PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y.
2015-2016
I – INTRODUCTION
MEANING AND NATURE OF INTERNATIONAL LAW
TRADITIONAL, MODERN & POST-MODERN DEFINITIONS
TRADITIONAL DEFINITION
Brierly: The body of rules and principles of action which are binding
upon civilized states in their relations with one another.
DBL’s discussion
Then, International law governed only states or International law was
viewed to govern states alone. When you speak of actors of international
law, they were only referring to state actors. So all others – international
organizations, multinational companies, and even individuals are called
non-state actors.
MODERN DEFINITION
Hackworth: It is that branch of public law which regulates the relations
of states and other entities which have been granted an international
personality.
(E.g. Laws of the Sea, Rules on war or armed conflict)
POST-MODERN OR CONTEMPORARY DEFINITION
Section 101, Restatement (Third), American Law Institute of
the Foreign Relations Law of the United States
International law consists of rules and principles of general application
dealing with the conduct of states and of international organizations and
with their relations inter se, as well as with some of their relations with
persons, whether natural or juridical.
TN: This definition now includes not only states but international organizations and
even individuals.
HISTORICAL DEVELOPMENT OF PIL
HOW PIL DEVELOPED
WHY PIL WAS PREVIOUSLY VIEWED TO GOVERN ONLY STATES
We started with a conception that Public International Law governed
only states. Why did we view international law as regulating only the
conduct of states? This is because at that relevant time, during the
classical period of international law, the states were mostly at war.
Concept of sovereignty in the Treaty of Westphalia
Monopoly of power
The concept of sovereignty in the treaty of Westphalia was perceived to
be that concept involving what John Jackson called the monopoly of
power. Sovereignty was the basis for the commitment made by the
parties to the treaty of Westphalia to not intervene with the affairs of
the neighboring European states precisely because to interfere is to
violate the monopoly of power concept.
By monopoly of power, we mean that if you are the authority in a
particular territory, no other authority should have a say on how that
particular territory should be managed or governed. So that’s the depth
of origin.
So basically at that time, the international community was concerned
simply of states, being actors in international law relations.
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HOW PIL EVOLVED TO INCLUDE NON-STATE ACTORS
Beginning 1907, states started to agree on certain rules governing the
conduct of war. They entered into treaties and conventions like the
Hague and Geneva Conventions around 1907. The Geneva Conventions
were completed on 1949 (four Geneva conventions were completed).
The League of Nations
This triggered the idea "why don't we create, other than the convention
or a treaty, some sort of association of states to put an end to war?” So
they thought of the League of Nations.
However, the main weakness of the League of Nations was because it
was simply perceived as an association, and not really as something that
has an International legal personality. This is because of the lack of
cooperation of some influential states like the US. That was the main
failure of the League of Nations.
The United Nations
The League of Nations fell following the World War II. Then, in the early
part of the 20th century in 1945, the United Nations was created. The
UN Charter entered into force on October 25, 1845.
So, when international organizations participated actively in the
international affairs of nations, the international community saw their
importance and their vital role and so the new concept of PIL also
developed, to include now even non-state actors such as international
organizations.
Decolonization as the most significant contribution of the United Nations
After 1945, UN charter, what important part of history contributed to
another development of PIL? What was basically one of the important
contributions or accomplishments of the UN?
Then, use of force was accepted as a valid and legitimate means of
acquiring territories. The use of force was not yet considered a
prohibition – not yet a CIL. It was only in the 1940s that the prohibition
on the use of force was recognized as a CIL (US v. Nicaragua case)
Decolonization was one of the significant contributions of the UN. The
UN, through Gen Assembly's Resolution held upon powerful states which
colonized weaker states to let go of their colonies because at that time,
the international community started to recognize that in the
relationships between nations, the individuals which compose the state
must also be considered along with the state itself as a juridical entity.
Right to self-determination
This was the time when the right to self-determination have emerged
as a norm in PIL. Because of this conception of the right to self-
determination therefore, recognition that colonized states, by virtue of
their peculiar culture, history, race, religion, are entitled to be left alone.
The history of definitions of PIL, temporarily belonged to the traditional
thinkers of PIL like Brierly which defined International Law as “the body
of rules and principles of action which are binding upon civilized states
in their relations with one another.”
Because of utilitarianism prevailing at that time, our concerns were
simply that which affected the states. And so only states were
considered actors in international law.
Modern definition by Hackworth is that “it is that branch of public law
that regulates the relations of states and added entities which have been
granted an international personality. “
So, he added the other actors - added entities in PIL with a requirement
that these actors should have been granted international personality.
