Damayon, S.

Lecture Notes in POLSCI 143: International Law (PART 1)

First Semester 2022-2023

A. INTERNATIONAL LAW DEFINED.

International Law is a body of legal principles, norms, and processes that regulates the relations of States
and other international persons and governs their conduct affecting the interest of the international
community as a whole. (Magallona, 2005)

What is the modern definition of public international law?

International law is the law that deals with the conduct of states and of international organizations and
with their relations inter se, as well as some of their reasons with persons, whether natural or juridical.
(Restatement (Third) of Foreign Relations Law of the United States).

What is private international law or conflict of laws?

Private international law is really domestic law that deals with cases where foreign law intrudes in the
domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts.
(Bernas, Public International Law, 2009).

Grand divisions of Public International Law

1. Laws of Peace – They govern normal relations between States in the absence of war;
2. Laws of War – They govern relations between hostile or belligerent states during wartime; and,
3. Laws of Neutrality – They govern relations between a non-participant State and a participant State
during wartime or among non-participating States.

Transnational Law – Umbrella term for all law that regulates actions or events that transcend national
frontiers, including but not limited to public and private international law (Philip Jessup).

Domestic or Local Law – it refers to the laws of a certain country that applies to their domestic affairs (but
which may have a non-territorial application).

B. BASIC CONCEPTS/PRINCIPLES

a. Erga Omnes (Vs. Erga Partes)-An obligation of every State towards the international community as a
whole. All states have a legal interest in its compliance, and thus all States are entitled to invoke
responsibility for breach of such an obligation. (Case Concerning The Barcelona Traction, ICJ 1970)

NOTE: Such obligations derive, for example, in contemporary international law, from the outlawing of acts
of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the
human person, including protection from slavery and racial discrimination. Some of the corresponding
rights of protection have entered into the body of general international law others are conferred by
international instruments of universal or quasiuniversal character. (Romulo v. Vinuya, G.R. No. 162230, April
29, 2010)
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

Examples of obligations erga omnes 1. Outlawing of acts of aggression; 2. Outlawing of genocide; 3. Basic
human rights; and, 4. Protection from slavery and racial discrimination.

b. Jus Cogens - Literally means “compelling law.” 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. (Vienna
Convention on the Law of Treaties, Art. 53)

What are Elements of Jus Cogens? (ADS) (Vienna Convention on the Law of Treaties, art.53)

1. A norm Accepted and recognized by the international community of states as a whole.

2. No Derogation is permitted.
3. It can only be modified by a Subsequent norm having the same character

What is the status of a later treaty which is contrary to jus cogens?

A treaty is void, if at the time of its conclusion, it conflicts with a peremptory norm of general
international law or jus cogens. (Vienna Convention on the Law of Treaties, art. 53)

If a new peremptory norm of general international law emerges, any existing treaty that is in
conflict with that norm becomes void and terminates. (Vienna Convention on the Law of Treaties,
art. 64). (Jus cogens > Treaty)

Examples or norms with jus cogens in character

1. Laws on genocide;
2. Principle of self-determination;
3. Principle of racial non-discrimination;
4. Crimes against humanity;
5. Prohibition against slavery and slave trade;
6. Piracy; and
7. Torture.

Distinguish Jus Cogens from Erga Omnes Obligation

1. All jus cogens rules create erga omnes obligations while only some rules creating erga omnes obligations
are rules of jus cogens;

2. With regard to jus cogens obligations the emphasis is on their recognition by the international community
‘as a whole,’ whilst with regard to obligations erga omnes the emphasis is on their nature;

3. The legal consequences of violations or rules creating erga omnes obligations differ from those of breach
of the rules of jus cogens in that in addition to the consequences deriving from a breach of erga omnes
obligations further consequences, specified in Art. 53 of the Vienna Convention on the Law of Treaties
(VCLT), follow from violations of the rules of jus cogens.

c. Ex Aequo et Bono - The concept of ex aequo et bono literally means “according to the right and good”
or “from equity and conscience.” A judgment based on considerations of fairness, not on considerations
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

of existing law, that is, to simply decide the case based upon a balancing of the equities. (Brownlie,
2003)

