PUBLIC INTERNATIONAL LAW – Reviewer
De Asis
II. SOURCES OF INTERNATIONAL LAW
 The most important source of international law for
centuries was
customary law
The following provision is usually accepted as
constituting a list of the sources of international law.
1. Treaties
Article 38(1) of the Statute of the International Court of
Justice provides:
The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall
apply:
(a) international conventions, whether general or particular,
establishing
rules expressly recognized by the contesting States;
(b) international custom, as evidence of a general practice
accepted as law;
(c) the general principles of law recognized by civilized
nations;
(d). 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.
 The general trend, particularly after the
Second World
War, has been to enhance the role of treaties in
international law-making.
Law-making treaties and ‘contract treaties’
Law-making treaties
 impose the same obligations on all the parties
to the treaty and seek to regulate the parties’
behavior over a long period of time
 their purpose is to conclude an agreement on
universal
substantive legal principles (i.e. human rights
treaties, Genocide Convention).
Contract-treaties’
 treaties which resemble contracts
2. Custom
 The second source of international law listed
in the Statute of the
International Court of Justice is ‘international
custom, as evidence of a
general practice accepted as law’.
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 1|Page
Ruben R.
2 Elements (Nicaragua Case)
1. Objective
 one of ‘a general practice’,
2. Subjective
 one ‘accepted as law’, (opinio iuris)
Where to look for evidence of customary law
 The main evidence of customary law is to be found
in the actual practice
of states.
The problem of repetition
 A customary rule must be based on ‘a constant
and uniform usage’ (Asylum case)
 Major inconsistencies in the practice (that is, a
large amount of practice which goes against the
‘rule’ in question) prevent the creation of a
customary rule. (Nicaragua case)
 Minor inconsistencies (that is, a small amount of
practice which goes against the rule in question)
do not prevent the creation of a customary rule,
although in such cases the rule in question
probably needs to be supported by a large amount
of practice, in order to outweigh the conflicting
practice in question. (Fisheries case)
(The Fisheries case concerned British claims against
Norway for introducing national legislation on
exclusive fishing rights in the waters surrounding
Norway’s entire coastline north of the Arctic Circle.
The Court upheld the Norwegian method of
delimitation of the territorial sea and its fixing of
actual baselines.)
 Where there is no practice which goes against an
alleged rule of customary law, it seems that a
small amount of practice is sufficient to create a
customary rule, even though the practice involves
only a small number of states and has lasted for
only a short time.
 General practice does not require the unanimous
practice of all states or other international
subjects. This means that a state can be bound by
the general practice of other states even against
its wishes if it does not protest against the
emergence of the rule and continues persistently
to do so (persistent objector).
PUBLIC INTERNATIONAL LAW – Reviewer
What states say and what states do
 State practice consists not only of what states do,
but also of what they say. (Claims made to areas of
the sea by a state could not create customary rule
unless such claims were enforced against foreign
ships.) (Fisheries case)
 State practice also includes omissions; many rules
of international
law forbid states to do certain acts, and, when proving
such a rule, it is
necessary to look not only at what states do, but also
at what they do
not do.
The psychological element in the formation of
customary
law (opinio iuris)
 When inferring rules of customary law from the
conduct of states, it is
necessary to examine not only what states do, but
also why they do it.
Psychological element or opinio iuris
 usually defined as a conviction felt by states that a
certain form of conduct is required by
international law.
 a conviction felt by states that a certain form of
conduct is permitted by international law.
 If some states claim that something is law and
other states do not
challenge that claim, a new rule will come into
being, even though all the states concerned may
realize that it is a departure from pre-existing
rules.
‘Instant’ customary law
 The result is to deny the significance of state
practice and the
relevance of the time factor in the formation of
customary international
law and to rely solely on opinio iuris, as expressed in
non-binding resolutions and declarations, as the
constitutive element of custom.
 the reduction of the time-element requirement is
carefully balanced
with a stronger emphasis on the scope and nature of
state practice.
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 2|Page
Ruben R. De Asis
Universality and the consensual theory of
international law
 Soviet doctrine used to teach that international
law is the result
of an agreement between states, and that the only
difference between
treaties and custom is one of form, treaties
representing an express
agreement and custom representing an implied
agreement.
 As far as customary law is concerned, the
prevailing view is, with different reasoning, that new
states cannot in principle escape existing customary
obligations. One cannot select rights granted by a
legal system ‘à la carte’ and at the same time reject
the duties one dislikes.
 The International Court of Justice has emphasized
that a claimant state
which seeks to rely on a customary rule must prove
that the rule has
become binding on the defendant state. The obvious
way of doing this is
a. to show that the defendant state has recognized
the rule in its own state practice; and
b. by showing that the rule is accepted by other
states.
3. General principles of law
 The third source of international law listed in the
Statute of the international Court of Justice is ‘the
general principles of law recognized by civilized
nations.
Definitions of general principles of law
 A. General principles of international law - general
principles of law are not so much a source of law
as a method of using existing sources—extending
existing rules by analogy, inferring the existence of
broad principles from more specific rules by
means of inductive reasoning, and so on.
 B. General principles of national law – gaps in
international law may be filled by borrowing
principles which are common to all or most
national systems of law; specific rules of law
usually vary from country to country, but the basic
principles are often similar.
PUBLIC INTERNATIONAL LAW – Reviewer
4. Judicial decisions
C. Equity
 Article 38(1)(d) of the Statute of the International
Court of Justice directs the Court to apply ‘judicial
decisions…as subsidiary means for the
determination of rules of law’. This direction is
made ‘subject to the provisions of Article 59’,
which state that ‘the decision of the Court has no
binding force except between the parties and in
respect of that
particular case’. In other words, there is no formal
stare decisis doctrine,
as known in common law systems; in international
law international
courts are not obliged to follow previous decisions,
although they almost
always take previous decisions into account.
 Judicial decisions can be used by ICJ in deciding
cases. However, judgements must be used with
caution for judges may appear to apply
international law when in fact they are applying a
peculiar law or their own national law.
5. Learned writers
Article 38(1)(d) also directs the Court to apply ‘the
teachings of the
most highly qualified publicists (learned writers) of the
various nations, as subsidiary means for the
determination of rules of law’.
Other possible sources of international law
A. Acts of international organizations
 Acts of international organizations should be
recognized as a source of international law.
B. Soft Law
 are neither strictly binding norms of law, nor
completely irrelevant political maxims, and
operate in a grey zone between law and
politics, is considered a special characteristic
of international economic law and of
international environmental law.
 The emergence of ‘soft law’ also has to do
with the fact that states in agreement
frequently do not (yet) wish to bind
themselves legally, but nevertheless wish to
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 3|Page
Ruben R. De Asis
adopt and test certain rules and principles
before they become law. This often facilitates
consensus which is more difficult to achieve
on ‘hard law’ instruments.
 Equity = justice
 Article 38 of the Statute which allowed the
application of general principles and argued
that principles of equity are common to all
national legal systems.
 Thus, a judge or arbitrator can always use
equity to interpret or fill gaps in the law, even
when he has not been expressly authorized to
do so.
 Counsel and judges in national courts
frequently appeal to considerations of equity
and justice when the authorities are divided
on a point of law, but that does not lead to
equity being regarded as a source of national
law.
The hierarchy of the sources
 Clearly a treaty, when it first comes into
force, overrides customary law as between
the parties to the treaty.
 Treaties and custom are of equal authority;
the later in time prevails. This conforms to
the general maxim of lex posterior derogat
priori (a later law repeals an earlier law).
However, in deciding possible conflicts
between treaties and custom, two other
principles must be observed, namely lex
posterior generalis non derogat priori speciali
(a later law, general in nature, does not
repeal an earlier law which is more special in
nature) and lex specialis derogat legi generali
(a special law prevails over a general law).
 Since the main function of general principles
of law is to fill gaps in treaty law and
customary law, it would appear that general
principles of law are subordinate to treaties
and custom (that is, treaties and custom
prevail over general principles of law in the
event of conflict).
 Judicial decisions and learned writings are
described in Article 38(1)(d) as ‘subsidiary
means for the determination of rules of law
which suggests that they are subordinate to
the other three sources listed: treaties,
custom and general principles of law. Judicial
PUBLIC INTERNATIONAL LAW – Reviewer
decisions usually carry more weight than
learned writings, but there is no hard and-
fast rule; much depends on the quality of the
reasoning which the judge or writer employs.
The different sources of international law are not
arranged in a strict hierarchical order.
Supplementing each other, in practice they are
often applied side by side. However, if there is a
clear conflict, treaties prevail over custom and
custom prevails over general principles and the
subsidiary sources.
Ius cogens
 states are not allowed to contract out of, is
‘peremptory norms of general international law.
 Article 53 of the Convention on the Law of
Treaties, signed at Vienna in 1969,183 provides
as follows:
 A treaty is void if, at the time of its
conclusion, it conflicts with a peremptory
norm of general international law. For the
purposes of the present Convention, a
peremptory norm of general
international law is a norm accepted and
recognized by the international
community of States as a whole as a
norm from which no derogation is
permitted and which can be modified
only by a subsequent norm of general
international law having the same
character.
Obligations erga omnes and ‘international crimes’
Obligations erga omnes are concerned with the
enforceability of norms of international law, the
violation of which is deemed to be an offence not
