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PUBLIC INTERNATIONAL LAW REVIEWER

PUBLIC INTERNATIONAL LAW
Jamil B. Asum
If a custom develops after a treaty, the rule is not clear.
 LOGICAL RULE: Later custom as an expression of later will should prevail.
 IN PRACTICE: Attempt is made the treaty alive by efforts of reconciling the two.

CASE: Anglo-French Continental Shelf Case (1979)

ISSUE: The applicability of the equidistance principle in the delimitation of the shelves of the United Kingdom
and France.
HELD: Article 6, does not formulate the equidistance principle and “special circumstances” as two separate
rules. The rule there stated in each of the two cases is a single one, a combined equidistance-special
circumstance rule.
Article 6 makes the application of the equidistance principle a matter of treaty obligation for Parties to
the Convention. But the combined character of the equidistance principle-special circumstance rule means that
the obligation to apply equidistance principle is always one qualified by the condition “unless another boundary
line is justified by special circumstances...”
3. GENERAL PRINCIPLES of LAW RECOGNIZED BY CIVILIZED NATIONS
Restatement as “general principles of law recognized by or common to the world’s major
legal systems.” This has reference not to principles of international law but to principles of municipal law
common to the legal system of the world.

CASE: Chorzow Factory Case (Germany vs. Poland) (1928)

FACTS: German Empire had a contract with a company, where the company undertook to establish for the
Reich and forthwith to begin the construction of a nitrate factory at Chorzow, Upper Silesia. Subsequently,
Germany and Poland signed a convention concerning the Upper Silesia of Geneva. A polish was then delegated
with the full powers to take charge of the factory, thus, causing the end of the contract between Germany and
the companies. Germany brought action in behalf of the companies in violation of the Geneva Conventions.
HELD: In virtue of the general principles of International Law, must be added that of compensating loss
sustained as the result of the seizure. The impossibility of restoring the Chorzow factory therefore has no other
effect but that of substituting payment of the value of the undertaking for restitution; it would not be in
conformity with the principles of law or with the wish of the parties to infer from that agreement that the
question must henceforth be dealt with though an expropriation properly so called was involved.

DOCTRINE:
 The reparation of a wrong may consist in an indemnity corresponding to the damages with nationals of
the injured party state have suffered as a result of the act which is contrary to international law.
 Reparation for the taking of property requires compensation. Reparation is due when there is a breach
of an obligation.

CASE: Barcelona Traction, Light and Power Company Case (Belgium vs. Spain) (1970)
FACTS: BTLPC was incorporated in Toronto (Canada) for the purpose of creating and developing an electric
power production and distribution system in Catalonia, Spain. It formed a number of subsidiary companies, of
which some had their registered their offices in Canada and others in Spain. Some years after First World War
Barcelona Traction share a capital came to be very largely held by Belgian nationals. The servicing of the
Barcelona Traction bonds was suspended on account of Spanish civil war. After that war the Spanish exchange
control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of
the sterling bonds. Eventually, the company was declared bankrupt. Belgium filed an application with the ICJ
against Spanish government seeking for reparation of damages claimed to have been caused to the Belgian
national shareholders to the company.
HELD:
 State of the Company can seek redress. International law had to refer to those rules generally
accepted by the municipal legal systems. An injury to the shareholders interests resulting from injury to
the rights of the company was insufficient claim.
 Where it was question of an unlawful act committed against a company representing capital, the
general rule of international law authorized the national state alone to exercise diplomatic protection
for the purpose of seeking redress.
 No rule of international law expressly conferred such a right in the shareholder’s national state.
Exceptions:
a. The case of the company having ceased to exist
b. The case of protecting state of the company lacking capacity to take action.