Under the ICJ Statute, the International Court of Justice is given the authority to decide a case ex
aequo et bono (according to what is fair and good)despite the existence of law provided that the
parties expressly agree. (ICJ Statute, art. 38(2)

d. Res Judicata – Res judicata refers to the rule that a final judgment or decree on the merits by a court
of competent jurisdiction is conclusive of the rights of the parties or their privies in all later suits on all
points and matters determined in the former suit.
e. Rebus Sic Stantibus – It is translated as “things thus standing.” Legally, it implies that the stipulations
of the contracts can be modified in the event of substantial alterations to the conditions and
circumstances under which they were first agreed upon.
f. Pacta Sunt Servanda – meaning “agreements must be kept.” This lexicon implies that the agreements,
even when conditions have changed, must be fulfilled.
g. Jus Gentium (Law of Nations) – (Latin: “law of nations”), in legal theory, that law which natural reason
establishes for all men, as distinguished from jus civile, or the civil law peculiar to one state or people.
h. Jus Inter Gentes – is the body of treaties, U.N. conventions, and other international agreements.
Originally a Roman law concept, it later became a major part of public international law. The other
major part is jus gentium, the Law of Nations. Jus inter gentes, literally, means "law between the
peoples".
i. Opinio Juris Necessitates – The principle of International law where states believe or accept that a practice exists
and must be followed because of a rule of Law requiring it, to the extent that it becomes part of the body of norms
known as international Customary Law.
j. Stare Decisis – Stare decisis means “to stand by things decided” in Latin. When a court faces a legal
argument, if a previous court has ruled on the same or a closely related issue, then the court will make
its decision in alignment with the previous court's decision.
k. Par in parem non-habet imperium; - all states are sovereign equals - an equal state cannot assume
jurisdiction over another equal state
l. State Immunity from Suit; - a state (and its agents acting within their official capacity) cannot be sued
without its consent
m. Right of states to self-defense; and
n. Right to self-determination of people.

C. Functions of International Law

1) To maintain International peace and Security

2) To achieve international co-operation in solving international problems of an economic, social, cultural,
and humanitarian character.
3) To settle international disputes by peaceful means
4) To refrain from threat or use of force by a state against the territorial integrity or political independence of
any State
5) To provide a right of self-determination to peoples and
6) To provide fundamental freedom and human rights.
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

D. Figures in International Law

1. Hugo Grotius - Grotius set out to build a general theory of law (jurisprudentia) that would constrain and
govern war between many independent powers, including nations, in order to achieve his practical goal of
minimizing bloodshed in wars. Grotius’ legal masterpiece, De Jure Belli ac Pacis, and it was heavily affected
by the terrible, violent political fights that had erupted in his own nation and throughout Europe,
particularly the Thirty Years’ War, which had erupted in 1618.

Grotius placed natural law at the center of his jurisprudentia, following Roman law and the Stoics’ work. He
claimed that law derived from man’s intrinsic nature would be valid to some extent. He made this bold
claim because he believed that natural law—the most crucial weapon for preventing and regulating
conflicts in Europe—must be independent of religion and apply to everyone, regardless of their religious
views. He knew, however, that secular law alone would not be sufficient to restrict and regulate war. As a
result, he reinstated several Christian themes into his jurisprudential (https://blog.ipleaders.in/father-of-
international-law/).

2. Jeremy Bentham - international law, also called public international law or law of nations, the body of legal
rules, norms, and standards that apply between sovereign states and other entities that are legally
recognized as international actors. The term was coined by the English philosopher Jeremy
Bentham (1748–1832).

Bentham’s philosophical foundations are based on a calculative view of human nature. Human beings and
by extension states are rational calculators who aimed to maximize the quantum of happiness. This
happiness is a function of the balance between that which man is governed in his nature by the twin masters
of pleasure and pain.

Bentham believed in the need of a positive code of international law to replace the idea of the “law of
nations.” At the heart of this codification is a belief-system. Bentham assumed that if people could only be
made to understand the rules, and as error was removed from perception, universal rules could then be
drafted and followed. Bentham thought that the same principle could be applied to the law on a global
scale. Bentham perceived the inadequacies of existing codes of law as they related to the international
realm and advanced his critique of the idea of the “law of nations,” which led him to embrace a distinctly
different view of “international law” (Kenny, 2015).

3. Philip Jessup - “Transnational law,” in Jessup's definition, includes all laws. The law that “regulates actions
or events that transcend national frontiers” obviously includes a good deal of domestic law—from the law
of contracts to antitrust law. It also includes domestic rules for mediating among national systems, that is,
the rules of conflicts or of “private international law” narrowly defined. Finally, it includes rules of “public
international law,” found in treaties and in customary international law, that may limit the ways in which
national governments may regulate or that may treat directly some topics usually governed by domestic
law (A Basic intro to Transnational Law, pdf).