only against the state directly affected by the breach,
but also against all members of the international
community.
Codification of international law
There are obvious advantages to be gained from
codifying customary
law in a treaty. The rules become more precise and
more accessible; and
new states are more willing to accept rules which
they themselves have
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 4|Page
Ruben R. De Asis
helped to draft. But, in view of the divergences
between the practice of
different states, codification often means that a
compromise is necessary,
and there is a limit to the number of compromises
that states are willing
to accept at any one time.
Sometimes the Commission seeks to codify the law,
not by preparing a
draft convention, which may be later incorporated
into a binding
multilateral agreement, but simply by summarizing
the law in a report to
the General Assembly.
Part III. RELATIONSHIP BETWEEN CUSTOMARY
INTERNATIONAL LAW AND TREATY
Rule 1: When a treaty codifies customary
international law, the parties to the treaty will be
bound by the treaty as well as customary international
law while non-parties are only bound by CIL.
Rule 2: Treaty-based obligations may be identical to
obligations in CIL if the treaty has a crystallizing effect
whereby its content develops into customary law.
Rule 3: When a treaty contains elements of both
codification of existing customary law and progressive
developments, non-parties are only bound by the
former.
Rule 4: When the content of a treaty-based and
custom-based obligation is identical, the two sources
will complement and reinforce each other.
Rule 5: Between CIL and a treaty, that which has a
peremptory or jus cogens character shall prevail.
Rule 6: Since the adoption of a treaty is a deliberate
act of law-creation, the treaty normally prevails over
custom between the parties to the treaty.
Rule 7: That which is later in time prevails (lex
posterior)
Rule 8: That which is more detailed prevails (lex
specialis)
PUBLIC INTERNATIONAL LAW – Reviewer
Continental Shelf Case (Libyan Arab Jamahiriya v.
Malta, ICJ, 1985)
Customary international law
Malta was a party to the Geneva Convention
Libya was not.
Geneva Convention and UNCLOS were not applied.
What was applied was the customary international
law.
Equidistance principle
“It is of course axiomatic that the material customary
law is to be looked for primarily in the actual practice
and opinion juris of states , even though multilateral
conventions may have an important role to play in
recording and defining rules deriving from custom, or
indeed developing them.
Nevertheless, it cannot be denied that the 1982
Convention is of major importance, having been
adopted by an overwhelming majority of states;
hence it is clearly the duty of the Court, even
independently of the references made to the
Convention by the Parties, to consider in what degree
any of its relevant provisions are binding upon the
parties as a rule of customary international law.
PAQUETE HABANA CASE
Paquete Habana v. US, 175 US 677 (1900)
Where there is no treaty and there is no controlling
executive or legislative act or judicial decision, resort
must be had to the customs and usages of the civilized
nations, and as evidence of these, to the works of
jurists and commentators.
At present day, by the general consent of the civilized
nations of the world, independently of any express
treaty or other public act, it is an established rule of
international law that coast fishing vessels, with their
implements and supplies, cargoes and crews,
unarmed and honestly pursuing their peaceful calling
of catching and brining in fresh fish are exempt from
capture as a prize of war.
MILITARY AD PARAMILITARY ACTIVITIES
Nicaragua v. US, ICJ (1986)
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 5|Page
Ruben R. De Asis
Following international customary laws were violated
by US according to ICJ:
1. Not to use force against another state (w)
2. The right to collective self defense
3. Principle of non-intervention
4. Principle of sovereignty of states
Violations:
Prohibition of threat or use of force
All members shall refrain in their international
relations from the threat or use of force against the
territorial integrity or political independence of any
state, or in any other manner inconsistent with the
Purposes of the United Nations. (Art.2, Un Charter)
Collective self-defense
When a state use collective self-defense the Court
would examine:
1. Whether the circumstances required for the
exercise of self-defense existed; and
2. Whether the steps taken by the State, which
was acting in self-defense, corresponds to the
requirements of international law.
Requirements to exercise INDIVIDUAL OR
COLLECTIVE SELF-DEFENSE (Art.51
1. The state must have been the victim of an
armed attack;
2. That state must declare itself as a victim of an
armed attack;
3. The victim State must request for assistance
to exercise its right of self defense;
4. The victim State does not, under customary
international law, have the same obligation as
under Article 51 of the UN Charter to report
to the Security Council that an armed attack
happened.
A state may not exercise collective self defense based
on another state’s assessment.
A state which were not subject of an armed attack
cannot exercise collective self-defense
PRINCIPLE OF NON-INTERFERENCE
(Nicaragua v. US)
PUBLIC INTERNATIONAL LAW – Reviewer
This requires that every state has a right to
conduct its affairs without outside interference. This
principle forbids states or groups of states to
intervene directly or indirectly in internal or external
affairs of other states. This is corollary of the principle
of sovereign equality of states.
An intervention is wrongful when it uses methods of
coercion in regard to such choices (choice of political,
economic, social and cultural system and the
formulation of foreign policy), which must remain
free ones.
When a state, with the view of coercion of another
state, supports and assists armed bands in that state
whose purpose is to overthrow the government of
that state.
It held that a state’s sovereignty extends to its
external waters, its territorial sea, and the airspace
above its territory.
The united states violated customary international law
when it laid mines in the territorial sea and internal
waters of Nicaragua and when it carried out
unauthorized overflights over Nicaraguan airspace by
aircrafts that belong to or was under the control of
the United States.
General Principles of Law
Principles which are common to all or most national
systems of law; fill the gap in customary law and
In treaty law (gap-fillers)
Non-liquet- shortage of law; lack of applicable law in a
certain dispute
Bases of General Principles of Law
1. Domestic laws common to all national legal
systems
2. Natural Justice
3. Logic
4. Specific nature of the international
community
Equity; Diversion of Water from the Meuse
Under article 38 (2), of the ICJ Statute or
pursuant to the ex aequo et bono, the Netherlands
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 6|Page
Ruben R. De Asis
cannot ask Belgium to discontinue when they were
performing similar constructions.
Principles of Equity have long been
considered to constitute a part of international law,
and as such they have often been applied by
international tribunals.
The court’s recognition of equity as a part of
international law is in no way restricted by the special
power conferred upon it to decide a case ex aequo et
bono, if the parties agree thereto.
Where two parties have assumed an identical
or a reciprocal obligation, one party which is engaged
in a continuing non-performance of that obligation
should not be permitted to take advantage of a similar
non-performance of that obligation by the other
party.
Equity
(Romania v. Ukraine)- Maritime Delimitation in the
Black Sea
In the delimitation process, the calculation of
the relevant area does not purport to be precise and
its approximate. The object of delimitation that is
equitable, not an equal apportionment of maritime
areas.
“He who seeks equity must do equity” (Anglo-
American Law)
Good faith
New Zealand v. France (Nuclear Tests Case)
One of the basic principles governing creation and
performance of legal obligations, whatever their
sources, is the principle of good faith. Trust and
confidence are inherent in international cooperation .
Just as the very principle of pacta sunt servanda in the
law of treaties is based on good faith, so also is the
binding character of an international obligation
assumed by unilateral declaration.
Elementary considerations of Humanity
Legality of the threat or use of Nuclear Weapons, ICJ
Advisory Opinion)
PUBLIC INTERNATIONAL LAW – Reviewer
All members shall refrain in their international
relations from the threat or use of force against the
territorial integrity or political independence of any
state, or in any other manner inconsistent with the
purpose of United Nations.
The threat or use of nuclear weapons is not illegal
under international law, despite a large part of the
international community moving towards complete
nuclear disarmament, provided the guidelines set out
in Article 2(4) and Article 51 of the UN Charter were
followed.
UK v. Albania (Corfu Channel Case)
UK ships explode in Albanian waters.
Albania denied having knowledge of the mines.
Albania did not notify UK of the presence of the
mines.
The court ruled that Albania is responsible for the
explosions
OTHER GENERAL PRINCIPLES
(UK v. Albania)
1. Elementary considerations of humanity, which
is even more exacting in peace than in war;
2. The principle of freedom of maritime
communication; and
3. Every state’s obligation not to allow knowingly
its territory to be used for acts contrary to the
rights of other states.
No-harm Principle
(US v. Canada) Trail Smelter Case
A state owes at all times a duty to protect other states
against injurious acts by individuals from within its
jurisdiction.
Res Judicata
(Bosnia & Herzegovina v. Serbia & Montenegro)
Genocide Convention
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 7|Page
Ruben R. De Asis
This principle signifies that the decisions of the Court
are not only binding on the parties, but are final, in
the sense that they cannot be reopened by the
parties as regards the issues that have been
determined, save by procedures, of an exceptional
nature, specially laid for that purpose.
Purposes of Res Judicata
1. The stability of legal relations requires that
litigation must come to an end;
2. It is in the interest of each party that an issue
which has already been adjudicated in favor
of that party be not argued again.
Article IX, Genocide Convention (Res Judicata)
Disputes between the contracting parties
relating to the interpretation, application or
fulfillment of the present Convention, including those
relating to the responsibility of a state for genocide or
for any of the other acts enumerated in Article III,
shall be submitted to the International Court of
Justice at the request of any of the parties to the
dispute.
JUDICIAL DECISIONS
These are subsidiary sources of international
law or subsidiary means for the determination of rules
of law, but they carry substantial interpretative
weight.
The decisions of the court have no binding
force except between the parties and in respect of
that particular case.
Generally, decision of the ICJ is not binding.
Except between the parties.
Doctrine of Stari decisis does not apply to decision of
international law
In international law, the court is not obliged to follow
previous decisions.
Judicial Consistency in Judicial Decisions
The most obvious means of avoiding
accusations of bias. Thus, it is generally questionable
whether at least decisions of the ICJ can in fact still be
PUBLIC INTERNATIONAL LAW – Reviewer Ruben R. De Asis

