POS 325 International law Exception: Unless otherwise limited by pre-existing

agreements or self-imposed inhibitions. (E.g. a neutral

SOURCES OF INTERNATIONAL LAW
state cannot enter into an offensive or defensive
a. International conventions, whether general or alliance with another state especially with a belligerent
particular, establishing rules expressly recognized by state)
the contesting states;
b. International custom, as evidence of a general
AUTHORIZED ORGANS OR
practice accepted as law;
REPRESENTATIVES TO A TREATY
c. The general principles of law recognized by
As to who may represent a state or entity to enter into a
civilized nations;
treaty shall be determined by the municipal law, or the
d. Judicial decisions and the teachings of the most constitution of each state. For entities, it shall be based
highly qualified publicists of the various nations, as on their respective charters or organic laws.
subsidiary means for the determination of rules of law.
By default, heads of state, have the authority to
(Art. 38, Statute of the International Court of Justice
conclude a treaty as representatives of their respective
(ICJ)
countries. (Art. 7, par. 2 (a) of the Vienna Convention
on the Law of Treaties)

TREATIES AND INTERNATIONAL In the Philippines, it is the President as the chief

CONVENTIONS diplomat and foreign policy-maker who has the
authority to enter into treaties. The President is
A treaty is a formal agreement, usually but not responsible for designing and implementing the
necessarily in writing, entered into by states or entities foreign policy of the country. He acts as the
possessing treaty-making capacity for the purpose of spokesperson of the nation in the field of foreign
regulating their mutual relations under the law on relations.
nations.
NOTE: “No treaty or international agreement shall be
Other terms for a treaty include, agreements, valid and effective unless concurred in by at least two-
conventions, covenants, protocols, pacts, etc. thirds of all the Members of the Senate.” (Sec. 21,
REQUISITES FOR A TREATY OR Article VII of the 1987 Philippine Constitution)
CONVENTION TO BE VALID
1. Entered into by parties having a treaty-making Are executive agreements, treaties?
capacity;
Generally, treaties need senate concurrence since these
2. Through their authorized organs and/or involve basic political issues, changes in national
representatives; policy and are permanent international agreements.
3. Without the attendance of duress, fraud and/or Executive agreements are just adjustments of details in
mistake; carrying out well established national policies and are
4. Based on a lawful subject; merely temporary arrangements. Executive agreements
need no concurrence from the senate for its validity
5. In accordance with their respective constitutional and effectivity.
processes;
Case: Rene A.V. Saguisag, et al., v. Executive
Secretary Paquito N. Ochoa, Jr., et al. (G.R. No.
212426, 12 January 2016)
TREATY-MAKING CAPACITY
Treaty-making is one of the oldest and most
characteristic exercises of a state’s sovereignty and PROCESS OF TREATY MAKING
independence.
1. Negotiation conducted by parties to reach an
General rule: All sovereign states and entities under agreement on its terms
international law have full treaty- making capacity.
Every state possesses the capacity to conclude treaties
(Art. 6 of the Vienna Convention on the Law of
Treaties)
2. Signature or the signing of the instrument agreed
upon by the parties. The process of signing is a means
of authenticating the instrument and symbolizes good
faith of the contracting parties.
3. Ratification or the act by which the provisions of a
treaty are formally confirmed and approved by the
state
4. Exchange of instrument or the process of sending
back copies of the ratified treaty to other party
5. Registration with the United Nations for
enforceability. In case of non-registration a treaty
cannot be enforced with any organ of the united
nations.
ACCESSION
General Rule: A treaty is binding only on the parties
that have concluded it, however an exception to this
rule is the process of accession.
Accession is when a state joins or ratifies an existing
treaty which it is not originally a party of. Through
accession, the state shall be bound by the terms and
conditions of the treaty though they may not have
participated in its negotiation.
State can accede to a treaty only if invited or permitted
to do so by the contracting parties. Such invitation or
permission is usually given in the accession clause of
the treaty itself.
OTHER INSTANCES WHEN A THIRD-PARTY
STATE MAY BE BOUND BY A TREATY
 When a treaty or convention is merely a formal
expression of customary international
law. Under such circumstances, the treaty shall be
is enforceable on all civilized states
because of their membership in the family of
nations.
 Article 2 of the United Nations Charter provides
that the Organization shall ensure that
non-member states “act in accordance with the
principles of the Charter so far as may
be necessary for the maintenance of international
peace and security”
 When the treaty itself expressly extend its benefits
to non-signatories thereof.
PACTA SUNT SERVANDA (Agreements must be
kept or complied with)
Treaties must be observed in good faith despite the
hardship on the contracting state, such as conflicts
between the treaty and its constitution or prejudice to
the national interest as a result of the operation of the
treaty. This is based on principle of good faith.
REBUS SIC STANTIBUS (Things standing thus)
An event or circumstance which would justify non-
performance of a treaty obligation if the
conditions in relation to which the parties contracted
have changed so materially and so unexpectedly as to
create a situation in which the exaction of performance
would be unreasonable.
E.g. State A and B entered into a mutual exploration
agreement over a particular area within the territorial
sea of State B. If that territory is later on lost, then the
parties may invoke the principle of rebus sic stantibus
