PUBLIC INTERNATIONAL LAW
INTER – among
NATION – States
INTERNATIONAL LAW – the unique system of
law which primarily governs relations among states
and other actors in the international system.
NATION vs. STATE (not the same concept)
 Nation – with sense of belongingness
 State – requires the four elements of Statehood
a. Inhabitants or people
b. Territory
c. Government
d. Sovereignty or Independence
PROBLEM AREAS:
 No international legislature/legislative body –
Even the resolution of the GA of UN are
generally not binding on anybody.
 No true international court – the ICJ can bind
states only when states consent to be bound.
 No international President – the UNSC was
intended to be that entity BUT it is often
effectively hamstrung by the veto power.
Q: Is international law really a law?
ANS 1: [Source: Introduction to Public
International Law by Bernas, S. J. (2009 Ed.)]
YES. When speaking about international
law, the general notion is that there can be no law
binding sovereign states. National policy is often
preferred over international law… [They say]
International law is NOT a law because it is
commonly disregarded.
The reality is that States are bound by many
rules NOT promulgated by them… There is a
general respect for law because of the possible
consequences of defiance either to oneself or to the
larger society.
ANS 2: (Source: Public International Law, 5th Ed.
by Salonga & Yap)
International Law lacks the formal legal
process, as in the domestic legal system, for
settlement of disputes or the enforcement of the
law.
The popular view is that International Law
CANNOT be regarded as “real law”, since it is
commonly disregarded by States UNLESS obeying
it would suit their interests. But this popular
misconception is belied by the practice of States. It
CANNOT be denied that International Law is
constantly recognized as a law. It would be wrong
to assume that the rules of international law are
more honoured in their breach that in their
observance. As Dag Hammarskjold pointed out,
“By and large States, like individuals, quietly obey
the law in their activities because obedience to law
is a habit, from which for many reasons it is unwise
to depart” [Dag Hammarskjold, “Liberty and Law,”
in International Law in a Changing World (1963),
22, 26.]
ANS 3: (Source: International Law with Philippine
Cases and Materials and ASEAN Instrument by
Mirriam Defensor Santiago, 2015 Ed.)
International law is a law in reality because
it is accepted as law by states, and it is usually
obeyed.
State observes IL under the CONSENSUS
DOCTRINE. “In a broad sense, states accept or
consent to the general system of international law,
for in reality, without them, no such system could
possibly operate”. It is this approach which may be
characterized as consensus of the essential
framework within the demand for individual state
consent.
States consistently obey the majority of the
rules within the international legal system. If
international law fails to resolve any dispute, this is
no argument against its validity as a system of law.
IL is different from National law because the former
(IL) depends upon the voluntary acceptance of
states and other international subjects. This
voluntary character does NOT result in a
disqualification from being called law. If the
essence of law is obligation, then, since it imposes
obligations on states, IL is law, even if it does NOT
completely conform to the configuration of national
law.
Assured enforcement is NOT a fair test of
the binding quality of law. Thus, national law is law
NOT because of its capability for enforcement but
because of its capability for acceptance or tolerance.
 International law is law because its rules are DISTINCTION BETWEEN PRIVATE
promulgated in a manner accepted and recognized INTERNATIONAL LAW and PUBLIC
by the State as authoritative. INTERNATTTIONAL LAW
PRIVATE PUBLIC
Theories supporting international law as a law: INTERNATIONAL INTERNATTTIONAL
LAW LAW
i. Command Theory – laws consists of Conflict of Laws Law of Nations
commands originating from a sovereign and Set of Procedural Rules Body with Legal rule
backed up by threats of sanctions if disobeyed. that determines which which apply between
(Discredited view since in reality, nations sees legal system and which sovereign States and
international law not as command but as jurisdiction apply to a such other entities as
principles for free and orderly interaction.) given dispute have been granted
international personality
ii. Consensual Theory – IL derive its binding Municipal Law Proper International Law
force from the consent of States. Treaties are the Domestic law which Governs the
expression of consent. Likewise, customs as deals with cases where relationships between
voluntary adherence to common practice is seen foreign law intrudes in and among states and
as expression of consent. In reality, however, the domestic sphere also their relations with
there are many binding rules which do NOT where there are international
derive from consent. questions of the organizations and
applicability of foreign individual persons.
iii. Natural Law Theory – law is derived by law or the role of foreign (Bernas, 2009)
reason from the nature of man. IL is said to be courts. (Bernas, 2009)
an application of natural reason to the nature of
the state-person, i.e. customary law and what are Three Major Parts of Public International Law
regarded as generally accepted principles of law 1. Laws of Peace – governs normal relations
are an expression of what traditionally was between states in the absence of war.
called natural law. 2. Laws of War – Governs warring states; relations
between hostile or belligerent states during wartime.
In the ultimate analysis, however, the best 3. Laws of Neutrality – Does not involve oneself to
answer is pragmatic. Fundamentally, there is a conflicts or one which does not take sides; relations
general respect for law and also there is concern between a non-participant state and a participant
about the consequences of defiance either to state during wartime. This also refers to the
oneself or to the larger society. International law relations among non-participating states.
is law because it is seen as such by States and
other subjects of international law. SOURCES OF INTERNATIONAL LAW (Quiz
Question: Enumeration)
NOTE: INTERNATIONAL LAW is regarded as a PRIMARY SOURCES – the Statute of the
SOFT LAW (Non-Treaty Agreement) International Court of Justice directs the Court, in
Article 38 (1), to apply the following in deciding a
 International Agreement not concluded as case before it.
treaties and therefore NOT covered by the
Vienna Convention on the Laws of Treaties. a. International convention, whether general or
 Most administrative procedure carried out with particular, establishing rules expressly recognized
varying degree of CONSISTENCY and by contesting states;
UNIFORMITY that may eventually ripen into b. International custom, as evidence of a general
customary laws or become formalized later on practice accepted as law;
in treaties. c. The general principles of law recognized by
 Non-treaty obligation simpler and more flexible civilized nations;
foundation for future relations among states. d. Subject to the provision of Article 59, (1)
judicial decisions and (2) teachings of the most
highly qualified publicist of the various nations,
as subsidiary means for the determination of rule of
law. (Note: Secondary sources)
NOTE: Article 38 does NOT speak of sources.