regarded as only subsidiary means of determining the which will not be

law. meet with legal
sanctions
Learned Writers

The word publicist means learned writers. Like judicial
decisions, learned writings can be evidence of
customary law, but they can also play a subsidiary role
in developing new rules of law.
International Law Commission; Contributions
The contribution of the ILC play a special role in
international law. It was established in 1947 with the
primary purpose of promoting the progressive
development of international law and its codification.
The composition of the ILC is intended to be
representative of all the principal legal systems of the
world and the members sit in their individual
capacities.
In practice, soft law instruments may have an impact
on the formation of customary international law as
both reflection of state practice as well as opinion
juris.
Declaratios and principles from the UNGA illustrate
while soft law instruments are not legally binding on
their own terms, they may in certain circumstances
assist in the crystallization of customary law and on
that basis assist in the creation of hard international
law.
Ex aequo et bono (according to the Right and Good)
The court may decide cases ex aequo et bono, but
only when the parties agree thereto.

The court may interpret case ex aequo et bono.

OTHER SOURCES OF INTERNATIOAL LAW

1. Acts of international organizations

2. Soft law Unilateral Statements
3. Equity; ex aequo et bono
Like treaties, binding unilateral declarations can be
4. Unilateral statements
issued by heads of state, heads of government, and
Acts of international organizations ministers of foreign affairs.

Soft law A unilateral declaration should, however, only be

Neither strictly binding norms of law, or completely
irrelevant political maxims, and operate in a grey zone
between law and politics; particularly prevalent in
international economic law and of international
environment law, international cyber security
Ex: 1992 RIO declaration, Stockholm declaration
SOFT LAW VS HARD LAW
considered binding if it is stated in clear and specific
terms.
Ex:
Ihlen Declaration (Eastern Greenland case)
The PCIJ interpreted the Ihlen Declaration issued by a
Norwegian foreign minister as a statement that was
legally binding on Norway.

Soft Law Hard Law The Foreign Minister of Norway, Mr. Ihlen, referred to
 Non-legally  Legally binding Danish claims to the whole of Greenland and stated
binding or a  Tedious and that his country (Norway) would not make any
mere political complex difficulties in the settlement of this question.
pledge process
 Creation is  Ordinarily New Zealand v France (Nuclear Tests)
generally faster imposes Unilateral declarations made by the French president
 A more flexible sanctions on are binding.
way to establish violations
an expectation of thereof The court considered that the word of the French
behavior president is binding.
 Violation of
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 8|Page
PUBLIC INTERNATIONAL LAW – Reviewer Ruben R. De Asis

Whether a statement is made orally or in writing UN Charter Obligations

makes no essential difference , as long as it reveals a
clear intention.
HIERARCHY OF SOURCES OF INTERNATIONAL LAW
Obligations under the Charter prevail if they conflict
with obligations under any other international
agreement.

There is no hierarchy of sources of international law The council does not defeat jus cogens norms.

(Presumption of Normative Equality) All legal sources Preference of sources

are deemed to have the same normative status.
What prevails over another

Jus cogens , prevails over

Exceptions to the Presumption of Normative Value
Treaty, prevails over
1. Peremptory Norms or jus cogens
Custom, prevails over
2. Erga Omnes Obligations
3. Obligations under the UN Charter GAPIL, prevails over
Jus Cogens; Peremptory Norms Subsidiary Sources
Norms accepted and recognized by the
international community of States as a whole as a
norm from which no derogation is permitted and
which can be modified only by a subsequent norm of
general international law having the same character.

Jus Cogens v. Treaty

3. INTERNATIONAL LAW AND MUNICIPAL LAW
A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm off general (Monist and Dualist Theories)
international law. Approaches
If a new peremptory norm of general international DUALIST: MONIST
law emerges, any existing treaty which is in conflict  a.k.a pluralist  Perceive both
with that norm becomes void and terminates. theory international
Erga Omnes Obligation  assumes that and municipal
international law law as forming
It is an obligation of every state towards the and municipal part of one and
international community as a whole. All states have a law are two the same legal
legal interest in its compliance, and thus are entitled separate legal order
to invoke responsibility for breach of such obligation. systems which  Holds that
exists international
Any state may invoke erga omnes obligation. Even independently of law can be
though they are not direct victims of violations of erga each other applied directly
omnes obligation.  in the national
legal system of
Barcelona Traction Case (Belgium v. Spain) states and that
international
Diplomatic Protection of Shareholders can be invoked
law norm
only by the nationality of the corporation and not of
prevails in the
the shareholders. case of conflict
ICJ that Belgium cannot invoke DPS

DPS has not yet attain erga omnes obligation.

Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 9|Page
PUBLIC INTERNATIONAL LAW – Reviewer Ruben R. De Asis

ATTITUDE OF INTERNATIONAL LAW TO MUNICIPAL
LAW
 The general rule of international law is that a
state cannot plead a rule of or a gap in its own
municipal law as a defense to a claim based
on international law
 It will depend on where the case is tried.
 If it is filed in any international court or
tribunal, of course it will apply international
law.
 But, if it is filed within our domestic court, it
will apply the municipal law

Article 27 (1969 Vienna Convention on the Law of

Treaties)
“A party may not invoke the provisions of its internal
law as justification for its failure to perform a treaty.”
 Most states do not give primacy to
international law over their own municipal
law. However, this does not mean that most
states disregard international law altogether.
 International law can be adopted by
incorporation or transformation
Doctrine of Incorporation
Article II: section 2. “the Philippines adopts the
generally accepted principles of international law as
part of the law of the land, ”
Doctrine of Transformation
Article VII section 21. “No treaty or international
agreement shall be valid and effective unless
concurred in by at least 2/3 of all the member states.”
Philip Moris v. Court of Appeals
 Sc ruled that municipal law on trademarks
regarding the actual use of trademark must
subordinate an international agreement.
 Withal the fact that international law has
been made part of the law of the land does
not by any means imply the primacy of
international law over national law in the
municipal sphere.
 Under the doctrine of incorporation as
applied in most countries, rules of
international law are given a standing equal ,
not superior, to national legislative
enactments.
 If the questions is between international law
and municipal law, which must prevail?
Sec. of Justice v. Hon. Lantion and Jimenez –
“No primacy of International Law ove Municipal Law.”
 In a situation where the conflict is
irrenconcilable and a choice has to be made
between a rule of international law and
municipal law, jurisprudence dictates that
municipal law should be upheld by the
municipal courts.
Government of Hongkong v. Hon. Olalia Munoz
A Potential extraditee’s right to bail
 Munoz was charged in Hongkong
 Munoz filed a petition for bail
 Denied because there is no law granting bail
in extradition cases and Munoz is flight risk
Issue: does Munoz has Right to bail
Rule: The right of a prospective extradite to apply for
bail in this jurisdiction must be viewed in the light of
the various treaty obligations of the Philippines
concerning respect for the promotion and protection
of human rights. Under these treaties, the
presumption lies in favor of human liberty. Thus, the
Philippines should see to it that the right to liberty of
every individual is not impaired.
SC departed in the ruling in Purganan.
An extradite may be allowed to post bail.
4. THE LAW OF TREATIES
Vienna Convention on the Law of Treaties ( Adopted
by UN Conferencve on Law of Treaties
May 1969 and entered into force in January 1980)
 Scope

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 This applied to all types of written treaties and
it therefore govern treaties as diverse as a
bilateral agreement to construct
infrastructure as well as a multilateral
document such as the UN charter.
Oral Arguments
Article 3, VCLT. – The fact that the present Convention
does not apply to international agreements concluded
between States and other subjects of international
law or between such other subjects of international
law, or to international agreements not in written
form shall not affect:
a. The legal force of such agreements:
TREATY ( Art. 2 VCLT)
 An international agreement concluded
between states in written form and governed
by international law, whether embodied in a
single instrument or in two or more related
instruments whatever its particular
designation.
Requirements:
 Intention is immaterial
 There are no specific requirements of form in
international law for the existence of a treaty,
although it is essential that the parties intend
to create legal relations as between
themselves by means of their agreement.
 Informal instruments do not include the
intention to create a binding agreement.
 Where the parties do not intend to create
legal relations or binding obligations, THE
AGREEMENT will not be a treaty
 For an instrument to create a treaty, there
must be the intention to create legal relations
among the parties to the instrument.
 Intention of the parties will be decisive.
Agean Sea Continental Shelf case
(Greece v. Turkey, ICJ 1978
 A party cannot unilaterally submit to ICJ
without
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 11 | P a g e
Ruben R. De Asis
 ICJ has jurisdiction over the case only when
the party’s consent to the jurisdiction of the
ICJ
Maritime Delimitation and Territorial Questions
Qatar v. Bahrain, ICJ 1994
 International instruments may take a number
of forms and be given a diversity of names.
Article 2 of the VCLT define s a treaty to
ascertain whether an agreement of that kind
has been constituted, the Court must have
regard above all to its actual terms and to the
particular circumstances in which it is drawn
up.
 Accordingly, and contrary to the contentions
of Bahrain, the minutes are not a simple
record of a meeting, similar to those drawn up
within the framework of the Tripartite
Committee; they do not merely give an
account of discussions and summarize points
of agreement and disagreement. They
enumerate the enumerate the commitments
to which the parties have consented. They
thus create rights and obligations in
international law for the parties. They
constitute an international agreement.
AUTHORITY TO CONCLUDE A TREATY
 Every state possesses capacity to conclude
treaties
Full power – document emanating from the
competent authority of a state designating a person
or persons to represent the state for negotiating,
adopting, or authenticating the text of a treaty, for
expressing the consent of the state to be bound by a
treaty, or for accomplishing any other act with respect
to a treaty
STATE REPRESENTATIVES
(WITHOUT NEED FOR FULL POWERS
 In virtue of their functions and without having
to produce full powers, the following are
considered as representing their states:
a. Heads of state, heads of government and
Ministers of Foreign Affairs, for the
purpose of performing all acts relating to
the treaty;
PUBLIC INTERNATIONAL LAW – Reviewer Ruben R. De Asis