4.JUDICIAL DECISIONS
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PUBLIC INTERNATIONAL LAW REVIEWER
Judicial decisions are subsidiary means for the determination of the rules of law. However, the
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decisions of the court have no binding force except by parties in a particular case. Hence, such decisions do
not constitute a “stare decisis.”
Despite this, the rulings of the ICJ are not only regarded as highly persuasive in IL circles, they have
also contributed to the formulation of principles that have become IL.
Similarly, arbitral decisions have been instrumental on the formation of IL principles.
5. TEACHINGS OF HIGLY QUALIFIED WRITERS AND PUBLICISTS
ICJ is generally reluctant to refer to writers but they are often taken into consideration.
“PUBLICISTS” are institutions which write on IL. They also play a role. However, they bear the within
themselves a potential for national bias.
EQUITY
CASE: Diversion of Water from Meuse (Netherlands vs. Belgium)
FACTS: Netherlands had complained that certain canals constructed by Belgium were in violation of an
agreement in that the construction would alter the water level and rate flow of the Meuse River. The court
rejected the Netherlands claim and a Belgian counterclaim based on the construction of a lock by the
Netherlands at an earlier time.
HELD: Judge Hudson concurring opinion:
o *It would seem to be an important principle of equity that where two parties have assumed an identical
or reciprocal obligation, one party which engaged in a continuing non-performance of that obligation
should not permitted to take advantage of similar non-performance of that obligation by other party.
The principle finds expression in the so-called maxims of equity which exercised great influence in the
creative period of development of the Anglo-American law.
o *it was justified the use of equity as a source despite not having been expressly authorized to do so by
reasoning that it may included under general principles of law recognized by civilized nations” since in
more than one nation principles of equity have an established place in the legal system.
Definition:
It is an instrument whereby conventional or customary law may be supplemented or modified in order
to achieve justice. It has both a procedural and substantive aspect.
PROCEDURALLY, it means a mandate given to judge to exercise discretion to achieve a determination that is
more equitable and fair.
KINDS of EQUITY
 Intra legem (within the law), that the law is adapted to the facts of the case Opinio juris is a
 Praeter legem (beyond the law), it used to fill in the gaps within the law recognition by a state
 Contra legem (against the law), is a refusal to apply the law which is unjust. of a customary practice
OTHER SUPPLEMENTARY EVIDENCE: as legally binding upon
UN RESOLUTIONS
 Declarations of legal principles and resolutions of the UN are generally considered mere
recommendatory. But if they are supported by all the states, they are an expression of opinio juris
communis.
 Resolutions should have a force of law
 It can also be a reflection of what has become customary law.

SOFT LAW
 Also called as “non-treaty agreements”, these are international agreement not concluded as treaties.
Therefore not covered by the Vienna Convention on the Law of treaties.
 Other sources of soft law are administrative rules which guide the practice of states in relation to
international organizations. These are mostly administrative procedures that are carried out with
varying degrees of consistency and uniformity that may eventually ripen into customary law or become
formalized later on in treaties.

CHAPTER 3. THE LAW ON TREATIES

Generic Term: “International Agreements”
Other names for treaties: CPCCPCM
1. Conventions
2. Pacts
3. Covenants
4. Charters
5. Protocols
6. Concordat
7. Modus Vivendi, etc...
Treaties represent the most deliberate form of commitment through government cooperation with one
another.
Definition:
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PUBLIC INTERNATIONAL LAW REVIEWER
THE VC defines a treaty as “an international agreement concluded between states in written form and
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governed by IL, whether embodied in a single instrument or in two or more related instruments and whatever
its particular designation.
The VC applies to International agreement that satisfy the convention’s definition specifically that they
may be in writing and reflective of intention of the parties to be bound, and governed by IL.
*NO PARTICULAR FORM PRESCRIBED.
*EVEN ORAL AGREEMENT CAN BE BINDING. However, only written agreements that are new come under the
provision of the VC.
CASE: Qatar vs. Bahrain (1994)
FACTS: The parties agree that the exchanges of letters of December 1987 constitute an international
agreement with binding force in their mutual relations. Bahrain, however maintain that the Minutes of
December 25, 1990 were no more than a simple record of negotiations, similar in nature to the Minutes of
Tripartite Committee; that accordingly they did not rank as an international agreement and could not,
therefore serve as a basis for the jurisdiction of the Court.
HELD: Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record of a
meeting, similar to those drawn up within the framework of the Tripartite Committee; they do not merely give
an account of discussions and summarize points of agreements and disagreements. They enumerate the
commitments to which the parties have consented. They thus create rights and obligations in IL for the
parties. They constitute an international agreement.
CASE: Norway vs. Denmark
FACTS: The case involved a dispute between Denmark and Norway over sovereignty in Eastern Greenland. In
the course of negotiations, Denmark had offered certain concessions important for Norway for the purpose of
persuading Norway not to obstruct Danish plans in regard to Greenland. In reply, the Norwegian Minister
accepted the offer: “I told the Danish Minister today that the Norwegian Government would not
make any difficulty in the settlement of this question.”
HELD: The Court found this declaration sufficient to bind the Norwegian Government.