Rather, it is primarily a directive to the Court on
how it should resolve a conflict brought before it.
QUIZ QUESTION: What is the reason behind the
hierarchy of sources of IL under Article 38 (1) of
SICJ? (MCQ)
My Answer: It contains secondary sources.
Answer: In International Law by MDS, Akehurst
concludes: “The different sources of IL 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 (intended to fill the
gap in treaty law and customary law) and the
subsidiary sources. As to subsidiary sources, which
prevails between a decision and a writing would
likely be resolved by the substantive merits of
reasoning employed.
Relationship between National and International
Law: Two Schools of Thoughts
MONIST
 No distinction; National Law and IL are
based on one fundamental principle. This
principle is either the concept of “right,” or
social solidarity, or the rule that agreements
must be carried out (pacta sunt servanda)
(MDS, 2015)
 According to this monistic doctrine, IL is
superior to municipal law; it is international law
which determines the jurisdictional limits of the
personal and territorial competence of States
(Salonga & Yap, 1992)
DUALIST
 There is a distinction; Claims IL is NOT binding
on states without its consent. (MDS, 2015)
It believes that there is a distinction between IL
and Municipal or National law or that both are
two separate realms. (Salonga & Yap, 1992)
 IL can never operate as the law of the land save
through municipal custom, judicial decisions, or
legislative enactment. An enabling legislation,
for example is required before a treaty or its
provisions can be made operative. The rule of
international law would become by adoption
rules of municipal law.
Q: How does IL becomes part of domestic law for
“DUALISTS”?
There are two theories to consider.
First is the Doctrine of Transformation. Since the
two system is distinct and operates separately
(under this view), for IL to become part of DL/ML,
it must expressly and specifically be transformed
into domestic law through the appropriate
constitutional machinery, such as an act of Congress
or Parliament (e.g. Philippines enacted RA 10353 in
compliance with ICPAPED; RA 9262 in
compliance with the CEDAW; RA 9851 or
Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes
Against Humanity in compliance with the Hague
and Geneva Convention”).
Second is the Doctrine of Incorporation. In the
Philippines, in case of treaties as international law,
they become part of the law of the land when
concurred by the Senate in accordance with Article
VII, Section 21 of the 1987 Constitution which sets
down the mechanism for transforming treaty into
binding municipal law. With regards to customary
law and treaties which have been customary law, by
saying that the Philippines “…adopts the generally
accepted principles of international law as part of
the law of the land …”, the Constitution manifests
its adherence to the “dualist” theory and at the same
time adopts the incorporation theory and thereby
makes international law part of domestic law.
DUALIST’S PERSPECTIVE (Based from the
book of Salonga & Yap, 1992)
INTERNATIONAL MUNICIPAL LAW
LAW
Sources of IL are Sources of ML are
custom grown up among customs and precedents
States and treaties grown up with the
concluded by them State’s jurisdiction and
legislation enacted by
the State’s lawmaking
authority.
IL regulates relations ML is concerned with
between States individuals in their
relations with each other
and with the State.
IL is NOT a law above, ML is a law of a 3. In a case involving Great Britain and Venezuela,
but between Sovereign sovereign over the arbitration tribunal held that “there could be no
States individuals subject to its question that national laws must yield to the law of
authority. nations if there was a conflict.”

Based from Atty. Libiran’s Lecture  In International Sphere, a State is legally bound
INTERNATIONAL MUNICIPAL LAW to observe its obligations under a treaty once it
LAW is duly signed and ratified in accordance with its
International level Domestic level constitutional system. It does NOT matter that
No political superior Existence of political the treaty is ineffective in the municipal sphere
superior on account of lack of implementing legislation.
Law “between and Laws of sovereign The Vienna Convention in the Law of Treaties
among” States “over” its subjects provides that in Article 27 that a State “may
Has several sources of Mainly from enactment NOT invoke the provisions of its internal law as
IL or by legislation justification for its failure to perform a treaty.”
Violations are submitted Violations are redress
to State-to-State through local process  In the municipal sphere, the relationship
transaction between IL and ML is determined by the
Liability is state-wide Liability is individual constitutional law of the individual States.
[Salonga & Yap, 5th Ed. (1992)]
Relation between IL and ML
MONISTIC PERSPECTIVE  Doctrine of Transformation – requires
 According to this monistic doctrine, IL and ML, legislative action to make the treaty enforceable
far from being essentially different, must be in the municipal sphere. Any international law
regarded as part of the same juristic conception. must be transformed through legislation before
IL is superior to municipal law; it is the said international law could be implemented
international law which determines the locally.
jurisdictional limits of the personal and
territorial competence of States (Salonga &  Doctrine of Incorporation – considers rules of
Yap, 1992). international law as forming part of the law of
the land and NO further LEGISLATIVE
 In the jurisprudence of international tribunals, ACTION is NEEDED to make such rules
the principle of the supremacy of international applicable in the domestic sphere. Section 2,
obligations over national law has found repeated Article II of the 1987 Constitution provides:
expressions. “The Philippines renounces war as an
instrument of national policy, adopts the
 Examples: generally accepted principles of international
1. Advisory Opinion in the Greco-Bulgarian law as part of the law of the land, and adheres to
Communities case [P.C.I.J. Rep., Ser. B, No. 17 the policy of peace, equality, justice, freedom,
(1930)] – the Permanent Court of International cooperation, and amity with all nations.”
Justice held that “it is generally accepted principle
of IL that in the relations between Powers who are  In making such principles of international law
contracting Parties to a treaty, the provision of ML “part of the law of the land”, no primacy is
CANNOT prevail over those of the treaty.” implied. Thus, a later law would prevail over a
generally accepted principle of international law
2. Advisory Opinion (Treatment of Polish Nationals insofar as the national and domestic court is
in Danzig) [P.C.I.J. Rep, Ser. A/B, No. 44] – A concerned.