b. Heads of diplomatic missions, for the agreed that the exchange of instruments
purpose of adopting the text of a treaty should have that effect.
between the accrediting state and the
Consent by Ratification
state to which they are accredited.
c. Representatives accredited by states to an  When expressed: (art. 14, VCLT)
international conference or to an a. The treaty provides for such consent to be
international organization or one of its expressed by means of ratification;
organs, for the purpose of adopting the b. It is otherwise established that the
text of a treaty in that conference, negotiating states agreed that the
organization or organ. ratification should be required;
c. The representative of the state has signed
The legal basis of a state obligation is state consent.
the treaty subject to ratification; or
CONSENT, HOW EXPRESSED d. The intention of the state to sign the
treaty subject to ratification appears from
1. Consent by signature
the full powers of its representative or
2. By exchange of instruments constituting a
was expressed during the negotiation.
treaty
3. By ratification Signature vs. Ratification
4. Acceptance
 I some circumstances, consent to be bound by
5. Approval
a treaty requires not only a signature by the
6. Accession
potential state party in question, but also a
7. Other means
subsequent confirmation by the state that it
Pacta Sunt servanda (Art 26, VCLT) intends to be bound by the treaty.
 Ratification is not needed. When required, the
 Every treaty in force is binding upon the
initial signature is not yegt confirmation that
parties to it and must be performed by them
the state intends to be bound by the treaty.
in good faith.
Consent by Accession
Consent by signature
 When expressed;
 The consent of a state to be bound by a treaty
a. The treaty provides that such consent
is expressed by the signature of its
may be expressed by that state by means
representative when:
of accession;
a. The treaty provides that signature shall
b. It is otherwise stated that the negotiating
have that effect;
state agreed that such consent may be
b. It is otherwise established that the
expressed by that state by means of
negotiating States were agreed that
accession; or
signature should have that effect; or
c. All the parties have subsequently agreed
c. The intention of the state to give that
that such consent may be expressed by
effect to the signature appears from the
that state by means of accession.
full powers of its representatives or was
expressed during the negotiation Reservation
Consent by Instrument  A unilateral statement, made by a state, when
signing, ratifying, accepting, approving or
 Consent of states to be bound by a treaty
acceding to a treaty, whereby it purports to
constituted by instruments exchanged
exclude or to modify the legal effect of certain
between them may be expressed by that
provisions of the treaty in their application to
exchange when the instruments declare that
that state.
their exchange shall have that effect or it is
otherwise established that those states

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INTERPRETATIVE DECLARATION VS. QUALIFIED Reservations incompatible with the object and
purpose of treaty
INTERPRETATIVE QUALIFIED
Mere political Capable of constituting  The object and purpose of a treaty is
manifestation that has no reservation; thus, compromised if the reservation affects an
binding effect upon the create a binding effect essential element of the treaty that is
other parties upon other parties necessary to its general tenor, in such a way
that the reservation impairs the raison d’etre
Simple Conditional of the treaty.
Mere political Refer to a situation Acceptance of Reservation, when required.
manifestation that has where the state subjects
no binding effect upon its consent to be bound 1. When it appears from the limited number of
the other parties by the treaty to a the negotiating states and the object and
specific interpretation of purpose of a treaty that the application of the
the treaty, or specific treaty in its entirety between all the party is
provisions thereof an essential condition of the consent of each
one to be bound by the treaty, a reservation
Traditional or Unanimity Principle (on Reservations) requires acceptance by all the parties.
2. When a treaty is a constituent instrument of
 Reservations are not valid unless accepted by an international organization unless it
all parties. otherwise provides, a reservation requires the
 A state wishing to make a reservation had to acceptance of the competent organ of that
obtain the consent of all the parties. If this organization.
was ot possible, the state could either;
a. Be a party to the original treaty sans the Acceptance of Reservations, when not provided in
reservation; treaty
b. Not a party at all 1. If a state accepts a reservation by another
Genocide Reservations Case state, they will be parties to the same treaty;
2. If a state objects to another state’s
 A state which has made and maintained a reservation the treaty will not enter into force
reservation which has been objected to by between the two states if the objecting state
one or more parties to the convention but not expresses a definite intention for that to be
by others, can be regarded as being a party to the case;
the convention, if the reservation is 3. A state’s reservation is effective when at least
compatible with the object and purpose of one other contracting state has accepted it.
the convention.
Reservations, effects (Art. 21, VCLT)
Reservations
A reservation established with regard to another party
 A state may, when signing, ratifying, in accordance with articles 19,20 and 23:
accepting, approving or acceding to a treaty,
formulate a reservation unless: a. Modifies for the reserving state in its relations
a. The reservation is prohibited by a treaty; with that other party the provisions of the
b. The treaty provides that only specified treaty to which the reservation relates to the
reservations, which do not include the extent of the reservation; and
reservation in question, may be made; or b. Modifies those provisions to the same extent
c. In cases not falling under sub paragraphs for that other party in its relations with the
(a) and (b), the reservation is reserving state.
incompatible with the object and purpose
of the treaty.

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The reservation does not modify the provisions of
the treaty for the other parties to the treaty inter
se.
When a state objecting to a reservation has not
opposed the entry into force of the treaty
between itself ad the serving state, the provisions
to which the reservation relates do not apply as
between the two states to the extent of the
reservation.
Reaction to Reservations; three ways
A state can react to another state’s reservation in the
following ways:
1. Accept the reservation in which event the
treaty will enter into force between the two
states with the reservation in force;
2. Object to the reservation and express an
intention that the treaty as a whole should
not enter into force between the states - - the
treaty will not govern the two state’s relation;
3. Object to the treaty but refrain from
expressing an intention that the treaty as a
whole should not enter into force between
the two states.
Reservation; when made
 According to Article 19 of the VCLT, a
reservation must be made by a state when
signing, ratifying, accepting, approving or
acceding to a treaty, and there is no mention
of a right to make a reservation after the
treaty in question has been ratified.
 A reservation cannot be effective if made
after the ratification of a treaty. It will become
valid if the other contacting party accept the
same.
Entry into force of treaties; how and when (Art.
24, VCLT)
1. As provided for by the treaty; agreement of
states
2. Consent established for all the negotiating
states
3. States whose consent is established after the
treaty entered into force, unless the treaty
otherwise provides.
Interim Period (Art. 18, VCLT)
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
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Ruben R. De Asis
 The period between the state giving its
consent to be bound by a treaty and when the
treaty enters into force.
 A state is obliged to refrain from acts which
would defeat the object and purpose of the
treaty.
Application of Treaties; provisional (Art. 25, VCLT)
A treaty or a part of a treaty is applied provisionally
pending its entry into force if;
1. The treaty itself so provides; or
2. The negotiating states have in some other
manner so agreed.
Provisional application of Treaties; When Terminated
Unless the treaty otherwise provides or the
negotiating states have otherwise agreed, the
provisional application of a treaty or a part of a treaty
with respect to a state shall be terminated if the state
notifies the other state which the treaty is being
applied provisionally of its intention not to become a
party to the treaty.
Application of Treaties to Third States
General Rule: International agreements bind only the
parties to them. A treaty does not create either
obligations or rights for a third state without its
consent.
Exceptions: Where the provisions of a treaty in
question have entered into customary international
law.
Creation of Obligations on third states
An obligation arises for a third state from a provision
of a treaty if the parties to the treaty intend the
provision to be the means of establishing the
obligations and the third state expressly accepts that
obligation in writing.
Treaty interpretation; General rule (Art. 31, VCLT)
A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light
of its object and purpose.
Treaty Interpretation; Elements to Consider
1. Objective or text
PUBLIC INTERNATIONAL LAW – Reviewer Ruben R. De Asis