E. Theories of International Law (Mont, 2020)

1. Naturalist theory – the 17th and 18th-century studies of international law were dominated by the naturalist
perspective which holds that aside from natural law, there is no other foundation of natural law. They
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

adhere to the idea that the validity of international law is bounded by the will of God and that subjects were
not only bounded by Divine law but also by the law of nature established by God. They assume that there
is a system of law emanating from God, reason, or morals. (Do you think this can hold water today?)
2. Positivist Theory – It is based on the following: 1) The state is a metaphysical reality, having value or
significance of its own; 2) It has a will of its own, and 3) State-will has complete sovereignty and authority.
According to this theory, the development of international law is based on treaties and conventions not on
the law of nature, reason, or morals. It further teaches that the law of nations (Jus gentium) is the aggregate
of positive rules by which states have consented to be bound exclusive of any concepts of natural law. For
the positivists, nothing can be called law among states to which they had not consented. According to this
theory, the will of the state is absolutely sovereign, and that it is the source of the validity of all laws. Thus,
only those principles may be deemed as laws that have been adapted with the consent of the states.
3. Eclectic or Grotian – It is an attempt to harmonize the extreme positions of naturalist and positivist views
of international law. Despite being eclectic, proponents are neither more or less naturalists or more or less
positivists. They accept the simultaneous existence of the two-tier source of international law, natural law
and positive or consent law. Positive law then is not the sole basis of international law but may also be from
the laws of nature.

F. RELATIONSHIP OF INTERNATIONAL LAW AND PHILIPPINE DOMESTIC LAW

What is the difference between international law and domestic law?

INTERNATIONAL LAW DOMESTIC LAW

Scope
The conduct of States and international organizations, Apply to a single country or nation, within a
their relations with each other, and, in certain determined territory and its inhabitants.
circumstances, their relations with persons, natural or
juridical. [American Third Restatement]
How Made
Through consent, is adopted by States as a common rule Issued by a political superior for observance.
of action.
Relations
Regulated Regulates relations of States and other Regulates relations of individuals among
international persons. (Bernas, Public International Law, themselves or with their own States.
2009) (Bernas, Public International Law, 2009)
Sources
Derived principally from treaties, international custom Consists mainly of enactments from the
and general principles of law. (ICJ Statute, art.38(1)) lawmaking authority of each State.
Settlement of Disputes
By means of State-to-State transactions By means of local administrative and judicial
processes.
Responsibility
Collective responsibility because it attaches directly to Breach of domestic law entails individual
the State and not to its nationals. responsibility
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

What are the theoretical approaches to the relationship between international law and national law?

1. Monism – there is no substantial distinction between international law and municipal law. Under this theory,
international law and domestic law belong to only one system of law. Monists have a unitary concept of law
and see all laws (both international and municipal law) as an integral part of the SAME SYSTEM. If a conflict
exists between international law and municipal law, international law must prevail.

a. Theory 1: Municipal law subsumes and is superior to international law.

b. Theory 2: International law is superior to domestic law.

2. Dualism – International law and national law are essentially different from each other as to source (i.e.,
municipal law is a product of local custom or legislation; whereas sources of international law are treaties and
customs grown among states.); as regards the relations they regulate (i.e., municipal law regulated relations
between individual persons under the state; whereas international law regulates relations between states); and
lastly, as to substance (i.e. municipal law is a law of the sovereign over individuals whereas international law is
a law between sovereign states). (Bernas, Public International Law, 2009).

For the dualists, when international law and municipal law conflict, municipal law must prevail. (Bernas, Public
International Law, 2009) Under dualism, no conflict can ever arise between international and municipal law,
because the two systems are mutually exclusive. If International law is applied within a state, it is only because
it has been expressly incorporated by municipal law. The Philippines is a dualist state.

What are the theories on the manner of adopting international law as part of the law of the State?

1. Doctrine of Incorporation - A State is, by reason of its membership in the family of nations, bound by the
generally accepted principles of international law, the same being considered as part of its own laws. The
doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with
situations in which there appears to be a conflict between a rule of international law and the provisions of
the Constitution or statute of the local state.