State CANNOT adduce against another State its
own constitution in order to evade obligations  Under the doctrine of incorporation as applied
incumbent upon it under IL. in most countries, rule of international law are
given a standing equal, not superior to, the
national legislative enactment. Hence, in
 accordance with the principle, lex posterior
derogate priori, a treaty may repeal a statute and
a statute may repeal a treaty.
 In a State where the constitution is the highest
law of the land, both statute and treaties may be
invalidated if they are in conflict with the
constitution.
Q: In case of conflict, which would prevail?
ANS:
 Practically, all municipal tribunal concurs in the
proposition that the statutes of the State should
be presumed to conform to the generally
accepted principles of international law and that
courts, therefore, should NOT violate the laws
of nations.
 A municipal law which is in conflict with a rule
of international law will often be given effect in
municipal courts, the reason being that such
courts are organs of municipal law and are
accordingly bound by it in all circumstances.
The fact that international law has been made
part of the law of the land does NOT by any
means imply the primacy of IL over ML—a
standing equal to the national legislative
enactments. (Salonga & Yap)
 Should a conflict arise between an international
agreement and the Constitution, the treaty
would not be valid and operative as domestic
law. The Constitution in Article VIII, Section 5,
2(a) explicitly recognizes the power of the
Supreme Court to declare a treaty
unconstitutional. This does not mean, however,
that a treaty that has been declared
unconstitutional loses its character as
international law. Under the “dualists” theory,
which the Constitution accepts, the
unconstitutionality of a treaty is purely domestic
matter. As Article 27 of the Vienna Convention
of the Law on Treaties says, “A party may NOT
invoke the provision of its internal law as
justification for its failure to perform a treaty.
(Bernas, 2009 Ed.)
BASIS: Section 5, Article VIII of the 1987
Constitution.
 “Power of Judicial Review over all cases in
which the constitutionality or validity of any
treaty, international or executive agreement…”
 But in international sphere, IL is favoured over
ML (as earlier discussed).
Constitution vs. Treaty
 Treaty – a contract in writing between two or
more political authorities (as states or
sovereigns) formally signed by representatives
duly authorized and usually ratified by the
lawmaking authority of the state.
Q: In case of conflict, which prevails?
ANS: (It seems Municipal Law is the answer based
on the Municipal law principle).
 Power of Judicial review over “all cases in
which the constitutionality or validity of any
treaty, international or executive agreement,
law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in
question.” [Section 5, Article VIII]
NOTE: (However) Municipal Law in International
law According to international law principles, int.
law should have supremacy over national laws. This
was clearly manifested by Treaty Provisions:
Article (13) of the 1949 Draft
Declaration on Rights and Duties of States
(ILC, 1949) provides that: “Each State has
the duty to carry out in good faith its
obligations arising from treaties and other
sources of international law, and it may not
invoke provisions in its constitution or its
laws as an excuse for failure to perform this
duty”.
Article (27) of the Vienna
Convention on the Law of Treaties (1969)
provides that: “A party may not invoke the
provisions of internal law as justification for
its failure to perform a treaty”
Article (46) of the Vienna
Convention on the Law of Treaties (1969)
provides that: A State, in regard of invoking
its competence to conclude treaties, may not
“… invoke the fact that its consent to be
bound by a treaty has been expressed in
 violation of a provisions of its internal law
….-in order to - invalidate its consent ,
unless that violation was manifest and
concerned a rule of its internal law of
fundamental importance”.
Why is IL recognized and obeyed as law?
The three theories to consider are:
1. Law of Nature
2. Positivist Theory
3. Eclectic Theory
LAW OF NATURE - “Law are created by God”
“It must absolutely be maintained that the
obligation of the natural law is from God himself,
the creator and supreme governor of the human
race, who by virtue of his sovereignty over men, his
creature, has bound them to its observance. He
formed the nature of things and of man in such a
way that the latter cannot be preserved without a
social life.” – Proposed by Samuel Pufendorf, On
the Law of Nature and of Nations. (He gave natural
law a theological foundation and applied it to
government and international law)
(Personal note: It’s like saying close to a moralistic
system suggesting absolute value of obedience and
observance as a natural way of being man of God.)
 Social Contract Theory - According to
John Locke, man is inherently good.
o The ability to extend my hand and know
where it will hit.
o Agreement to be bound by authority to
restrict or limit freedom in exchange for
protection.
o Nature of Man → Law of Nature →
Social Contract
 Natural and Universal principle of right and
wrong, independent of any mutual intercourse
or compact.
 Every individual can act within reason and with
conscience.
 International law is a law above states
 Law need NOT be enacted, but merely
discovered. Law is a product of reason.
(Personal Note: Close to Thomas Hobbes’s
naturalist view that men are rational and social
beings).
POSITIVIST THEORY - “Laws are created by
men.”
 IL becomes binding because of the consent of
sovereign states.
 Consent is express in case of conventional law,
implied in case of customary law, and presumed
in case of general principles of law.
 IL is the law of coordination. (Proposed by
Richard Zouche)
ECLECTICS or GROTIANS
 Compromise position
 IL is binding because of the law of nature and
consent of states
 It is based on right reason and practice of states
(Proposed by Hugo Groitus)
NOTE: Law of Nature (Quiz Question: Choices did
NOT include Thomas Hobbes, but included John
Locke and Groitus, Groitus adopted both law of
nature (not man) and consent of State. Groitus was
the answer in the MCQ question)
As used by Thomas Hobbes in his treatises
Leviathan and De Cive, natural law is "a precept, or
general rule, found out by reason, by which a man is
forbidden to do that which is destructive of his life,
or takes away the means of preserving the same;
and to omit that by which he thinks it may best be
preserved."
(Personal Note: combination of the naturalist
positivist theory. PIL is accepted as a good law
based on rationality and through the states consent.)