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PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
In the case for example of the UN which tried to make a claim in the
international level because of the death of one of its officials. What is
the relevance of this case? Unlike the Supreme Court, the ICJ can render
advisory opinion upon the request of parties concerned.
Problem: The Chief UN Truce Negotiator Count Bernadotte, a Swedish
national, was killed on September 17, 1948 in Jerusalem. The assassins
were allegedly a gang of terrorists. Israel was not a member of the UN
at the time of the incident.
Issue: Whether the UN had legal personality to bring a claim with the
view of obtaining reparations in respect to the damage caused to itself,
to the victim or persons entitled through the victim.
Held: See Reparation for Injuries case (ICJ Advisory Opinion 1949)
Reparations for Injuries case (ICJ Advisory Opinion 1949)
DBL’s discussion.
The Chief UN Truce Negotiator, a Swedish national was killed by some
terrorist group in Jerusalem, Israel. Israel was not a member of UN at
that specific time.
The Just and Fair Treatment of Nationals Abroad
It is part of CIL that the moment a state admits a foreigner in its
territory, that state must give that foreigner a certain level of treatment.
States admitting foreigners are required to treat aliens justly and fairly.
We call this “The Just and Fair treatment of Nationals Abroad”. That's
the minimum standard required. So the moment a foreigner is admitted
in a foreign soil, that state is required by CIL to afford the foreigner a
just and fair treatment.
State Responsibility
Why is that important? Because failure on the part of the concerned
state to protect a foreigner may open up the possibility that the state
will be held responsible at the international level – that’s what you call
state responsibility.
Responsibility will cover several areas – it could be in a form
compensation, reparation, restitution, cessation of ongoing acts and the
possibility that the guilty state will be a subject of a lawful
countermeasure by other states.
The point being, that the moment there is failure to comply with at least
a CIL, not to mention conventional obligations, there is a possibility that
the state will be considered as having committed an internationally
wrongful act. This UN official was still in the territory of the Israel and
therefore there was at least a prima facie evidence that somehow, Israel
failed to afford the foreign national a fair and just treatment.
So the question now is this, who could assail or rather who could charge
Israel with an internationally wrongful act and therefore consider it as
responsible state? Is it the UN or Sweden?
On the issue of who between UN and Sweden can bring the claim
It is really only the United Nations which has the capacity to present a
claim in the circumstances referred to, inasmuch as at the basis of any
international claim there must be a breach by the defendant State of an
obligation towards the UN. In the present case, the State of which the
victim is a national (Sweden) could not complain of a breach of an
obligation towards itself. Here the obligation is assumed in favour of the
United Nations. The claim brought by UN is not based upon the
nationality of the victim but rather upon his status as an agent of the
Organization.
On the issue of UN’s capacity to bring an international claim
This capacity certainly belongs to a State. Does it also belong to the
Organization? This is tantamount to asking whether the Organization
has international personality.
2|U N I V E R S I T Y O F S A N C A R L O S
Yes. The United Nations, is at present, the supreme type of international
organization, and it could not carry out the intention of the founders if
it as devoid of international personality. It must be acknowledged that
its Members, by entrusting certain functions to it, with the attendant
duties and responsibilities, have clothed it with the competence required
to enable those functions to be effectively discharged.
While it is conceded that original international legal personality belongs
to the main actors of international law, namely states, the United
Nations has an international legal personality through the fact that its
member states, by the very fact of creating such an organization, must
have transferred some of their powers over the organization (derivative
international legal personality)
Important concepts to remember:
International Legal Personality
The ability to possess international rights and duties and the power to
sustain these rights by bringing international claims.
Derivative International Legal Personality
The UN has an international legal personality through the fact that its
member states, by the very fact of creating such an organization, must
have transferred some of their powers over the organization.
BRIEF HISTORY OF PUBLIC INTERNATIONAL LAW
BRIEF HISTORY OF PIL
Hugo Grotius (Father of Public International Law)
1625 published “On The Law of War and Peace”. In 1609, he
also wrote “Mare Liberum” (The freedom of the seas)
1648 Treaty of Westphalia (Spain, Roman Empire, Etc.)
16th to 17th Were the “classical age of public international law”
Centuries
1789 Birth of the term “inter-national law” by J. Bentham
Lieber Code (Lincoln’s General Order No. 100 or the
1863 “Lieber Instructions”) – the first document that governs
conduct of war
1899 Permanent Court of Arbitration
1907 Hague and Geneva Conventions (there were four (4)
Geneva Conventions in 1949)
Permanent Court of International Justice (PCIJ) of the
1922 to League of Nations, then replaced the International Court
1946 of Justice (ICJ) of the United Nations.