2. Doctrine of Transformation – This is based on a strict dualist approach. Since the two systems are distinct
and operate separately, for international law to become part of domestic law it must be expressly and
specifically transformed into domestic law through the appropriate constitutional machinery such as an act
of Congress of Parliament. (Bernas, Public International Law, 2009)

It provides that the generally accepted rules of international law are not per se binding upon the state but
must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal
law. [Cruz, International Law (2003 Ed.), p. 6] NOTE: This doctrine runs counter Art. II, Sec. 2 of the 1987
Constitution, which states that “The Philippines xxx adopts the generally accepted principles of
international laws.
Principle of Auto-Limitation - It is the doctrine where a state adheres to principles of international law as a
limitation/restriction to the exercise of its sovereignty.

NOTE: While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic
level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

or impliedly, as a member of the family of nations. By the doctrine of incorporation, the country is bound
by generally accepted principles of international law, which are considered to be automatically part of our
own laws. Thus, the sovereignty of a state is not absolute on an international level. Corollary, a state has
agreed to surrender some of its sovereign rights in exchange for greater benefits that it may derive by being
a member of a family of nations or by virtue of treaty stipulations.

Correlation of Reciprocity and the Principle of Auto-Limitation

When the Philippines enters into treaties, necessarily, these international agreements may contain
limitations on Philippine sovereignty. The consideration in this partial surrender of sovereignty is the
reciprocal commitment of other contracting States to granting the same privilege and immunities to the
Philippines. NOTE: For example, this kind of reciprocity in relation to the principle of auto-limitation
characterizes the Philippine commitments under WTO-GATT. (Ibid.)

How to resolve the conflict between international and municipal law?

A. International Rule or Conflict Resolved by International Tribunal – Before an international tribunal, a state
may not plead its own law as an excuse for failure to comply with international law. A State, which has
contracted valid international obligations, must modify its laws to ensure fulfillment of its obligations under the
treaty unless the constitutional violation is manifest and concerns a rule of the internal law of fundamental
importance. National laws must yield to the laws of nations because international law provides the standards
by which the legality of State conduct is to be determined.

B. Municipal Rule of Conflict Resolved by Local Court – When the conflict comes before a domestic court,
domestic courts are bound to apply domestic law. Rules of international law are given a standing equal, not
superior, to national legislative enactments. Should a conflict arise between an international agreement and
the Constitution, the treaty would not be valid and operative as domestic law. It does not, however, lose its
character as international law. (Bernas, Public International Law, 2009).

How to resolve the conflict between a state’s constitution and international law?

When the constitutional violation is manifest and concerns a rule of the internal law of fundamental
importance, the treaty can be ignored domestically but only at the risk of international repercussions before an
international court. 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. (Bernas, Public International
Law, 2009).

How to resolve the conflict between the treaty and domestic legislation?

When the two instruments relate to the same subject, try to give effect to both; if inconsistent, later in date
will control, provided that the treaty stipulation is self-executing. But this rule only applies in the domestic
sphere. A treaty, even if contrary to a later statute, is binding in international law.
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

G. SOURCES OF OBLIGATIONS IN INTERNATIONAL LAW

1. ARTICLE 38. INTERNATIONAL COURT OF JUSTICE STATUTE

What are the sources of international law according to Article 38(1) of the ICJ Statute?

1. international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
2. international custom, as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists
of the various nations, as subsidiary means for the determination of rules of law. (ICJ Statute, art.38(1))

What are the primary sources? (TCG)

1. Treaties: Conventional International Law; International conventions, whether general or particular,
establishing rules expressly recognized by the contracting states.
2. Customary International Law: International custom, as evidence of a general practice accepted as law;
3. General Principles of Law: General principles of law recognized by civilized nations. [ICJ Statute, art.38(1)(a)-
(c)] This is not an independent source of international law.

What are the subsidiary sources? (JT)

1. Judicial decisions; and
2. Teachings of the most highly qualified publicists of the various nations. [ICJ Statute, art. 38(1)(d)]

While the primary sources create law, the subsidiary sources constitute evidence of what the law is.

Treaties: What is the definition of treaty?

A treaty is 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 and whatever its particular
designation. (VCLT, art. 2(1)(a)).

What are the requisites of a treaty?