SANCTIONS IN INTERNATIONAL LAW
1. General Welfare of the society of nations.
a. Example: US vs. USSR on Mutual
Assistance Destruction
b. NOTE: Watch Stanislov Petrov (2014)
2. Normal habits of obedience ingrained in the
nature of man as a social being. (Personal note:
Watch “Most humans are sheep study” on
Youtube.com)
3. Respect for world opinion and the desire to
project an agreeable public image.
4. Constant and reasonable fear of retaliation from
other states.
5. Coercive machinery of the United Nations.
Example: East Timor vs. Indonesia, Timor
Leste
ENFORCEMENT OF INTERNATIONAL LAW  Treaty is defined as “a contract in writing
1. Through international organization or regional between two or more political authorities (as
groups states or sovereign) formally signed by
2. Inter-State representative duly authorized and usually
a. Diplomatic relations ratified by the lawmaking authority of the state.”
b. Retorsion and reprisal (Atty. Libiran’s lecture)
c. War
3. Intra-state through municipal law  The 1969 Vienna Convention on the Law on
a. Rome State: creating the ICC Treaties defines a treaty as “an international
b. RA 9851: Act defining and penalizing agreement concluded between States in written
crimes against IHL form and governed by international law,
whether embodied in a single instrument or in
FUNCTIONS OF INTERNATIONAL LAW two or more related instruments and whatever
1. Promote international peace and security. its particular designation.” (Bernas, 2009 Ed.)
2. Foster friendly relations among nations and to
discourage the use of force in the solution of REQUISITES BEFORE A TREATY CAN BE
differences among them. CONSIDERED A SOURCE OF
3. Provide for orderly regulations of the conduct of INTERNATIONAL LAW
states in their mutual dealings. 1. Must be signed by a considerable number of
4. Ensure international cooperation in the pursuit of states
certain common purpose of an economic, social, 2. Must be of the same nature, and contain
cultural or humanitarian character. practically uniform provisions
3. Intend to lay down rules for observance by all.
SOURCE DU DROIT • Example: ICRC, United Nations
(Where law came from vs. Criteria under which a NOTE: Bilateral Treaties (Those between two states
rule is accepted as valid in the given legal system at – particular international law
issue)
Statute of the International Court of Justice directs ESSENTIAL CONDITION FOR THE
the Court, in Article 38 (1), to apply the following VALIDITY OF A TREATY (Quiz Question:
in deciding a case before it. Enumeration)
1. Capacity of the parties
 The Court whose function is to decide in 2. Competence of the particular organs concluding
accordance with international law such dispute the treaty
as submitted to it shall apply: 3. Reality of consent
a. International convention, whether general 4. Legality of the object of the treaty.
or particular, establishing rules expressly
recognized by contesting states; NOTE: Doctrine of consideration, which plays an
b. International custom, as evidence of a important role in law of contracts, has no
general practice accepted as law; application to treaties.
c. The general principles of law recognized
by civilized nations; INTERNATIONAL CUSTOMARY LAW/
d. Subject to the provision of Article 59, (1) CUSTOMARY INTERNATIONAL LAW
judicial decisions and (2) teachings of the CUSTOM USAGE
most highly qualified publicist of the various Practice has grown up Not as obligatory and
nations, as subsidiary means for the between states and has right as custom
determination of rule of law. come to be accepted as (Conviction to bind
binding by mere fact of other states)
NOTE: Article 38 does NOT speak of sources. persistent usage over a
Rather, it is primarily a directive to the Court on long period of time
how it should resolve a conflict brought before it. Example: State Example: Use of French
Immunity, State or English Rule as
DEFINITION OF TREATY
Responsibility language of diplomacy
NOTE: See Objective and Subjective element for
the application of ICL.
Problem areas:
1. Proof
2. Inflexibility
CASE: The Lotus Case (France v. Turkey, ICJ
1927)
ISSUE: WON Turkey has jurisdiction to try the
French officer or not.
RULING: YES. Turkey may also prosecute
1. Although there were a few cases in which states
in Turkey’s position had instituted prosecution, the
other states concerned had NOT protested.
2. Although most states in Turkey’s position had
refrained from instituting prosecutions, there was no
evidence that they have done so out of a sense of
legal obligation.
THE LOTUS CASE (FRANCE vs. TURKEY)
Permanent Court of International Justice (1927)
FACTS: A collision occurred on the high seas
between a French vessel – Lotus – and a Turkish
vessel – Boz-Kourt. The Boz-Kourt sank and killed
eight Turkish nationals on board the Turkish vessel.
The 10 survivors of the Boz-Kourt (including its
captain) were taken to Turkey on board the Lotus.
In Turkey, the officer on watch of the Lotus
(Demons), and the captain of the Turkish ship were
charged with manslaughter. Demons, a French
national, were sentenced to 80 days of
imprisonment and a fine. The French government
protested, demanding the release of Demons or the
transfer of his case to the French Courts. Turkey
and France agreed to refer this dispute on the
jurisdiction to the Permanent Court of International
Justice (PCIJ).
ISSUE: Whether or not Turkey violated
international law when Turkish courts exercised
jurisdiction over a crime committed by a French
national, outside Turkey?
RULING: A rule of international law, which
prohibits a state from exercising criminal
jurisdiction over a foreign national who commits
acts outside of the state’s national jurisdiction, does
not exist. Turkey, by instituting criminal
proceedings against Demons, did not violate
international law. First, a State cannot exercise its
jurisdiction outside its territory unless an
international treaty or customary law permits it
to do so. This is what we called the first Lotus
Principle. Second, within its territory, a State may
exercise its jurisdiction, on any matter, even if there
is no specific rule of international law permitting it
to do so. In these instances, States have a wide
measure of discretion, which is only limited by the
prohibitive rules of international law. This applied
to civil and criminal cases. If the existence of a
specific rule was a pre-requisite to exercise
jurisdiction, PCIJ argued, then “it would…in many
cases result in paralyzing the action of the
courts, owing to the impossibility of citing a
universally accepted rule on which to support
the exercise of their [States’] jurisdiction”. The
PCIJ held that a ship in the high seas is
assimilated to the territory of the flag State. This
State may exercise its jurisdiction over the ship, in
the same way as it exercises its jurisdiction over its
land, to the exclusion of all other States. In this
case, the Court equated the Turkish vessel to
Turkish territory. In this case, the PCIJ held that the
“… offence produced its effects on the Turkish
vessel and consequently in a place assimilated to
Turkish territory in which the application of Turkish
criminal law cannot be challenged, even in regard to
offences committed there by foreigners.” Turkey
had jurisdiction over this case.