CASE: Australia vs. France, New Zealand vs. France

FACTS: France was a signatory to the Nuclear Test Ban Treaty and thus continued to conduct tests in South
Pacific until 1973. The tests conducted in 1972 and 1973 led to the filing of protests by Australia and New
Zealand. The case, however, was taken off the Court’s list without a decision when France announced by
series of unilateral announcements that it would conduct no further tests after 1973.
HELD: Unilateral declarations can be binding. When it is the intention of the state making the declaration that
it should become bound according to terms, that intention confers on the declaration the character of a legal
undertaking. An undertaking of this kind, if given publicly, and with an intent to be bound, even though
not made within the context of international negotiations, is binding.

Function of Treaties: SSTRSPG

1. Sources of International Law
2. They may serve as the charter of IOs
3. Transfer territory
4. Regulate commercial relations
5. Settle disputes
6. Protect human rights
7. Guarantee investements; etc…

Kinds of Treaties from standpoint of relevance as source of IL:

1. Multilateral treaties are open to all states of the world. They create norms which are the basis for a
general rule of law.
a. Codification treaties
b. Law-making treaties
c. Both
2. Treaties that create collaborative mechanism operate through the organs of the different states for a
shared purpose (e.g. fishing agreements, regulation of allocation of radio frequencies)
a. Universal scope
b. Regional
3. Bilateral treaties/ “contract treaties are mostly in the nature of contractual agreements which create
expectations such as trade agreements of different forms.
*TREATIES ARE GENERALLY BINDING ONLY ON PARTIES. However, the number of contracting parties and
the generality of the acceptance of specific rules can have the effect of creating a universal law.
The Making of Treaties
1. NEGOTIATION
2. ADOPTION OF TEXT (CONSENT OR 2/3 VOTE)
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PUBLIC INTERNATIONAL LAW REVIEWER
3. AUTHENTICATION OF TEXT (SIGNING)
Jamil B. Asum
4. CONSENT TO BE BOUND (E.G. RATIFICATION)
5. EXCHANGE OF DEPOSIT
6. ENTRY INTO FORCE OF TREATIES
NEGOTIATION

In a bilateral treaties, and multilateral treaties among a small number, generally originate from foreign
ministries. Negotiation is done through foreign ministers. Larger multilateral treaties are negotiated in
diplomatic conferences which are run like legislative body.

Power to Negotiate
Article 7. Full Powers
1. A person is considered as representing a state for the purpose of adopting or authenticating the text of
a treaty or for the purpose of expressing the consent of the state to be bound by a treaty if:
a. He produces appropriate full powers
b. It appears from the practice of the states concerned or from other circumstances that their
intention was to consider the person as representing the state for such purposes and to
dispense with full powers
2. In virtue of their functions and without having produce full powers, the following are considered
representing their state;
a. Heads of state, Heads of Gov’t and Ministers for foreign affairs
b. Heads of diplomatic missions
c. Representatives accredited by the states
Authentication of Text