1. Must be concluded between States

2. In written form
3. Governed by International Law
4. Must be embodied in a single instrument or in two or more related instruments

What is the basis of a treaty obligation? - Treaty obligation is based on consent. No state may be bound by a treaty
obligation unless it has so consented. (VCLT, art. 34).
What is pacta sunt servanda? - Under the principle of pacta sunt servanda, a state party to a treaty is bound to
comply with the obligations it assumed under such treaty in good faith. (VCLT, art. 26)

What is pacta tertiis nec nocent nec prosunt? - A treaty binds the parties and only the parties; it does not create
obligations for a third state. (VCLT, art. 34)
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

Custom: What is the definition of custom?

General and consistent practice of States followed by them from a sense of legal obligation. (Restatement (Third)
of Foreign Relations Law of the United States)

What are the elements of International Custom?

1. State Practice (DUG) – A consistent and uniform external conduct of States. Generally, both what States say and
what they do are considered state practice.

a. Duration of practice
b. Uniformity, consistency of practice
c. Generality (majority of specially affected States) (Bernas, Public InternationalLaw, 2009).

2. Opinio Juris Sive Necessitatis (Opinio Juris) – As an element in the formation of customary norm in international
law, it is required that States, in their conduct amounting to general practice, must act out a sense of legal duty
and not only by the motivation of courtesy, convenience or tradition. Not only must acts amount to a settled
practice, but they must also be such or be carried out in such a way, as to be evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. (International Court of Justice in
the North Sea Continental Shelf Cases, cited in Mijares v. Ranada, G.R. No. 139325, April12, 2005)

Unlike treaties, customary norms are legally binding upon all States regardless of whether they consent,
subject to the persistent objector rule. No particular length of time is required for the formation of customary
norms so long as the existence of the two elements of custom is manifest (North Sea Continental Shelf Cases
(ICJ) February 20, 1969). The number of parties, the explicit acceptance of rules of law, and, in some cases, the
declaratory nature of the provisions produce a strong lawcreating an effect at least as great as the general
practice considered sufficient to support a customary rule (BROWNLIE).

A customary rule requires the presence of two elements:

1. An objective element (general practice) consisting of a relatively uniform and constant State practice;
and,

2. A psychological element consisting of 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 necessitates.

Binding effect of international customs (Customary International Law)

General Rule: All States are bound by international customs, including Dissenting States. Exeption:
Dissenting States are not bound by international customs if they had consistently objected to it while the project
was merely in the process of formation (Persistent Objector Rule). Dissent, however protects only the dissenter
and does not apply to other States. A State joining the international law system for the first time after a practice
has become customary law is bound by such practice.

What is the principle of persistent objector?

When a State has continuously objected to a new customary norm at the time when it is yet in the
process of formation, by such persistent objection the norm will not be applicable as against that state.
(MAGALLONA)
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

What are the customary norms identified by the Supreme Court of the Philippines?

1. Rules and principles of land warfare and of humanitarian law under the Hague Convention and the Geneva
Convention (Kuroda v. Jalandoni, G.R. No. L-2662, March 26, 1949)

2. Pacta sunt servanda (La Chemise Lacoste v. Fernandez, G.R. Nos. L63796- 97, May 2,1984)

3. Human rights as defined under the Universal Declaration of Human Rights (Reyes v. Bagatsing, G.R. No. L-65366,
November 9, 1983)

4. The Principle of the Sovereign Equality of States (Sanders v. Veridiano, G.R. No.L-46930, June 10, 1988)

5. The principle in diplomatic law that the receiving state has the special duty to protect the premises of the
diplomatic mission of the sending state (Reyes v.Bagatsing, G.R. No. L-65366, November 9,1983)

6. The right of a citizen to return to his own country (Marcos v. Manglapus, G.R. No.88211, September 15, 1989)

7. The principle that “a foreign army allowed to march through friendly country or to be stationed in it, by
permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the place” (Raquiza
v. Bradford, G.R. No. L-44, September 13,1945)

8. The principle that judicial acts, not of a political complexion, of a de facto government established by the military
occupant in an enemy territory, are validunder international law. It is legal truism in political and international law
that all acts and proceedings of the legislative, executive and judicial departments of a de facto government are
good and valid (Montebon v. Director of Prisons, G.R. No. L-1352, April 30, 1947)

9. The principle that private property seized and used by the enemy in times of war under circumstances not
constituting valid requisition does not become enemy property and its private ownership is retained, the enemy
having acquired onlyits temporary use (Noceda v. Escobar, G.R. No. L-2939, August 29, 1950).