NICARAGUA vs. US, 1986 ICJ 1 (27 June 1986)
Q: How is customary law determined?
ANS:
1. General practice or material factor
a. Non-intervention is found in Charter of
the Organization of American States
2. Accepted as Law or Subject Factor
a. Assent to the Declaration on Principles of
International Law concerning friendly
relations and Cooperation among States in
accordance with the Charter of the United
Nations.
FACTS: There were series of rebellion that
happened in Nicaragua and there were allegations
that the United States was supporting these rebels
through financing, equipping and training these
rebels. The Nicaraguan government demanded the
United States to cease such operations and to pay
damages. The United States was contending that
such intervention was valid based on a multilateral
treaty reservation of the United States, the
Vandenberg reservation, such that the intervention
was valid and was based on international customary
law.
ISSUE: Whether or not the intervention of the
United States was valid?
RULING: The court held that the principles of non-
use of force, non-intervention, respect for the
independence and territorial integrity of States, right
of collective self-defense and the freedom of
navigation; continue to be binding as part of
customary international law, despite the operation
of provisions of conventional law in which they
have been incorporated. In this case, there was no
basis of the intervention of the United States. The
act of United States was invalid as it is in contrary
with international customary law.
OPINION JURIS (Quiz Question: Definition)
 A sense on behalf of a state that is bound to the
law in question.
 Conviction felt by states that certain form of
conduct is required by international law.
GENERAL PRINCIPLES OF LAW
 The general principles of law recognized by
peace-loving nations
 Those which, because they are good and just,
have been accepted and are being observed by
the majority of civilized states.
 Based on reason and conscience.
Example: Prescription, estoppel, pacta sunt
servanda, good faith.
DECISIONS OF COURT
 No distinction whether international or local
court as long as they establish rules of
international law
NOTE!!! Doctrine of Stare Decisis is NOT
applicable in international law.
See Article 59, SICJ: Decisions of the ICJ
have binding force only between the parties in
respect to particular cases. [in relation to Article 38
(1)(d), SICJ]
Examples: Nuremberg Trial, ICTY, ICTR,
Yamashita (Source of Yamashita Standards)
WRITINGS OF HIGHLY QUALIFIED
PUBLICISTS
Requisites:
1. Publicist must be highly qualified
2. Writing must be fair and unbiased
representation of international law
Examples: Writings of Ian Brownlie, Publications
from International Organizations
OTHER SOURCES
1. Acts of international organizations
2. “Soft law”, such as Declarations and
Conferences
3. Equity, Justice and Natural law
JUS COGENS
 Compelling law a.k.a. peremptory norms
Elements of Peremptory norm (Article 53 of the
Vienna Convention of the Laws of Treaties:
1. Peremptory norm of general international
law
2. Accepted and recognized by the
International community
3. No derogation therefrom
4. Modified only by a subsequent norm of
general international law having the same
character. (Petralba, Hornbook on
International and Philippine Human Rights
Law, 2013 Ed.)
 Technical terms given to those norms of general
international law that are argued as
hierarchically superior. These are, in fact, a set
of rules, which are peremptory in nature and
from which no derogation is allowed under any
circumstances.
 This group of fundamental norms is superior to
other sources of international law and need
NOT be agreed upon by the State in a treaty to
 form part of the jurisprudence. They are deemed
inderogable, as well. (Petralba, Hornbook on
International and Philippine Human Rights Law,
2013 Ed.)
 Likened to a “Constitution” where all treaties,
agreements, or application of international law
must conform to.
Example: prohibition on the use of force; the law
on genocide; principle of racial non-discrimination;
crime against humanity; and the rules prohibiting
trade in slave or human trafficking.
ERGA OMNES (Quiz Question: Define)
 “Towards everyone”
 “Obligatio erga omnes” are obligations that are
owed by the States to all, regardless of the
presence or absence of their assent to be bound
thereby. (Petralba, Hornbook on International
and Philippine Human Rights Law, 2013 Ed.)
 Violations of certain international laws are NOT
only an offense against a state directly affected
by the breach, but also against all members of
the international community.
Example:
 Piracy (take the case of People v. Lol-lo and
Saraw); and
 It is a robbery or forcible depravation on the
high seas, without lawful authority and done
with animus furandi and in the spirit and
intention of universal hostility. Piracy is a
crime against mankind.
 Genocide (Prosecutor v. Akeyasu;
Prosecutor v. Rutaganda)
The State
Principal Subject of International Law: State
Definition:
 A group of people, more or less numerous,
permanently living in a definite territory, under
an independent government organized for
political ends and capable of entering into legal
relations with other states.
 Basic unit of the international community
 International person
 Has rights and obligations under international
law
Concept of a State
 The Montavideo Convention on the Rights and
Duties of States (IMPORTANT!)
 Agreement signed at Montevideo, Uruguay
on December 26, 1933 (and entered into
force the following year)
 It established a standard definition of a state
under international law. It stipulated that all
states were equal sovereign units consisting
of a:
o Permanent population;
o Defined territorial boundaries;
o A government; and
o An ability to enter into agreements.
 Among the convention’s provisions were that
signatories would not intervene in the domestic
or foreign affairs of another state, that they
would NOT recognize territorial gains made by
force, and that all disputes should be settled
peacefully.