for non-compliance with its obligations under the
treaty considering that the subject of the treaty is not
any more existing.
INSTANCES WHEN A TREATY BE
TERMINATED
 Expiration of term of the treaty;
 Accomplishment of purpose;
 Mutual consent of the parties;
 Extinction of one of the parties in case of bi-partite
treaties;
 Rebus Sic Stantibus;
 Outbreak of war, armed conflict, or hostilities
between the parties;
 Declaration of a treaty as void.
INTERNATIONAL CUSTOMS
 Customs or customary international law means a
general and consistent practice of states followed
by them from a sense of legal obligation. These are
set of unwritten rules that have developed overtime
as a result of repeated acts by states.
 International customs are long and established way
of doing things by states under the conviction that
it is obligatory or it is right and good.
 Based on the foregoing, there are two (2) elements
of customary international law: state practice and
opinio juris.
STATE PRACTICE
 This is the actual or material element of a custom
of international law. The initial factor for
determining the existence of custom in
international law is the actual behavior of states.
State practice can be determined by several factors
 such as duration, consistency, and generality of the
practice among states;
 Under Art. 38 of the Statute of the ICJ, a custom
must be “accepted as law” between nations for it to
be considered as part of international law.
OPINIO JURIS SIVE NECESSITATIS
 Or simply “Opinio Juris” (An opinion of law or
necessity) suggests that there must be a sense of
legal obligation or belief to follow a rule because it
is generally acceptable as right and good. This may
be seen in the pattern of voting of members of the
United Nations General
Assembly (UN GA) to certain subjects of treaties.
GENERAL PRINCIPLES OF LAW
 General principles of law are legal principles
which are recognized and common to the different
legal systems of nations. These has reference not
only to principles of international law but also to
principles of municipal law common to the
different legal systems of nations.
 Sometimes, most of these principles of law have
either become part of customary international law,
have been incorporated as part of treaties, or
became jus cogens norms.
 Enduring examples of general principles of law,
typically followed in most jurisdictions are the
principles of good faith, estoppel, and equity.
ESTOPPEL
 A rule of international law that bars a state from
denying or asserting a claim which is against its
previous acts or representations when these acts or
representations have induced
reliance or detriment on the part of other states.
 The purpose is to prevent a state from benefitting
from its inconsistent attitudes and stands over a
particular issue. (E.g. State recognition;
Philippines’ claim over Sabah and other
disputed territories)
JUDICIAL DECISIONS
 Article 38 of the Statute of the ICJ, directs the
Court (ICJ) to apply judicial decisions as
subsidiary means for the determination of the
rules of law.
THE INTERNATIONAL COURT OF
JUSTICE
 The International Court of Justice (ICJ) is
established by the Charter of the United Nations as
the principal judicial organ of the United Nations.
 The ICJ’s role is to settle, in accordance with
international law, legal disputes submitted to it
by States and to give advisory opinions on legal
questions referred to it by authorized United
Nations organs and specialized agencies.
 The ICJ was established in June 1945, and it is
currently seated at the Peace Palace, The Hague,
Netherlands.
THE PRINCIPLE OF STARE DECISIS AND ITS
APPLICATION TO JUDICIAL DECISIONS
OF THE ICJ IN INTERNATIONAL LAW
 Can a decision of the ICJ be applied to a case with
similar facts and issues but involving different
parties?
 No. Article 59 states that decisions of the Court
(ICJ) have no binding force except between the
parties and in respect of that particular case.
 Such decisions do not adhere to the principle of
“stare decisis non quieta et movere” or simply,
“stare decisis” which means “follow past
precedents and do not disturb what has been
settled”. This principle obligates courts to follow
previous rulings when making a decisions on a
case involving similar facts and issues.
Is the Court (ICJ) obliged to strictly apply
international laws in deciding all disputes brought
before it?
 No. Article 38 (2) of the Statute of the ICJ states
that “this provision shall not prejudice the power
of the Court to decide a case ex aequo et bono, if
the parties agree thereto.”
 Power of Court to decide a case “Ex Aequo Et
Bono”
 (According to what is right and good)
 This is the Courts’ power to decide on a dispute
according to what is fair and just given the
particular circumstances, rather than strictly
according to the rule of law.
 This type of consideration, primarily utilized in
international law, typically requires the
consent of all parties.
TEACHINGS OF THE MOST HIGHLY
QUALIFIED PUBLICISTS OF THE VARIOUS
NATIONS
Requisites for teachings to be considered as a source of
international law:
1. The publicist must be highly qualified or generally
acknowledged as an authority in the particular field
of international law; and
2. The publication or writing must be a fair, accurate,
and unbiased representation or interpretation of the
principles of international law

It should be emphasized that some of these institutions

or publicists of international law are generally
government sponsored. Hence, they bear within
themselves a potential for national bias.

SOME OF THE MOST SIGNIFICANT OR

“HIGHLY QUALIFIED” PUBLICISTS
 The International Law Commission, an organ of
the U.N. pursuant to its mandate under article 13
(1) (a) of the Charter of the United Nations to
“initiate studies and make recommendations for
the purpose of ... encouraging the progressive
development of international law and its
codification”.
 The International Law Association (ILA);
 Publications of the Hague Academy of
International Law.