10. The principle that a State has the right to protect itself and its revenues, a right not limited to its own territory
but extending to the high seas (Asaali v. Commissioner, G.R. No. L-24170, December 16, 1968).

General Principles of Law

What is the definition of general principles of law?

Principles based on natural justice common to most national systems of law. These refer to those general principles
in municipal law (particularly those of private law) that may be appropriated to apply to the relations of states
[OPPENHEIM]. (e.g., good faith, estoppel, exhaustion of local remedies, unjust enrichment).

1. The ban on enforced disappearance is a generally accepted principle of international law that is considered part
of the law of the land (Razon v. Tagitis, G.R. No. 182498, December 3, 2009). Note, however, that RA 10353 (An Act
Defining and Penalizing Enforced or Involuntary Disappearance) was passed on December 21, 2012.

2. The Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation
and gender Identity) has not yet evinced an obligatory norm in the Philippines. There are declarations and
obligations outlined in said Principles that are not reflective of the current state of international law and do not find
a basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International
Court of Justice. (Ang Ladlad LGBT Party v. COMELEC, G.R. No. 190582, April 8, 2010).
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

3. Rep. Act No. 9851 defines and provides for the penalties for crimes against humanity, serious violations of IHL,
genocide, and other crimes against humanity. This law provides for the non-prescription of the prosecution of and
execution of sentences imposed with regard to the crimes defined in the Act. It also provides for the jurisdiction of
the Regional Trial Court over the crimes defined in the Act. These crimes are, therefore, separate from or
independent from the crime of rebellion even if they occur on the occasion of or are argued to be connected with
the armed uprisings. (Ocampo v. Abando, Leonen’s Concurring Opinion, G.R. No. 176830, 2014).

Hard law – This means binding laws; to constitute law, a rule, instrument or decision must be authoritative
and prescriptive. In international law, hard law includes treaties or international agreements, as well as customary
laws. These instruments result in legally enforceable commitments for countries (states) and other international
subjects.

Soft law - These are non-binding rules of international law. Soft law is of relevance and importance to the
development of international law because it:

1. has the potential of law-making, i.e. it may be a starting point for later ‘hardening’ of nonbinding
provisions (e.g. UNGA resolutions may be translated into binding treaties);
2. may provide evidence of an existing customary rule;
3. may be formative of the opinio juris or of State practice that creates a new customary rule;
4. may be helpful as a means of a purposive interpretation of international law;
5. may be incorporated within binding treaties but in provisions which the parties do not intend to be
binding;
6. may in other ways assist in the development and application of general international law.

NOTE: The importance of soft law is emphasized by the fact that not only States but also non-State actors participate
in the international law-making process through the creation of soft law. Nevertheless, soft law is made up of rules
lacking binding force, and the general view is that it should not be considered as an independent, formal source of
international law despite the fact that it may produce significant legal effects.

ILLUSTRATION:

FACTS: Ang Ladlad is incorporated in 2003, and first applied for registration with the COMELEC in 2006. The
application for accreditation was denied on the ground that the organization had no substantial membership base.
On August 17, 2009, Ang Ladlad again filed a Petition for registration with the COMELEC. On November 11, 2009,
after admitting the petitioner’s evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds.
In this Petition before the Court, Ang Ladlad invokes that the Yogyakarta Principles - a set of international principles
relating to sexual orientation and gender identity, intended to address documented evidence of abuse of rights of
lesbian, gay, bisexual, and transgender (LGBT) individuals, reflects binding principles of international law.

ISSUE: Can the Court consider these principles as binding under international law?

HELD/Decision/Ratio: NO, the Court cannot rely on the application of the Yogyakarta Principle. There are
declarations and obligations outlined in said Principles which are not reflective of the current state of international
law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute
of the International Court of Justice. Petitioner also has not undertaken any objective and rigorous analysis of these
alleged principles of international law to ascertain their true status. International law is full of principles that
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

promote international cooperation, harmony, and respect for human rights, most of which amount to no more than
well-meaning desires, without the support of either State practice or opinio juris. These principles are at best - de
lege ferenda (being on the basis of new law)- and do not constitute binding obligations on the Philippines. Much
of contemporary international law is characterized by the soft law nomenclature.

What are the secondary sources?

