Sources of International Law

1. Sources in General

Formal Sources

-the various processes by which rules come into existence (ex. Legislation, treaty making, judicial
decision making, practice of states)

Material Sources

-not concerned with how rules come into existence but rather with the substance and content
of the obligation (ex. state practice, UN Resolutions, treaties, judicial decisions and the writings
of jurists)

2. Article 38 of the Statute of the International Court of Justice (ICJ)

Sources include:

• Treaties

• International custom

• General principles of international law

• Judicial decisions

• The writings of publicists

Pangilinan vs. Cayetano, G.R. No. 238875, March 16, 2021

3.
a. Treaties and conventions

A treaty can be defined as an agreement (usually written) between two or more States (or a State/group
of States and an IGO, or two IGOs), governed by international law and intended to create legal
obligations.

DBM v. Kolonwel Trading, G.R. No. 175608, June 08, 2007

ISSUE:

Whether or not the foreign loan agreements (Loan No. 7118-PH) with international financial
institutions, partake of an executive or international agreement and shall govern the
procurement of goods necessary to implement the project.

HELD:

This issue has been affirmatively answered in the case of Abaya. In that case, the court declared
that the RP-JBIC loan agreement was to be of governing application over the CP I project and
that the JBIC Procurement Guidelines, as stipulated in the loan agreement.
 Under the fundamental international law principle of pacta sunt servanda, the RP, as borrower,
bound itself to perform in good faith its duties and obligation under Loan No. 7118-PH. Applying
this postulate, the IABAC was legally obliged to comply with, or accord primacy to, the WB
Guidelines on the conduct and implementation of the bidding/procurement process in question.

Abaya v. Sec. Ebdane, G.R. No. 167919, February 14, 2007

FACTS:

On May 7, 2004 Bids and Awards Committee (BAC) of the Department of Public Works and
Highways (DPWH) issued a Resolution No. PJHL-A-04-012. It was approved by DPWH Acting Secretary
Florante Soriquez. This resolution recommended the award to China Road & Bridge Corporation of the
contract for the implementation of civil works for Contract Package No. I (CP I), which consists of the
improvement/rehabilitation of the San Andres-Virac-Jct. Bago-Viga road, with the lengt of 79.818
kilometers, in the island province of Catanduanes.

This Loan Agreement No. PH-204 was executed by and between the JBIC and the Philippine Government
pursuant to the exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador
Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Secretary Siazon,
in behalf of their respective governments.

ISSUE:

Whether or not the Loan Agreement No. PH-204 between the JBIC and the Philippine Government is a
kind of a treaty.

HELD:

The Loan Agreement No. PH-204 taken in conjunction with the Exchange of Notes dated December 27,
1999 between the Japanese Government and the Philippine Government is an executive agreement.

An “exchange of notes” is a record of a routine agreement that has many similarities with the private
law contract. The agreement consists of the exchange of two documents, each of the parties being in
the possession of the one signed by the representative of the other.

…treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding,

modus vivendi and exchange of notes all are refer to international instruments binding at international
law.

Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the result
of long practice among the States, which have accepted them as binding norms in their mutual relations.
Therefore, they are regarded as international customary law.

That case was dismissed by the SCORP last Feb. 14 2007.

What the petitioners wanted was that Foreign funded projects also undergo the procurement process.

The dismissal of the case somehow gave justification for the delay of the implementing rules for foreign
funded projects (IRR-B) of the procurement law If we recall the decision of the Abaya vs Ebdane was
used by the DOJ when the DOTC Secretary was asking for an opinion from the former, during the ZTE
controversy.as ruled by the Supreme Court in Abaya v. Ebdane, an exchange of notes is considered a
form of an executive agreement, which becomes binding through executive action without need of a
vote by the

Senate and that (like treaties and conventions, it is an international instrument binding at international
law,