2. Subjective or intention instrument listed in annex I was superfluous.

3. Teleological object and purpose x x x By entering into the Treaty, the parties
recognized the frontiers to which the text of
Approaches to Treaty Interpretation ---- (Memorize)
the treaty referred.
1. Textualist approach
Teleological Approach
2. Teleological approach
3. Evolutionary approach  In Whaling case, the ICJ underscored that
4. Systemic Integration treaty terms are not to be determined in the
5. Subsequent Practice abstract, but in the light of its context, object
and purpose. Apart from the preamble,
Textualist Approach to treaty interpretation
reference is made to the treaty’s historical,
In the case of Kasikili/Sedudu Island, the ICJ employed political and social factors.
the dictionary approach to find the ordinary meaning  Interpretation beyond the text of the treaty.
of an important term in a treaty.
Whaling in the Antarctic Case
Libyan vs CHAD (Territorial Dispute Case)
Australia v. Japan, ICJ (2014)
 ICJ said, “Interpretation must be based above
 “ Notwithstanding anything contained in this
all upon the text of the treaty. As a
Convention, any Contratcing Government may
supplementary measure recourse may be had
grant to any of its nationals a special permit
to means of interpretation such as the
authorizing that national to kill, take and treat
preparatory work of the treaty and the
whales for purposes of scientific research
circumstances of its conclusion.”
subject to such restrictions as to number ad
 Article 3, 1955 Treaty , “ The two High
subject to such other conditions as the
Contracting Parties recognize that the
Contracting Government thinks fit, and the
frontiers between the territories of Tunisia,
killing, taking, and treating of whales in
Algeria, French West Africa, and French
accordance with the provisions of this Article
Equatorial Africa on the one hand , and the
shall be exempt from the operation of this
territory of Libya, on the other, are those that
convention.” Article VIII (1), ICRW.
result from the international instruments in
 Taken as a whole, the court considers that
force on the date of the constitution of the
JARPA II involves activities that ca broadly be
United Kingdom of Libya as listed in the
characterized as a scientific research, but that
attached Exchange of Letters.
the evidence does not establish that the
 According to Article 3 of the 1955 Treaty, the
programme’s design and implementation are
parties “recognize that frontiers … are those
reasonable in relation to achieving its stated
that result” from certain international
objectives. The court concludes that the
instruments. The word “recognize” used in
special permits granted by Japan for the
the treaty indicates that a legal obligation is
killing, taking and treating of whales in
undertaken.
connection with JARPA II are not “for
 To recognize a frontier is essentially to
purposes of scientific research” pursuant to
“accept” that frontier that is, to draw legal
Article VIII, paragraph 1, of the convention.
consequences from its existence, to respect it
and to renounce the right to contest it in the Evolutionary Approach
future.
 An evidence of a treaty’s past intent
 The terms of the treaty signified that the
should be viewed against the
parties thereby recognized complete frontiers
contemporary socio-legal context under
between their respective territories as
which it is to be implemented.
resulting from the combined effect of all the
instruments listed in Annex I; no relevant Evolutionary Approach; when appropriate
frontier is to be left undefined and no
Hebrews 10:16
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PUBLIC INTERNATIONAL LAW – Reviewer
 Term of the treaty embrace change
- An evolutionary approach is proper
when the terms of a treaty may be
such as to embrace change of
meaning to expand their coverage so
as to include new activities, scientific
advances, ad technological
developments not specifically
conceived at the time the treaty was
drawn up.
 Developments in the legal system
- An evolutionary approach can also be
applied where there are
developments in the legsl system
which may have impacts on the treaty
under consideration.
 Treaty regime inherently adopted to
development
- An evolutionary interpretation is
proper for treaties which constitute a
regime of a nature inherently adapted
to development, as where the treaty
contains broad propositions of
principle which necessarily involve
elaboration to have precise effect.
Systemic Integration Approach to treaty
interpretation
This contemplates that treaties are themselves
creatures of international law. Thus, a treaty must
refer to principles of international law relevant to the
parties for questions it does not itself resolve
expressly.
There shall be taken into account, together with the
context:
xxx
c) any relevant rules of international law applicable in
the relations between the parties. Article 31(c), VCLT
Hassan vs. United Kingdom
ICJ said, “the European Convention on Human Rights
must be interpreted in harmony with other rules of
international law of which it forms part, including
international humanitarian law.”
Subsequent Practice Approach
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
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Ruben R. De Asis
 There shall be taken into account,
together with the context:
xxx
b) any subsequent practice in the
application of the treaty which establishes
the agreement of the parties regarding its
interpretation.
 ICJ said, “a consistent practice on the part
of the High Contracting Parties,
subsequent to their ratification of the
Convention, could be taken as
establishing their agreement not only as
regards interpretation but even to modify
the text of the convention.
FUNDAMENTAL RULES OF TREATY INTERPRETATION
1. Good faith
2. Ordinary meaning; special meaning
3. Subsequent agreement
4. Subsequent practice
As a general rule, stated in Libya v. CHAD case, in
interpretation of a treaty, interpretation must be
based on the text of the treaty .
Exception: Supplementary means of Interpretation
Supplementary means of Interpretation
 Recourse may be had to supplementary
means of interpretation, including the
preparatory work of the treaty and the
circumstances of its conclusion, in order
to confirm the meaning resulting from the
application of article 31, or to determine
the meaning when the interpretation
according to article 31:
a. Leaves the meaning ambiguous or obscure
b. Leads to a result which is manifestly absurd or
unreasonable.
Invalidity of Treaties (Art. 46. VCLT)
Grounds
 A state may not invoke the fact that its
consent to be bound by a treaty has been
expressed in violation of a provision of its
internal law regarding competence to
conclude treaties as invalidating its
consent unless the violation was
PUBLIC INTERNATIONAL LAW – Reviewer
manifest and concerned a rule of its
internal law of fundamental importance.
 A violation is manifest if it would be
objectively evident to any state
concluding itself in the matter in
accordance with normal practice and in
good faith.
Land Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria)
 On the necessity of ratification. While in the
international practice, a two-step procedure
consisting of signature and ratification is
frequently provided for in provisions
regarding entry into force of a treaty, there
are also cases where a treaty enters into force
immediately upon signature. Both customary
international law and the Vienna Convention
on the Law of Treaties leave it completely up
to states which procedure they want to
follow.
 States have the liberty to decide on how a
consent can be made or expressed to be
bound by a treaty or international
agreement.
 Article 11, VLCT: the consent of the state to be
bound by a treaty maybe expressed by
signature, exchange of instruments
constituting a treaty, ratification, acceptance,
approval or accession, or by any other means
if so agreed.
 On the alleged non-compliance of
constitutional rules. The rules concerning the
authority to sign treaties for a state are
constitutional rules of fundamental
importance. However, a limitation of a head
of state’s capacity in this respect is not
manifest in the sense of article 46, paragraph
2, unless at least properly publicized. This is
particularly because Heads of state belong to
the group of persons, who “in virtue of their
functions and without having to produce full
powers” are considered as representing their
state.
 On Cameroon’s presumed knowledge of the
Head of State’s incompetence to bind
Nigeria. In this regard the court notes that
there is no general legal obligation for states
to keep themselves informed of legislative
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 17 | P a g e
Ruben R. De Asis
and constitutional developments in other
states which are or may become important
for the international relations of these states.
Invalidity; Termination or Suspension; Grounds
Grounds for Invalidity
1. Error
2. Fraud and Corruption
3. Coercion
4. Conflict with a peremptory norm
Grounds for Termination or Suspension
1. Material breach
2. Supervening impossibility of performance
3. Rebus sic stantibus
ERROR in treaties
 State may invoke an error in a treaty as
invalidating its consent to be bound by the
treaty if the error relates to a fact or situation
which was assumed by that state to exist at
the time when the treaty was concluded and
formed an essential basis of its consent to be
bound by the treaty.
ERROR; when cannot be invoked
 If the state in question (a) contributed by its
own conduct to the error or if the
circumstances were such as to (b) put that
state on notice of a possible error.
Temple of Preah Vihear
Cambodia v. Thailand
It is an established rule of law that the plea of error
cannot be allowed as an element vitiating consent if
the party advancing it contributed by its own conduct
to the error, or if it could have avoided it, or if the
circumstances were such as to put the party on notice
of a possible error.
FRAUD as a means of invalidating consent
If a state has been induced to conclude a treaty by the
fraudulent conduct of another negotiating state, the
state may invoke the fraud as invalidating its consent
to be bound by the treaty.
CORRUPTION of a representative as ground for
invalidating consent
PUBLIC INTERNATIONAL LAW – Reviewer
If the expression of state’s consent to be bound by a
treaty has been procured through the corruption of its
representative directly or indirectly by another
negotiating state, the state may invoke such
corruption as invalidating its consent to be bound by
the treaty.
COERCION
 Coercion of a representative of a state (art.
51)
- The expression of a state’s consent to
be bound by a treaty which has been
procured by the coercion of its
representative through acts or threats
directed against him shall be without
any legal effect.
 Coercion of a state by the threat or use of
force (art. 52)
- A treaty is void if its conclusion has
been procured by the threat or use of
force in violation of the principles of
international law embodied in the
charter of UN.
JUS COGENS in conflict with treaty
 (Art. 53) Already existing jus cogens norms
- A treaty is void if, at the time of its
conclusion, it conflicts with a
peremptory norm of general
international law.
 (art. 64) Emerging jus cogens norms
- If a new peremptory norm of general
international law emerges, any
existing treaty which is in conflict with
that norm becomes void and
terminates.
JUS COGENS in conflict with treaty; Consequences
 Already existing jus cogens norms
- The parties are to eliminate as far as
possible the consequences of any act
- Performed in reliance on any
provision which conflicts with jus
cogens and bring their mutual
relations into conformity with the
peremptory norm.
 Emerging jus cogens norms
- The parties are released from any
obligation further to perform the
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 18 | P a g e
Ruben R. De Asis
treaty, but this does not affect any
right, obligation or legal situation of
the parties created through the
execution of the treaty prior to its
termination, provided that the rights,
obligations, or situations may be
maintained thereafter in conformity
with the new peremptory norm.
Termination of, withdrawal from a treaty; how made
The termination of a treaty or withdrawal of a party
may take place:
a. In conformity with the provisions of a treaty;
or
b. At any time by consent of all the parties after
consultation with the other contracting states.
Suspension of a treaty; how made
The operation of a treaty in regard to all the parties or
to a particular party may be suspended:
a. In conformity with the provisions of a treaty;
or
b. At any time by consent of all the parties after
consultation with the other contracting states.
Termination or suspension of a treaty
A treaty shall be considered as terminated if all the
parties to it conclude a later treaty relating to the
same subject matter and:
a. It appears from the later treaty or is otherwise
established that the parties intended that the
matter should be governed by that treaty; or
b. The provisions of a later treaty are so far
incompatible with those of the earlier one
that the two treaties are not capable of being
applied at the same time.
The earlier treaty shall be considered as only
suspended in operation if it appears from the later
treaty or is otherwise established that such was the
intention of the parties.
Material Breach; How constituted
A material breach of a treaty consists in:
a. A repudiation of the treaty not sanctioned by
the present Convention; or
PUBLIC INTERNATIONAL LAW – Reviewer
b. The violation of a provision essential to the
accomplishment of the object or purpose of
the treaty.
Gabcikovo-Nagymaros Project Case
Hungary v. Slovakia, ICJ (1997)
The notification of termination by Hungary on 19 May
1992 was premature. No breach of the Treaty by
Czechoslovakia had yet taken place and consequently
Hungary was not entitled to invoke any such breach of
the Treaty as a ground for terminating it when it did.
Rebus sic stantibus
Fundamental change of Circumstances
 This is a customary international law which
provides that where there has been a
fundamental change of circumstances since
an agreement was concluded, a party to that
agreement may withdraw from or terminate
it.
Rebus sic stantibus; When Applicable
A fundamental change of circumstances which has
occurred with regard to those existing at the time of
the conclusion of a treaty, and which was not
foreseen by the parties, may not be invoked as a
ground for terminating or withdrawing from the
treaty unless:
a. The existence of those circumstances
constituted an essential basis of the consent
of the parties to be bound by the treaty; and
b. The effect of the change is radically to
transform the extent of obligations still to be
performed under the treaty.
Rebus sic stantibus; When NOT Applicable
A fundamental change of circumstances may not be
invoked as a ground for terminating or withdrawing
from a treaty:
a. If the treaty establishes a boundary; or
b. If the fundamental change is the result of a
breach by the party invoking it either of an
obligation under the treaty or of any other
international obligation owed to any other
party to the treaty.
Rebus sic stantibus; as a ground for
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 19 | P a g e
Ruben R. De Asis
1. Termination of a treaty;
2. Withdrawal from a treaty; and
3. Suspension of the operation of a treaty.
nsists in:
a. A repudiation of the treaty not sanctioned by
the present Convention; or
b. The violation of a provision essential to the
accomplishment of the object or purpose of
the treaty.
Gabcikovo-Nagymaros Project Case
Hungary v. Slovakia, ICJ (1997)
 During the proceedings, Hungary presented
five arguments in support of the lawfulness,
and thus the effectiveness, of its notification
of termination; one of which was the
occurrence of a fundamental change of
circumstances - - political nature diminishing
economic viability, progress of environmental
knowledge, development of new norms of
international law.
 ICJ said, “ the changed circumstances are not
of such a nature, either individually or
collectively, that their effect would radically
transform the extent of the obligations still to
be performed in order to accomplish the
Project.
Treaties between states and international
organizations
These are governed by the 1986 Vienna
Convention on the Law of Treaties between States
and international Organizations.
International Organizations may have some
treaty-making powers.
PART 5 AND 6: THE ACTORS IN THE INTERNATIONAL
LEGAL SYSTEM & THE SUBJECTS OF INTERNATIONAL
LAW
THE SUBJECTS OF INTERNATIONAL LAW
1. States
2. International Organizations
3. Individuals
PUBLIC INTERNATIONAL LAW – Reviewer Ruben R. De Asis