 The agreement was signed by the US,
Argentina, Brazil, Chile, Columbia, the
Dominican Republic, Ecuador, El Salvador,
Guatemala, Haiti, Honduras, Mexico,
Nicagarua, Panama, Paraguay, Peru, Uruguay,
and Venezuela. Bolivia was the only country
attending the conference that refused to sign the
agreement.
 In the case of North Cotabato vs. GRP Peace
Panel, the concept was used to justify the
establishement of an independent Bangsamoro.
It argued, “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.”
NOTE: Republic of the Philippines – State-owned;
name of agency – government owned.
DISTINCTION: STATE v. NATION
STATE NATION
Juridical/juristic Ethnic or racial concept
concept/legal concept (Non-legal concept)  Fixed portion of the surface of the earth in
which the people of the state reside
A group of people, A nation is said to exist  Must be sufficient to provide the needs of the
living together in a fixed when a group of people inhabitants
territory, organized for are aware of, and feel  Big enough to be self-sufficient and small
political ends under bound by, common enough to be easily administered and defended
independent racial, or ethnic ties.
Government, and [Salonga & Yap, 5th Ed. GOVERNMENT
capable of entering into (1992)]  Agency or instrumentality, through which the
international relations will of the state is formulated, expressed, and
with other States. realized.
[Salonga & Yap, 5th Ed.
STATE GOVERNMENT  Inhabitants must have an organized government
Includes government as Instrumentality though exercising control over, and capable of
element which the will of the maintaining law and other within, the territory.
state is exercised [Salonga & Yap, 5th Ed. (1992)]

Q: How states are created?  Functions of the Government:

ANS: (RUSIA-A) Constituent – exercise of sovereignty;
1. Revolution – refers to a movement, often violent compulsory
to overthrow an old regime and effect a complete Ministrant – exercise of proprietary functions;
change in the fundamental institution of society. optional
EXAMPLE:
i. American Revolution  Added notes discussed in the book –
ii. EDSA Revolution (Why are we still Recognition of government:
called Philippines?) 1. Must be effective and stable (means must be
2. Unification (e.g. Germany) in possession of the machinery of state and
3. Secession – act of separating from a nation or without substantial resistance to its authority).
state and become independent (e.g. Timor-Leste 2. Must show willingness and ability to
4. Assertion of Independence (e.g. former discharge international obligations.
Yugoslavia, Kosovo) 3. In the former years, a third requirement was
5. Agreement (e.g. Netherlands) laid down – government should enjoy popular
6. Attainment of Civilization – process by which consent or approval of the people. This is also
society or place reach an advance stage of social known as the Tobar and Wilson Doctrine.
civilization. This precludes recognition to any government
coming into existence by revolutionary means
Element of a State: so long as the freely elected representatives of
1. People the people thereof have not constitutionally
2. Territory reorganized the country. (e.g. EDSA
3. Government Revolution)
4. Sovereignty (according to the PPT. But in
our discussion, we apply the Montevideo Estrada Doctrine – It presupposes that there is
Convention definition) the presence of a political upheaval in the
country. In the course of political upheaval, to
PEOPLE deal or not to deal with the government or
 More or less numerous for defense. anyone who has control of the state cannot be
 Both sexes for perpetuity. construed or be taken as an implied recognition
EXAMPLE: Japan, Vatican of that government. Since the non-recognition
of a foreign government has often been
TERRITORY construed as mark of disapproval and
 An area over which territory has effective recognition, as a sign of approval, some States
control. have adopted a policy of never issuing any
 declaration giving recognition to governments
and of accepting whatever the government is in
effective control without raising the issue of
recognition. This policy originated in Mexico in
1930 and was enunciated by its Foreign
Minister Estrada. (Salonga & Yap)
CAPACITY TO ENTER INTO RELATIONS
WITH OTHER STATES
 An entity is NOT a state UNLESS it has
competence, within its own constitutional
system, to conduct international relations with
other states, as well as the political, technical,
and financial capabilities to do so.
 The only aspect of freedom that is material is
the capacity of a State to deal with other States
(foreign affairs) free from external restraint.
Soverignty (included and discussed in The State:
Reduced Size PPT)
The supreme and uncontrollable power inherent
in a state by which that state is governed
Internal
Power of the state over its people
External
Relationship of a state with other states
SUBJECTS OF INTERNATIONAL LAW
The International Community
 Body of juridical entities which are governed by
the law of nations.
SUBJECT v. OBJECT of INTERNATIONAL
LAW
SUBJECT
o An entity that has rights and responsibilities
under that law.
o It has an international personality and can
assert rights and be the obligations assumed
by the subject. Not directly governed by the
rules of international law.
OBJECT
o Person or thing in respect of which rights are
held and obligations assumed by the subject.
Not directly governed by the rule of
international law.
o Rights are received and responsibilities
imposed through the instrumentality of an
intermediate agency.
Subjects
i. State
ii. Non-state-Actors
a. International Organizations
b. Multinational Companies
c. Individuals
INTERNATIONAL PERSONALITY
 Absolute
e.g. States
 Functional
e.g. International
Organizations
 Limited
e.g. Individuals and corporations
QUIZ QUESTION: What are the kinds of State?
 Independent
With full international personality
 Dependent
Do not have full control of their external
relations
ASPECTS OF GOVERNANCE
Internal Affairs + External Affairs = State
CLASSES OF STATES
INDEPENDENT STATES
1. Simple States – under a single and centralized
government that takes care of its internal as well as
external affairs
2. Composite States – Consists of two or more
states, each with its own separate government but
bound by a central authority which manages the
external affairs.
a. Federation – 2 or more states unite to
abandon their individual statehood. The
federal government takes care of foreign
affairs while member states take care of
their internal affairs (e.g. USA)
b. Confederation – two or more states unite
but do NOT abandon their individual
statehood
c. Personal Union – Where two or more
states decide to have a common head of state
while retaining their individual distinct
international personality
 d. Real Union – two or more states share
one or more state organs (e.g. Egypt and
Syria)
e. Incorporate Union – Union of two or
more states under a central authority
empowered to administer both its internal
and external affairs and possessed with
separate international personality. The union
itself has no international personality (e.g.