The second issue involves an examination of the coverage of Republic Act No. 9184, otherwise known as
the “Government Procurement Reform Act”. Section 4 of the said Act provides that it shall

apply to: … the Procurement of infrastructure Projects, Goods and Consulting Services, regardless of
source of funds, whether local or foreign, by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned and/or -controlled corporations and
local government units, subject to the provisions of Commonwealth Act No. 138. Any treaty or
international or executive agreement affecting the subject matter of this Act to which the Philippine
government is a signatory shall be observed.

b. Customary international law

International Custom

A customary rule requires the presence of two elements:

• an objective element consisting of a relatively uniform and constant State practice; and

• a psychological element consisting of the subjective conviction of a State that it is legally bound to
behave in a particular way in respect of a particular type of situation. This element is usually referred to
as the opinio juris sive necessitatis.

Asylum Case (Colombia v. Peru), ICJ Reports, 20 November 1950

The ICJ in the Asylum Case (Columbia v Peru) 6 described custom as a ‘constant and uniform usage,
accepted as law’, i.e. those areas of State practice which arise as a result of a belief by States that they
are obliged by law to act in the manner described.

ii. Elements

1. State practice

a. Substantial uniformity

It is clear that major inconsistencies in practice will prevent the creation of a rule of

customary international law. In the Asylum Case the ICJ noted that:

The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so
much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views
expressed on different occasions; there has been so much inconsistency in the rapid succession of
conventions on asylum, ratified by some states and rejected by others, and the practice has been so
much influenced by considerations of political expediency in the various cases, that it is not possible to
discern in all this any constant and uniform usage, accepted as law. . . .12 However, complete uniformity
is not required and minor inconsistencies will not prevent the creation of a customary rule provided that
there is substantial uniformity. In the North Sea Continental Shelf Cases, the Court noted that State
practice should be ‘both extensive and virtually uniform’. This question of uniformity and consistency of
practice was returned to not, in order to establish a rule of custom, necessary that all State practice be
rigorously consistent. It would suffice that conduct in general was consistent with the rule and that
instances of practice inconsistent with the rule be treated as breaches of that rule rather than as
recognition of a new rule. The ICJ added that:

If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by
appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s
conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to
weaken the rule.14

Generality of the practice

In the North Sea Continental Shelf (Federal Republic of Germany v Denmark and Federal Republic of
Germany v Netherlands) (Merits),15 the ICJ said that State practice must be extensive in order to create
a customary rule. This means that the actual practice must be widespread, but universality of practice is
not required and indeed, is rarely achieved taking into account that any customary rule usually evolves
through compromise. If a large number of States representing the major political, legal and socio-
economic systems follow a particular practice and expect it to be binding, it will become a customary
rule.

As universality of a practice is not necessary, a customary rule may come into existence despite the
dissent of some States. In those circumstances a State which has persistently objected to the developing
new customary rule from the early stage of its formation will not be bound by it (see section 2.3.3).

International law recognises local and regional custom. Therefore, not only can a widespread practice
mature into a binding customary rule but this can also occur with a practice that has been followed by a
small number of States, even two States,16 and has been recognised by them as binding.

In the Asylum Case, the ICJ stated: The Columbian Government has finally invoked ‘American
international law in general’ . . . it has relied on an alleged regional or local custom particular to Latin
American states. The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party. The Columbian Government
must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by
the states in question, and that this usage is the expression of a right appertaining to the state granting
asylum and a duty incumbent on the territorial state. This follows from Article 38 of the Statute of the
Court, which refers to international custom ‘as evidence of a general practice accepted as law’.17

The Court, having commented on the uncertainties and contradictions disclosed by the practice of the
States concerned, continued: The Court cannot therefore find that the Columbian Government has
proved the existence of such a custom. But even if it could be supposed that such a custom existed
between certain Latin American states only, it could not be invoked against Peru which, far from having
by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the
Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the
qualification of the offence in matters of diplomatic asylum.18
In the North Sea Continental Shelf Cases, the ICJ emphasised that in order to rely on a customary rule, a
State must show that the relevant practice has been accepted by a State whose interests are particularly
affected by it.