4. Companies DISTINCTION BETWEEN RECOGNITION OF THE STATE

5. Groups & RECOGITION OF THE GOVERNMENT

Legal personality is relative and not all the participants STATE GOVERNMENT
to the international legal system hold the same rights.  Acknowledges  Implies that the
that the entity regime in
ICJ, Reparations Case, “Subjects are not necessarily fulfills the question is in
identical in their nature or in the extent of their criteria of effective
rights, and their nature depends upon the needs of statehood; control of a
the community.”  Can be accorded state;
without also  Necessarily has
accepting that a the
PRINCIPAL FEATURES OF INTERNATIONAL LEGAL particular regime consequence of
PERSONALITY is the accepting the
government of statehood of
1. The capacity to bring claims in respect to that state. the entity which
breaches of international law;  A willingness to the regime is
2. The capacity to conclude treaties; deal with the governing.
3. The enjoyment of privileges and immunities new state as a
from the exercise of national jurisdiction. member of the
international
ICJ, ADVISORY OPINION (UNILATERAL DECLARATION community.
OF INDEPENDENCE IN RESPECT TO KOSOVO)

“It is not uncommon for the Security Council to make

demands on actors other than states and Acknowledging a state may mean only the state and
international organizations and that it would require not the government
case-by-case evaluation to determine for whom the
Acknowledging the government includes
Security Council intended to create legal obligations.”
acknowledging the statehood

Recognition is NOT a criterion for statehood

DIFERENT ACTORS IN THE INTERNATIONAL LEGAL
SYSTEM
THEORIES ON NATURE OF RECOGITION
STATE –
DECLARATORY CONSTITUTIVE
 MOST IMPORTATNT ACTOR
 The creation of  Recogition by
 Only actor that can create international law
states is first other states is a
RECOGNITION (STATE V. GOVERNMENT) and foremost a precondition for
matter of law statehood
While the state is the legal under international law, and the  Highly
the government is the representative of the state that fulfillment of problematic
is entitled to act on the state’s behalf. The actual legal criteria.
effects of lack of recognition of a state are of a greater  The relevant
legal importance than those relating to lack of criterion for
recognition of a government. acquiring
statehood is
Malanczuk, “ but the state must not be identified with essentially one
its government; the state’s international rights and of effectiveness
obligations are not affected by a change of
government.

Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 20 | P a g e
PUBLIC INTERNATIONAL LAW – Reviewer Ruben R. De Asis

Declaratory recognition is the more followed deciding about the legality and legitimacy of foreign
approach governments.

LEGAL EFFECTS OF RECOGITION Policy of never recognizing government (Estrada

doctrine)
Constitutive Theory
2. Tobar or Wilson Doctrine
A state or government does not exist for the
purpose of international law until it is recognized. (Non-recognition of Unconstitutional Governments)

Declaratory Theory Recognition of government should only be granted if

its administration came into power by legitimate
Recognition has no legal effects; the existence
democratic means. States do not generally recognize
of a state or government is a question of pure facts,
governments that come into power as a consequence
and recognition is merely an acknowledgement of
of military coups or revolution.
facts.
3. Stimson Doctrine
Tinoco Doctrine
(Non-recognition)
(Recognition of Government)
The US would not recognize territorial changes
Tinoco’s regime was the government of Costa Rica
produced by force or aggression.
because it was clearly in effective control of Costa
Rica, and the fact that it had not been recognized by
several states made no difference. (applied
1933 MONTEVIDEO CONVENTION ON RIGHTS AND
declaratory approach)
DUTIES OF STATES
RECOGNITION ( EVIDENTIAL VALUE)
The political existence of the state is independent of
With Evidential Value recognition by other states.

When it is uncertain whether a body claiming to be a

state fulfils the factual requirements of statehood, the
evidential value of recognition can have a decisive
effect. CRITERIA OF STATEHOOD
Little Evidential Value (Article 1, 1993 Montevideo Convention)
Where the facts are clear that an entity claiming to be The state as a person of international law should
a state fulfils all the criteria for statehood, the possess the following qualifications:
evidential value of recognition or nonrecognition is
not strong enough to affect the outcome of a. A permanent population
statehood. b. A defined territory
c. Government; and
d. Capacity to enter into relations with other
States
1. ESTRADA DOCTRINE
Permanent Population
(Recognition of Government)
 The criterion is connected with that of
Upon the establishment of de facto governments in
territory and constitutes the physical basis for
other countries, Mexico did not support giving
the existence of a state.
recognition because it is considered a degrading
 It is not a requirement that the population has
practice. By injuring the sovereignty of other states,
a certain size.
recognition puts them in a vulnerable position
because their internal affairs can be judged by other  A community of persons sufficient in number
governments, which assume a critical attitude when capable of maintaining a permanent existence

Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 21 | P a g e
PUBLIC INTERNATIONAL LAW – Reviewer
and perpetuating through natural
reproduction
Defined Territory
 The control of territory is the essence of a
state
 Nothing precludes an entity with a tiny
landmass from fulfilling the requirement of a
territory.
 The entity’s boundary needs not be precisely
demarcated and settled.
 Control over a consistent area of undisputed
area is essential.
Island of Palmas
(Netherlands v. United States, ICJ 1928)
US hinges her title on cession (Treaty of Paris), as a
successor to the rights of Spain over the Philippines
and in the first place of discovery.
Spain’s discovery is not proved. Even if Spain had a
title, such had been lost. The Netherlands through the
East India Company, have possessed and exercised
rights of sovereignty out of conventions entered into
with the natives and princes of the island, establishing
the sovereignty of the Netherlands over the territories
of these princes, including the Palmas.
Discovery alone is insufficient to give title. It has to be
coupled with “continuous and peaceful display of
territorial sovereignty is as good as title. (Island of
Palmas case)
Effective occupation. Continuous and peaceful display
of sovereignty.
Territorial Sovereignty (Island of Palmas case)
Involve the right to display the activities of a state and
the obligation to protect with the territory the rights
of other states as well as the rights which each state
may claim for its nationals in foreign territory.
Territorial sovereignty is manifested when there is
continuous and peaceful display of sovereignty.
Continuous and peaceful display of state functions
(Island of Palmas case)
A constituent element of territorial sovereignty is not
only based on the conditions of the formation of
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 22 | P a g e
Ruben R. De Asis
independent states and their boundaries as well as on
an international jurisprudence and doctrine widely
accepted.
Nemo dat quod non habet
A state cannot give away what it does not have or
possess.
Spain did not have any right over the island of Palmas,
hence it could not give it away.
Defined Territory (Criterion for Statehood)
 What matters is that a State, consistently
controls a sufficiently identifiable core of
territory.
 A state may be recognized as a legal person
even though it is involved in a dispute with its
neighbor as to the precise demarcation of its
frontiers, so long as there is a consistent band
of territory which is undeniably controlled by
the government of the alleged state.
Government
Internal External
The existence of a It means the ability to
government implies the act autonomously on
capacity to establish the international level
and maintain a legal without being legally
order in the sense of dependent on other
constitutional states within the
autonomy. international legal order.
International Community of Jurists, “ Finland would
not fulfill the conditions for statehood until a stable
political organization had been created and until the
public authorities had become strong enough to
assert themselves through the territories of the State
without the assistance of foreign troops.
EFFECTIVENESS OF A GOVERNMENT
It seems that there is a need to distinguish between,
on the one hand, those situations where the entity
attempts to secede from within an existing State
structure, in which case secession will often be
contested, and, on the other instances where the
claim to statehood flows from a grant of
independence to the territory by a former sovereign.
Principle of State Continuity (Change of Government)
PUBLIC INTERNATIONAL LAW – Reviewer
The requirement of effective control over territory is
not always strictly applied; a state does not cease to
exist when it is temporarily deprived of an effective
government as a result of civil war or similar
upheavals.
Kinds of Government
1. De Facto Government
Actual possession of authority and control of the
state. Not necessarily established constitutionally or
legally.
All acts and proceedings of a de facto government are
good and valid. It cannot be rendered void even
though there is occupation made by other sovereign.
2. De Jure Government
Legal or legitimate government of a state and is
recognized by other states.
Kinds of De Facto Government
a. In its proper legal sense
That government that gets possession
ad control of, or usurps, by force or by
the voice of majority, the rightful legal
government and maintains itself
against the will of the latter.
b. Government of Paramount Force
Established and maintained by
military forces who invade and occupy
a territory of the enemy in the course
of war.
c. Insurrectional Government
Established as an independent
government by the inhabitants of a
country who rise in insurrection
against the parent state.
Right and Duty of a Belligerent Occupant
Co Cham v. Tan Keh , GRN L-5 17 September 1945
The belligerent occupant has the right and is
burdened with the duty to ensure public order ad
safety during his military occupation, he possesses all
the powers of a de facto government, and he can
suspend the old laws and promulgate ew ones and
make changes in the old as he may see fit, but he is
enjoined to respect unless absolutely prevented by
the circumstances prevailing in the occupied territory,
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 23 | P a g e
Ruben R. De Asis
the municipal laws in force which enforce public order
and regulate social and commercial life of a country.
Municipal laws of a conquered territory, or the laws
which regulate private rights continue in force during
military operation.
Philippine Executive Commission is a de facto
government.
Republic of the Philippines – a government
established by a belligerent occupant
Art 45 Hague convention, prohibits compulsion to
swear allegiance to hostile power
A state does not cease to exist even when temporarily
deprived of government as a result of civil war.
Even if the RP was established by the free will of the
government, it is still a de facto government
Both governments are de facto
Being de facto government, they are good and valid
The fact that a territory which has been occupied by
an enemy comes again into the power of its legitimate
government or sovereignty, does not, except in a very
few cases, wipe out the effects of acts done by an
invader, which for one reason or another it is within
his competence to do.
PRINCIPLE OF CONTINUITY OF LAW
(Co Cham v. Tan Keh)
Law once established continues until changed by
some competent legislative power. It is not changed
merely by change of sovereignty.
FORM OF A GOVERNMENT
International law is indifferent towards the nature of
the internal political structure of states. It is
indifferent to the form of government in question.
Capacity to enter into relations with other states
(Criterion of Statehood)
PUBLIC INTERNATIONAL LAW – Reviewer
To be a state, an entity must the ability to act without
legal interference from other states. Importantly,
commitments and obligations undertaken or imposed
under international law are not an impediment to
statehood.
Judge Anzilotti (PCIJ), “as long restrictions do not place
the state under the legal authority of another state,
the former remains an independent state however
extensive and burdensome those obligations may be.
Even though states enter into treaty as long as they
are not too dependent on what that state impose
upon them, they remain an independent state.
PRINCIPLE OF NON-INTERVENTION (Independence of
a State)
(Nicaragua v. US) Part of midterm
No state or group of states has the right to intervene,
directly or indirectly for any reason whatever, in the
internal or external affairs of any state x x x armed
intervention and all other forms of interference or
attempted threats against the personality of the state
or against its political, economic, and cultural
elements, are in violation of international law.
PRICIPLE OF EQUALITY AMONG STATES
All states enjoy sovereign equality. They have equal
rights and duties and are equal members of the
international community, notwithstanding differences
of an economic, social, political, or other nature.
Illegality in the creation of a State
(Illegitimate States)
States created in flagrant violation of basic norms of
international law, potentially of jus cogens norms, are
illegitimate.
EX INJURIA JUS NON ORITUR
No legal right can arise from wrongful conduct.
ILLEGITIMATE STATES (Created by use of Force)
General Rule:
Territorial entities created through the unlawful use of
force may also be effectively barred from statehood.
Exception:
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 24 | P a g e
Ruben R. De Asis
If unlawful use of force is used in order to further the
realization of the self-determination of a population.
SELF DETERMINATION (A right of Peoples)
All peoples have a right to freely determine their
political status and pursue their economic, social and
cultural development.
The purpose of United Nations are:
xxx
2. to develop friendly relations amog ations
based on repect of for the principle of equal
rights and self determination of peoples, and
to take other appropriate measures to
strengthen universal peace; x x x (Article 1 (2)
UN charter
East Timor case, ICJ, “the right to self determination is
an essential principle of international law that’s
already attained an erga omnes character.
Erga Omnes – “ towards all”
 a violation of which is a violation of ALL other
states
 a violation against a state is a violation against
all, hence any state can prosecute
SELF-DETERMINATION AND RECOGNITION ARE NOT
ELEMENTS/CRITERION/REQUISITES OF STATEHOOD
KINDS OF SELF DETERMINATION
1. Internal Self-Determination (Autonomy)
A people’s pursuit of its political,
economic, social, and cultural developmet
within the framework of an existing state.
2. External Self-Determination (Secession)
The establishment of a sovereign or
independent state, the free association or
integration with an independent state or the
emergence into any other political status
freely determined by a people.
Secession – is the effort of a group or section of a
state to withdraw itself from a political and
constitutional authority of that state, with a view to
achieving statehood for a new territorial unit on the
international plane.
PUBLIC INTERNATIONAL LAW – Reviewer
REFERENCE RE SECESSION OF QUEBEC
(SC of Canada)
On whether Quebec has a right to Unilateral
Secession
Not without negotiations. The Constitution
vouchsafes order and stability, and accordingly
secession of a province “under the Constitution” could
not be achieved unilaterally, that is, without
principled negotiation with other participants in
Confederation within the existing constitutional
framework.
On whether a right to unilateral secession exists
under international law
The right only arises under the principle of self
determination of people at international law where “a
people” is governed as part of a colonial empire;
where “a people” is subject to alien subjugation,
domination or exploitation; and possibly where “a
people” is denied any meaningful exercise of its right
to self determination within the state of which it
forms a part.
According to SC, the people of Quebec did not meet
the definition of people
On whether a right to unilateral secession exists
under international law
Although there is no right, under the
Constitution or at international law, to unilateral
secession, the possibility of an unconstitutional
declaration of secession leading to a de facto
secession is not ruled out. The ultimate success of a
secession would be dependent on recognition by the
international community, which is likely to consider
the legality ad legitimacy of secession having regard
to, amongst the other facts, the conduct of Quebec
and Canada, in determining whether to grant or
withhold recognition.
SELF-DETERMINATION : A general principle of law
Although international law does not specifically grant
unilateral secession, the existence of the right of a
people to self-determination is now so widely
recognized in international conventions that the
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 25 | P a g e
Ruben R. De Asis
principle has acquired a status beyond convention and
is considered a general principle of law.
Advisory Opinion on Kosovo’s Declaration of
Independence,
ICJ, “ International law of self-determination
developed on the 2nd half of the 20th century to create
a right to independence for peoples of non-self-
governing territories and peoples subject to alien
subjugation, domination and exploitations. A great
many new states have come into existence as a result
of the exercise of this right.
OTHER SUBJECTS OF INTERNATIONAL LAW
International Organizations
- An organization established by a treaty or
other instrument governed by international
law and possessing its own international
legal personality. International
organizations may include as members, in
addition to states, other entities.
Examples: United Nations, the North Atlantic Treaty
Organization (NATO), the institutions of European
Union.
NGO – private entities without legal entities in
international law
Examples: Amnesty International, and World Wildlife
Federation
CHARACTERISTICS OF INTERNATIONAL
ORGANIZATIONS
International organizations have the rights and
obligations accorded to them by states, e.g. power to
conclude necessary agreements, like treaties,
governed by international law and immunity from the
exercise of jurisdiction by national courts.
The extent of an organization’s rights and obligations
depend on its purposes and functions as specified in
its constituent documents and developed in practice.
State are the primary actors in the international legal
system
PUBLIC INTERNATIONAL LAW – Reviewer
LEGAL PERSONALITY OF INTERNATIONAL
ORGANIZATIONS
LIMITED
- As to substance by the treaty which states
have concluded to constitute them and to
accord them rights and duties to achieve
their specific tasks.
RELATIVE
- It exists only with regard to the member
states of the organization and with respect
to no-member states acknowledging the
organization.
NON-GOVERNMENTAL ORGANIZATIONS (NGO): Not
subjects of International Law
There are no international legal standards
governing the establishment and status of NGOs.
Inter-governmental organizations may agree to grant
NGOs a certain consultative or observer status and