UK)
DEPENDENT STATES
• States subject to the authority of one or more other
states (in the conduct of external affairs). [Salonga
& Yap, 5th Ed. (1992)]
Kinds:
1. Colonies – Internal and external affairs are
controlled by colonial power.
2. Protectorates and suzerainties – internal affairs
are controlled by local leaders but external affairs
are administered by protecting power usually
through a treaty or agreement. For academic
discussion only as there are no more protectorates
or suzerainties. This is also considered as
International guardship.
a. We speak of suzerainty where, as in a
feudal system, there is a vassal. The vassal
State, under international guardianship, may
be absolutely or mainly represented
internationally by the suzerain State. To the
extent that vassal State is allowed to retain a
degree of control over the management of its
foreign relations.
b. A protectorate as distinguished from
suzerainty always retains, for some purpose,
a position of its own within the international
community, and for that reason is always
considered—to certain degree—an
international person and a subject of
international law.
NOTE: Atty. Libiran found some which still exist,
if I recall correctly.
NEUTRALIZED STATES
 A state which, in return for a permanent
guarantee of its territorial integrity by third
powers, is obligated to maintain permanent
neutrality, EXCEPT for situations for its own
defense. (e.g. Switzerland)
 Whether simple or composite, a State is said to
be personalized where its independence and
integrity are guaranteed by an international
treaty on the condition that such State obligates
itself never to take up arms against any other
State, except for self-defense, or to enter into
such international obligations as would
indirectly involve it in war. [Salonga & Yap, 5th
Ed. (1992)]
 Differentiate with “neutrality” – Does not
involve oneself to conflicts or one which does
not take sides
INSURGENTS, BELLIGERENTS, and
NATIONAL LIBERATION MOVEMENTS
 Requirement for them to be granted limited
international personality:
o They must exercise de facto control over
substantial part of national territory.
 Insurgents – rebels who occupy a substantial
portion of the territory, and are well organized
under some form of civil government.
 Belligerents – if with the above description, the
hostilities assume widespread proportions.
 Certain conditions before the right of
belligerency is accorded:
1. An organized civil government that has
control and direction over the armed struggle
launched by the rebels;
2. Occupation of a substantial portion of the
national territory;
3. Seriousness of the struggle, which must be so
widespread thereby leaving no doubt as to the
outcome;
4. Willingness on the part of the rebels to
observe the rules and custom of war.
The recognition of belligerency may be
accorded, expressly or impliedly, by the parent
State (e.i. proclamation by the parent State of a
blockade of the portion held by the rebels is implied
recognition) or by third States (proclamation of
neutrality by third States). It is very rare for
government to explicitly extend recognition to
rebels.

INTERNATIONAL ORGANIZATIONS
 May be granted international personality if:
1. Their purposes are mainly non-political.
2. They are autonomous.
e.g. ILO, FAO, WHO, IMF
INDIVIDUALS
1. UN Charter – “Dignity and worth of the human
person”
2. UDHR – “inherent dignity and equal and
inalienable rights of all members of the human
family”
3. Treaties – authorizing persons to bring suits
before internationall tribunals
4. Rules against Pirates – hostes humani generis
Territory
Definition
 Fixed portion of the surface of the earth
inhabited by the people of the state.
 Area over which a state has effective control
o Right to acquire territories is one of the
fundamental attributes of a state, but
subject to the generally accepted
principles of international law
Components of Territory
1. Terrestrial Domain
2. Maritime and Fluvial Domain
3. Aerial Domain
Meets and bound: Two Schools of Thoughts
Must be permanent and indicated with
precision because they generally define
jurisdiction of states.
Must NOT be certain but definitive core
must be identified.
Other school of thought: Sovereignty must be
exercised.
The case of Principality of Sealand – a
micronation.
September 2, 1967 – Sealand declared independent.
MODE OF ACQUIRING TERRITORY
Discovery and Occupation
 Acquisition of territory which is terra nullius
(land belonging to no one).
a. Philippines – NOT terra nullius because we
were not really uninhabited, but our territory
was already occupied by people whose
civilization falls below the European standard.
Cannot be claimed as terra nullius open to
colonization by states. Islands occupied by
native tribes were acquired by agreement, not
discovery, because they are NOT terra nullius.
b. Western Sahara Case (ICJ Rep. (1975) 12.
– An advisory opinion on the case where ICJ
rejected the claim of Spain over Western Sahara
based on alleged discovery, since at that time
the territory was already occupied by nomadic
tribes with ties to Morocco and Mauritania.
c. Requisites:
i. Possession – claimed on behalf of the State
represented by the discoverer and may be
effected through a formal proclamation and the
symbolic act of raising the national flag in the
territory.
ii. Administration – Inchoate title of discovery
will bar other states from entering the territory
until the lapse of a reasonable period within
which the discovering state may establish a
settlement thereon and commence to administer
it. As soon as sovereign rights are exercised,
inchoate title ripens into a full title.
THE ISLAND OF PALMAS CASE (US v.
Netherlands)
Decision: (based on the PPT) (EXAM QUESTION:
Midterms)
 Title based on Contiguity has NO STANDING
in INTERNATIONAL LAW
 Title by discovery is only an inchoate title.
 If another sovereign begins to exercise
continuous and actual sovereign, (and the
arbitrator required that the claim had to be open
and public and with good title), and the
discoverer does NOT contest this claim, the
claim by the sovereign that exercise authority is
greater than a title based on mere discovery. In
other words, there is a need to administer it.
 Discovery alone of a territory which is terra
nullius gives only an “inchoate” title, and must
be followed within a reasonable time by
effective occupation. [Salonga & Yap, 5th Ed.