1. Judicial decisions
2. Teachings of the Most Highly Qualified Publicists (ICJ statute, art. 38).

Judicial decisions

What are judicial decisions?

A subsidiary means for the determination of rules of law that are acceptable so long as they correctly interpret and
apply international law. Decisions of national courts, when applying international law, are acceptable.

Does stare decisis apply? - The ICJ Statute directs the Court to apply judicial decisions as subsidiary means for the
determination of the rules of law, but this is made subject to Article 59 of the same statute, which states that “the
decisions of the court have no binding force except between the parties and in respect of that particular case.”
(Bernas, Public International Law, 2009).

Teachings of the Most Highly Qualified Publicists

What is a “publicist”? - The word “publicist” means “learned writer.” Learned writings, like judicial decisions, can
be evidence of customary law, and can also play a subsidiary role in developing new rules of law. “Publicists” are
institutions which write on international law. (Bernas, Public International Law, 2009).

What are “Highly-qualified publicists?” - Highly-qualified publicists are writers whose main value depends on the
extent to which their books and articles are cited as works of scholarship (i.e based on thorough research into what
the law is said to be (lex lata) rather than comparing the views of other writers as to what they think the law out to
be (lex ferenda).

A highly qualified publicist is a scholar of public international law and the term usually refers to legal scholars or
“academic writers.” (Bayan Muna v. Romulo, G.R. No. 159618, February 1, 2011).

What are the requisites for a “Highly Qualified Publicist”?

1. Fair and impartial representation of law.
2. Acknowledged authority in the field.

Examples: Grotius, Lauterpacht, Oppenheim, Crawford, Aust, Shaw, and Brownlie. Authoritative
sources within this list include the writings of former Judges, the secondary opinions of Judges who are not in
the majority of their cases, and documents created by the International Law Commission. Within the context
of a specific field, there are additional scholars who would be regarded as “highly qualified publicists.”
Damayon, S.
Lecture Notes in POLSCI 143: International Law (PART 1)
First Semester 2022-2023

2.EFFECT OF UNITED NATIONS DECLARATIONS, SECURITY COUNCIL RESOLUTIONS, GENERAL ASSEMBLY

RESOLUTIONS

What is the effect of United Nations Declarations and Resolutions?

Declarations of legal principles and Resolutions by the United Nations are generally considered merely
recommendatory Resolutions can also bea reflection of what has become customary law (Bernas, Public
International Law, 2009). They are considered recommendatory except on matters involving membership. What is
opinio juris communis? When the UN Declarations and Resolutions are supported by all the states, they are an
expression of opinion juris communis. (Bernas, Public International Law, 2009).

Are UN Security Council Resolutions binding? YES. The Members of the United Nations agree to accept and carry
out the decisions of the SecurityCouncil in accordance with the present Charter. (UN Charter, art. 25.). It has been
contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the
Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in
regard to enforcement action but applies to “the decisions of the Security Council” adopted in accordance with the
Charter. (Advisory Opinion on Namibia, June 21, 1971) If Article 25 had reference solely to decisions of the Security
Council concerning enforcement action under Articles 41 and 42 of the Charter that is to say if it were only such
decisions which had binding effect then Article 25 would be superfluous…..” (Advisory Opinion on Namibia, June
21, 1971)

What is the effect of General Assembly Resolutions? - UN General Assembly resolutions are generally just
recommendations. However, such resolutions may be an evidence of state practice that is relevant in the
development of custom. (See Nicaragua Case (ICJ, June 27, 1986).

3. EFFECT OF ACTIONS OF ORGANS OF INTERNATIONAL ORGANIZATIONS CREATED BY TREATY

What is the effect of actions of organs of international organizations created by treaty?

Although international organizations have personality in international law, their powers and privileges are by no
means like those of states. Their powers and privileges are limited by the constituent instrument that created them.
(Bernas,Public International Law, 2009). International organizations are governed by the “principle of specialty,”
that is to say, they are invested by the States which create them with powers, the limits of which are a function of
the common interests whose promotion those States entrust to them. (Bernas citing Advisory Opinion on the Use
of Nuclear Weapons, July 8, 1996)

Notable examples include the United Nations (UN), Organization for Security and Co-operation in Europe (OSCE),
Bank for International Settlements (BIS), Council of Europe (COE), International Labour Organization (ILO) and
International Criminal Police Organization (INTERPOL)

H. SUBJECTS OF INTERNATIONAL LAW