thereby a limited international status, but this does
not make them a subject of international law.
INDIVIDUALS: Subjects of International Law
- They have some degree of international
personality which is limited – much more
limited than the legal personality of
international organizations.
La Grand Case (art 3, par 1, VCCR)
Vienna Conventions on Consular Relations
With a view facilitating the exercise of consular
functios relating to nationals of the sending state:
a. Consular officers shall be free to communicate
with nationals of the sending state and to
have access to them. Nationals of the sending
state shall have the same freedom with
respect to communication with and access to
consular officers of the sending state;
b. If he so requests, the competent authorities
of the receiving state, shall, without delay,
inform the consular post of the sending state
if, within its consular district, a national of
that state is arrested or committed to prison
or to custody pending trial or is detained in
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 26 | P a g e
Ruben R. De Asis
any other manner. Any communication
addressed to the consular post by the person
arrested, in prison, custody or detention shall
be forwarded by the said authorities without
delay. The said authorities shall inform the
person concerned without delay of his rights
under this subparagraph.
c.Consular officers shall have the right to visit a
national of the sending state who is in prison,
custody or detention, to converse and
correspond with him and to arrange for his
legal representation. They shall also have the
right to visit any national of the sending state
who is in prison, custody or detention in their
district in pursuance of a judgment.
Nevertheless, consular officers shall refrain
from taking action on behalf of a national who
is in prison, custody or detention if he
expressly opposes such action.
Germany , “ the breach of Article 36 by the US did not
only infringe upon the rights of Germany as a state
party to the VCCR but also entailed a violation of the
individual rights of the La Grand brothers invoking its
right of diplomatic protection on behalf of the La
Grands.
US, “The rights of consular notification and access
under the VCCR are rights of the states, and not of
individuals.
ICJ, (La Grand Case) “ artcle 36, pargarph 1 of the
VCCR creates individual rights, which, by virtue of
Article 1 of the Optional Protocol, may be invoked in
this Court (PCIJ) by the national state of the detained
person.
OTHER PRINCIPLES ABOUT INDIVIDUALS AS SUBJECT
OF INTERNATIONAL HUMAN RIGHTS LAW
 It is primarily under human rights law that
international law bestows rights on
individuals.
 States also impose obligations under
international law on individuals. Individual
responsibility under international manifest
itself in relation to crimes deemed particularly
serious by international society such as piracy,
hijacking of aircraft, crimes against peace,
crimes against humanity, and war crimes. The
PUBLIC INTERNATIONAL LAW – Reviewer
international legal personality of individuals
limited. It is derivative in the sense that it can
be conferred only by states.
Insurgents and NLMs : subject of international law
As long as the old government is still in power, a
wrongful act of an insurrectional movement
established in the territory of the state shall not be
considered as a act of that state under international
law. However, it will be considered as an act of that
state (in retroactive sense), if the insurrectional
movement becomes the new government.
Indigenous peoples: subjects of international law
Indigenous peoples have a right to the full
enjoyment as a collective or as individuals of all
human rights and fundamental freedoms and have
the right to be free from any kind of discrimination
ACQUISITION OF SOVEREIGNTY OVER TERRITORY
Sovereignty Over Territory - is the right to exercise
therein, to the exclusion of any other state, the
functions of a state.
Exemption: right of innocent passage
MODES OF ACQUISITION OF TERRITORY
1. Cession
2. Accretion
3. Avulsion
4. Occupation
5. Prescription
1. Cession
Transfer of territory, usually by treaty, from one
state to another; may also be done by sale, donation,
barter, or testamentary disposition
Nemo dat quod non habet
Nobody gives what he does not have
2. Occupation
The acquisition of terra nullius – that is, territory
which, immediately before acquisition, belonged
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 27 | P a g e
Ruben R. De Asis
to no state or has been abandoned by the
previous sovereign.
Abandonment of Territory
 Failure to Exercise authority over the territory
and intention to abandon the territory.
Effective Control
 Territory is occupied when it is placed in
effective control.
 Effective occupation is continuous effective
display of state functions
Inchoate Title
 An option to occupy the territory within a
reasonable time, during which the time other
states are not allowed to occupy the territory
Effective Control: when easier to establish
Terra Nullius
 Effective Control is easier to establish over
barren and uninhabited territory than over
territory which is inhabited by fierce tribes or
which is under the effective control of another
state
Res Communis
 An area that is not subject to the legal title of
any state.
Ex: High seas,
Effective Control and Intention and Will to Act as a
Sovereign
 Some cases say that a state, in order to acquire
territory by occupation, must not only
exercise effective control but must also have
the intention and will to act as a sovereign.
 ICJ (Fisheries Jurisdiction Case), “ the
independent activity of private individuals is
of little value unless it can be shown that they
have acted in pursuance of some authority
received from their governments or that in
some other way their government have
asserted jurisdiction trough them.
3. Prescription
PUBLIC INTERNATIONAL LAW – Reviewer
A mode of acquiring title to territory
previously under the sovereignty of another
state derived from the existence of a form of
implied consent on the part of the state
whose rights are being displaced by the
acquiring state.
 An apparent display of sovereignty will not
prevail and secure title to territory if another
state can prove the existence of a pre-existing
legal right to the territory, such as a treaty-
based title.
 ICJ (Frontier Dispute Case; Burkna Faso v Mali),
“ if the disputed territory is effectively
administered by a state other than the one
possessing the legal title, preference should
be given to the holder of the title.
4. Conquest
Conferment of title over a territory on the victor
after a war. It is the act of defeating a opponent and
occupying all or part of its territory.
In the absence of a peace treaty, it was
necessary to prove that the war had come to an end
in a different way, by producing clear evidence that all
resistance by the enemy state and by its allies had
ceased.
Conquest does not of itself constitute a basis of
title to the land. It does give the victor certain rights
under international law as regards the territory, the
rights of belligerent occupation, but the territory
remains subject to the legal title of the ousted
sovereign.
Annexation – the acquisition of legal sovereignty by
on state over the territory of another, usually by
occupation or conquest. Thus, it amounts to an
aggression.
This follows from the rule that has developed to the
effect that the control over the relevant territory by
the state purporting to annex must be effective and
there must be no reasonable chance of the former
sovereign regaining the land.
Conquest and Annexation; Not legal modes of
Acquisition of Territory
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 28 | P a g e
Ruben R. De Asis
This may be stated in view of article 2 (4) of the
UN charter that prohibits the use of force and other
practice.
 The prohibition on acquiring territory by
conquest or annexation is concerned only
with international wars, not with internal
wars. Not with civil wars.
 Proibition only applies to international wars.
Adopted by Unga, “The territory of a state shall not
be the object of acquisition by another state resulting
from the threat or use of force. No territorial
acquisition from the threat or use of force shall be
recognized as legal.
5. Accretion
This describes the geographical process by
which new land is formed and becomes attached to
existing land, as for example the creation of islands in
a river mouth or the change in direction of a boundary
river leaving dry land where it had formerly flowed.
The formation of new territory must be the
result of natural forces.
Manmade features are not covered by this
mode of acquisition
Philippines v China
In the matter of the South China Sea Arbitration
The status of a feature should be ascertained on
the basis of its earlier, natural condition, prior to the
onset of significant modification.
PART 6: STATE SUCCESSION; CHANGE OF
SOVEREIGNTY OVER TERRITORY
State Succession
 The branch of international law which deals with
the legal consequences of a change of
sovereignty over territory; concerns the
replacement of one state by another in the
responsibility for the international relations of
territory
 1978 Viena Convention on Succession of States
in Respect of Treaties (VCSSRT)
PUBLIC INTERNATIONAL LAW – Reviewer
 1983 Vienna Convention o Succession of States
in Respect of State Property, Archives, and
Debts (VCSSRPAD)
New States
Whenever a new territorial entity emerges it is
necessary to initially determine if the entity should be
considered as a continuation of a pre-existing state or
as a completely new and separate entity.
Clean Slate Approach
(State Succession to Treaties)
The emerging state is not bound by the treaties
and agreements that were concluded by its
predecessor.
Exceptions:
1. Principle of uti possiditis juris (boundary
treaties and territorial treaties)
2. Human rights treaties
Art 11, VCSSRT, UTI POSSIDETIS JURIS
“A succession of states does not as such affect:
a. A boundary established by a treaty;
b. Obligations and rights established by a treaty
and relating to the regime of a boundary
UTI POSSIDETIS JURIS principle – geographical
boundaries created remain in force regardless of
whether these treaties ad boundaries coincide with
the religious or political affiliations.
ICJ (ERITREA v. YEMEN), “Boundary ad territorial
treaties made between two parties constitute a
special category of treaties representing a legal reality
which necessarily impinges upon third states because
they have the effect of erga omnes.
ICJ (Burkina Faso vs. Mali), “There is no doubt that
the obligation to respect pre-existing international
frontiers in the event of a state succession derives
from a general rule of international law, whether or
not the rule is expressed in the formula of uti
possidetis.
Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 29 | P a g e
Ruben R. De Asis
Moving-Frontiers Rule (Moving Treaty Boundaries)
When an existing state acquires territory, it does
not succeed to the predecessor state’s treaties; but its
own treaties normally become applicable to that
territory.
Exception: If the application of a particular treaty to a
certain territory is incompatible with the object and
purpose of the treaty.
Association of States
(Province of North Cotabato v RP Peace Panel on
Ancestral Domain)
An association is formed when two states of
unequal power voluntarily establish durable links. In
the basic model, one state, the associate, delegates
certain responsibilities to the other, the principal,
while maintaining its international status as a state.
Free associations represent a middle ground between
integration and independence.
The relationship between the Central
Government and the Bangsamoro juridical entity
shall be associative characterized by shared authority
ad responsibility with a structure of governance based
on executive, legislative, judicial and administrative
institutions with defined powers and functions in the
comprehensive compact. A period of transition shall
be established in a comprehensive peace compact
specifying the relationship between the central
government and the BJE.
MOA-AD (Provisions on Association)
1. The BJE’s capacity to enter into economic and
trade relations with foreign countries;
2. The commitment of the central government
to ensure the BJE’s participation in meetings
and events in the ASEAN and the specialized
UN agencies;
3. The continuing responsibility of the Central
Government over external defense.
4. The BJE’s right to participate in Philippine
official missions bearing on negotiations of
border agreements, environmental
protection, ad sharing of revenues pertaining
to the bodies of water adjacent to or between
PUBLIC INTERNATIONAL LAW – Reviewer Ruben R. De Asis

the islands forming part of the ancestral

domain.

Association; Not recognized in the Philippines

O province, city or municipality, not even the ARMM,

is recognized under our laws as having an
“associative” relationship with the national
government. Indeed, the concept implies powers that
go beyond anything ever granted by the Constitution
to any local or regional government. It also implies the
recognition of the associated entity as a state. The
Constitution, however, does not contemplate any
state in this jurisdiction other than the Philippine
State, much less does it provide for a transitory status
that aims to prepare any part of Philippine Territory
for independence.

Bangsamoro Juridical Entity; more than an

autonomous region

It is not merely an expanded version of the ARMM,

the status of its relationship with the national
government being fundamentally different from that
of the ARMM. Indeed, BJE is a state in all but name as
it meets the criteria of a state laid down in the
Montevideo Convention, namely, a permanent
population, a defined territory, a government, and a
capacity to enter into relations with other states.

Another reason why the MOA-AD is unconstitutional

is that it run counter article 2, section 22 of the 1987
Philippie Constitution which provides;

“The state recognizes and promotes the rights of

indigenous cultural communities within the
framework of national unity and development.”

Hebrews 10:16
"This is the covenant I will make with them after that time, says the Lord. I will put my laws in their hearts, and I will
write them on their minds.” 30 | P a g e