(1992)]

 Arbitrator Max Huber sustained the territorial
claim of the Netherlands (held that Netherlands
held actual title to Palmas; it is now a part of
Indonesia). US claimed title on the discovery of
the Island by Spain (from whom US derived its
title) in the sixteenth century. Arbitrator held
that even if the international law of that century
recognized mere discoveryas sufficient to confer
title, such a title could not survive today, since
discovery alone without any subsequent act does
not establish sovereignty; and although the title
originally acquired was inchoate, it was NOT
turned into a real title by an actual and durable
taking of possession within a reasonable time
and could not therefore prevail over the
continuous and peaceful display of authority
over the islands by Holland. Discovery alone of
a territory which is terra nullius gives only an
“inchoate” title, and must be followed within a
reasonable time by effective occupation.
[Salonga & Yap, 5th Ed. (1992)]
THE PASSION ISLAND CASE (Clipperton
Island)
 Clipperton – uninhabited 9 sq. km coral atoll in
the eastern Pacific Ocean, southwest of Mexico
and west of Costa Rica
 French discoverers Martin de Chassiron and
Michel Du Bocage, commanding the Frenh
ships La Princesse and La Découverte
discovered the island in 1711; they drew up the
first map of the island and annexed it to France.
 Mexico reassered its claim over Clipperton
Island late in the 19th Century, and on
December 13, 1897, it sent the gunboat La
Democrata to occupy and annex it. A colony
was established, and a series of military
governors were posted to Clipperton, and a
lengthy diplomatic correspondence between the
two nations led to the conclusion of a treaty on
March 2, 1909, to seek the arbitration of King
Victor Emmanuel III of Italy, with each nation
promising to abide by that monarch’s final
determination. His decision would not be
rendered until 1931.
 On January 28, 1931 – King Victor Emmanuel
declared Clipperton to be of French possession.
They annexed it to France
 If a territory, by virtue of the fact that it was
completely uninhabited, is, from the first
moment when the occupying state makes
appearance there, at the absolute and
undisputable possession of that state, from that
moment the taking of possession is considered
accomplished and the occupation is formally
completed. (EXAM QUESTION: Midterms)
PRESCRIPTION
 Long, continued, and adverse possession to vest
acquisitive title in the claimant.
 No fixed period of possession yet in IL
 Las Palmas case: even if Spain discovered and
occupied the territory, the Netherlands acquires
the same by virtue of prescription as it exercised
sovereign rights over the islands for more than
two hundred years after its discovery by Spain.
(PPT)
 Hugo Grotius adopted the concept of
prescription that the territory may be acquired
through uninterrupted and uncontested
possession “going beyond memory”.
 The acquisition of territory by an adverse
holding continued through a long term of years.
It requires two essential facts: (a) continuous;
and (b) undisturbed possession.
CESSION
 Transfer of territory from one state to another by
agreement. (PPT)
 Transfer of title is effected upon the meeting of
the minds of the parties and does NOT have to
involve actual delivery of the ceded territory to
the acquiring state. (PPT)
 A bilateral agreement whereby one State
transfers sovereignty over a definite portion of
territory to another State. [Salonga & Yap, 5th
Ed. (1992)]
 It may be (a) voluntary or (b) forced cession.
• It may be a portion of the territory, or the entirely
of its domain. The agreement is usually embodied
in a treaty between the ceding State and the
acquiring State who absorbs the territory. [Salonga
& Yap, 5th Ed. (1992)]
SUBJUGATION/CONQUEST
 Formal annexation of a territory after it has been
conquered or occupied in the course of war.
 Conquest – acquisition of territory by force of
arms.
ACCRETION
 Accomplished through both natural and
artificial processes, as by the gradual and
imperceptible deposite of soil on the coasts of
the country through the action of water or more
effectively, by reclamation projects. (PPT)
 Increase in the land area of a State caused by the
operation of the forces of nature or, artificially,
through human labor. [Salonga & Yap, 5th Ed.
(1992)]
 Doctrine of accessio cedat principali (Accessory
follows the principal).
The Spratly Islands and the Scarborough Shoal
(Kalayaan Group of Islands)
 Discovered by Tomas Cloma
Q: What are we claiming?
1. Territory
2. Sovereignty
3. Both
PH claimed 60, Occupied 8, facility=1300m runway
China claimed=All, occupied=7, facility=military
facility
The Philippines is outnumbered and outpowered (as
shown in the pictures).
Resources:
 Marine Resources
 Gas and Oil
 Archipelagic Sea Lane
Q: Why the Philippines?
ANS: Control over the Pacific equates to power.
HISTORY OF THE DISCOVERY OF KIGS
 1947 – Tomas Cloma discovered KIGS
 1956 – Cloma issued a “proclamation to the
whole world” asserting ownership by discovery
and occupation of 33 islands of the Spratlys.
PROC and Vietnam immediately opposed.
NOTE: Did not annexed it to the Philippines.
 1971 – PH sent a diplomatic note to Taipei
demanding the removal of their garrison at Itu
Aba
 1974 – Cloma executed a “Deed of Assignment
and Waiver of Rights” in favour of the Republic
of the Philippines.
 1978 – PD 1596 – declaring most of the islands
as PH territory and annexing them to Palawan
province as “Kalayaan Island Group (KIG)”.
 1979 – Philippines release a map enclosing
KIGs within the archipelago.
o American counsel defended
Philippines in PCA.
 Contiguity and propinquity (weak argument
because of the HINTERLAND THEORY
wherein “a state is considered an island or group
of island as its natural Hinterlands must be
preferred as between claimant whose claims are
uncertain”
NOTE: This was discussed in Haydee Yorac’s
article during NatRes with Atty. Andrada
 Abandonment and Occupation – Japan
renounced the islands in the Treaty of Peace
with all their allies and their Bilateral Treaty of
Peace with China (However, the treaty did NOT
mention any beneficiary, this converted the
island groups into terra nullius. Japan owned it
by subjugation. But in 1952, it became terra
nullius (means “nobody's land”, which is used
in international law to describe territory which
has never been subject to the sovereignty of any
state, or over which any prior sovereign has
expressly or implicitly relinquished.)
 PCA – UNCLOS Arbitration. No ruling since
no territory but only rocks (LTEs)
Remedy: ITLOS to settle.