement to
allow the King of Saudi Arabia to try to find a solution to the dispute during a
six-month period, and indicated the possibility of the involvement of the I.C.J. The
Minutes stipulated commitments to which the parties agreed, thereby creating rights
and obligations in international law. This is the basis therefore of the existence of
international agreement.

On the part of the Bahrain’s (D) Foreign Minister, he argued that no agreement
existed because he never intended to enter an agreement fails on the grounds that
he signed documents creating rights and obligations for his country. Also, Qatar’s (P)
delay in applying to the United Nations Secretariat does not indicate that Qatar (P)
never considered the Minutes to be an international agreement as Bahrain (D)
argued. However, the registration and non-registration with the Secretariat does not
have any effect on the validity of the agreement.

Australia vs france/New Zealand Vs france

FACTS: France was a signatory to the Nuclear Test Ban Treaty and thus
continued to conduct tests in the South Pacific until 1973. The tests conducted in
1972 and 1973 led to the filing of protests by Australia and New Zealand. The
case, however, was taken off the Court’s list without a decision when France
announced by a series of unilateral announcements that it would conduct no
further tests after 1973

RULING: It is well-recognized that declarations made by way of unilateral acts

concerning legal or factual situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and often are, very specific. When it
is the intention of the State making the declaration that it should become bound
according to its terms, that intention confers on the declaration the character of a
legal undertaking, the State being thenceforth legally required to follow a course
of conduct consistent with the declaration. An undertaking of this kind, if given
publicly, and with an intent to be bound, even though not made within the context
of international negotiations, is binding

Fishing Territory Case/United Kingdom vs Iceland

Facts:

UK and Iceland bring this case before the Court in order to settle their dispute
regarding the extension of Iceland’s exclusive fisheries jurisdiction from 12 nautical
miles to 50 nautical miles. Iceland previously entered into an agreement (through an
Exchange of Notes) with the UK NOT to extend its fisheries jurisdiction, but it
nevertheless did, thereby violating its obligation to the UK.

Issue: W/N the Court had jurisdiction (this is the primary issue, but the relevant part
of rebus sic stantibus is discussed in the ratio)

Held: The Court ruled that it had jurisdiction. Article 62 constituted customary
international law. In order for a State to validly invoke rebus sic stantibus, the change
must have been fundamental. The change should have resulted in a radical
transformation of the extent of the obligations still to be performed. The change must
have increased the burden of the obligations to be executed to the extent of
rendering the performance of something essentially different from that originally
undertaken.

Namibia Case

Facts:

South Africa is being mandated by the Security Council, by virtue of Resolution 276
(1970) to withdraw its administration over Namibia. It refused to do so, si Namibia
sought advisory opinion from the Court requesting that the Court determine what the
legal consequences are of South Africa’s continued stay.

Held:

The Court held that South Africa was under an obligation to withdraw from Namibia
and that other States have an obligation not to recognize South Africa’s
administration in Namibia. What is important to note here is that the Mandate by the
Resolution is considered by the court to have the same binding effect as an
international agreement. Therefore, the provisions of the VCLT on breach of treaty
provisions can be considered as evidence of customary international law. Applying
this same view to the Mandate, an outright repudiation of the Mandate and a
violation of a provision essential to the Mandate’s purpose are means by which we
can determine whether a State has violated its obligations under international law.

Having committed these two outright breaches of the Mandate, the General
Assembly’s resolution is the exercise of its right to terminate the relationship in view
of the outright violation of its international obligations.

Danube Dam Case/Hungary vs Slovakia

Facts:

Slovakia succeeds Czechoslovakia in the 1977 Treaty entered into between

Czechoslovakia and Hungary regarding the building of dams on the Danube River.
Hungary suspended the construction due to environmental concerns, to which
Czechoslovakia responded by carrying out unilateral measures. The treaty does not
contain any provision regarding its termination.

Held:

In order to justify its unilateral termination of the said treaty, Hungary invokes the
grounds of: (1) state of necessity; (2) impossibility of performance; and (3) fundamental
change of circumstances. All of which have been deemed unmeritorious by the Court.

On the state of necessity, the Court ruled that this ground is not a valid ground for the
termination of a treaty, at most, it could be a justification for failure to implement treaty
provisions, but NOT termination thereof.

On the impossibility of performance, the Court ruled that Hungary cannot invoke this
ground as if Slovakia’s breach is only the result of Hungary’s corollary breach of its
obligations. The investment was no longer possible because Hungary itself did not carry
out the works.

On fundamental change of circumstances, the Court held that the changed

circumstances invoked by Hungary (changes political in nature, progress of
environmental knowledge, etc.) are not of such nature so as to warrant a termination of
the treaty.