Creation of International Law Commission (ILC) tasked to
1948 codify international law.
The increase in global trade, armed conflict,
environmental deterioration on a worldwide scale,
19th
– 20th awareness of human rights violations, rapid and vast
Centuries
increases in international transportation and a boom in
global communications saw the importance and
usefulness of Public International Law, which at this time
began to establish new and modern areas in international
law (trade & investment, technology, human rights,
environment, space, etc.)
AWIT l ADLAWON l DENIEGA l ESTOY l FLORO l IBANEZ l TARAN
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
CHARACTERISTICS OF PUBLIC INTERNATIONAL LAW
PIL IS A HORIZONTAL LEGAL SYSTEM
PIL IS A HORIZONTAL LEGAL SYSTEM
Vertical legal system
First, what do we mean by vertical legal system? It means you have a
higher law, you have an inferior law. You have hierarchy of authority.
You also have hierarchy of institutions. You have a supreme institution,
which enacts laws and commands obedience. This is typical of a
domestic legal system. Thus, under our jurisdiction, if the statute
violates the constitution, the statute is null and void.
Horizontal legal system
But we don’t see this kind of system in public international law. Some
authors even call it the “Billiard Ball Theory.” In billiards, you hit one ball
with another ball without affecting the inside or the interior of the ball.
It only affects the outside of the ball.
International Law therefore deals with States as a whole and not with
what is inside that state. It does not deal with the domestic law of the
state.
TN: This is not absolute however, since recent development shows that in some
instances, international law problems are solved by looking at domestic legal
systems. In fact, one of the sources of Public International Law, are the General
Principles of Law which are usually found in the decisions of the local courts.
Q. Is PIL a true law?
The answer would depend on one’s understanding of what law is.
To those who embrace the positivist perspective, that law is imposed by
a higher authority and that there must be a hierarchy in the legal
systems – PIL is not a true law since PIL lacks a supreme authority.
There is no legislature, no executive branch and no system of courts,
except to the extent that states may have subjected themselves to
certain “compulsory” processes and consequences under treaties and
conventions.
To those who believe that law is capable of effective enforcement – PIL
is a true law. The existence of law is one and its violation is another.
Law is law, whether the subjects follow. But it is given that there is a
problem with the enforcement.
Q. Why do the States obey PIL if there is a problem with its
enforcement?
A. Self-preservation Theory – International community perceives
compliance of IL on the basis of natural law. If I attack your
territory, it is possible that you will retaliate so I will not do such.
B. Self-interest Theory – It is of my best interest that if I obey the
terms and conditions of the treaty, by the time that I will have to
request, I can expect compliance from your end. It is of the best
interest of the state to comply IL. The state can have benefits in
trade, investment, or political in exchange.
C. Acculturation Theory - It is just part of the culture of states that
they easily obey to certain norms.
D. Legitimacy Theory – State obey a particular norm because it is just,
right, reasonable, or pragmatic. Even if we talk about certain
policies in our company, there are rules that we easily obey. It is
not because we are compelled to obey it but sometimes, we obey
the law because we feel that it is a good law or that it is a sensible
law.
E. Positivist Theory - At least in so far as conventions and treaties are
concerned, states obey them because of consent. This is otherwise
called the consent based theory. A contracting party to a treaty of
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course is bound to obey because it had already consented to the
terms and conditions.
Some forms of peaceful enforcement of PIL
A. Voluntary compliance
B. Force of public opinion
C. Self-help
D. Treaty-based enforcement
DOCTRINE OF SELF-HELP
DOCTRINE OF SELF-HELP
Self-help, unlike in domestic sphere applying domestic law, is normally
the means by which states enforce their rights.
We don’t have international court and international police but we rely
on what aggrieved states may do in order to compel compliance.
Normally the means by which states enforce their rights are through the
following:
A. Retorsion – A lawful act designed to injure the wrongdoing of
another state.
B. Reprisal – Act that is normally illegal but rendered legal by a prior
illegal act committed by another state.
PUBLIC INTERNATIONAL LAW AS A BINDING LAW
PIL IS A SYSTEM OF CONSENSUS
PIL IS A SYSTEM OF CONSENSUS
PIL is a system of consensus rather than command. It is binding since
the states agreed to be bound by it.
Q. Is PIL a binding law?
In so far as a particular international norm is observed and considered
binding by states, then they may be considered as law. But to say that
it is law is not to say that it is applicable and binding on all states. Not
necessarily. It depends on what kind of norm or PIL we are talking
about.
TN: This is especially true in light of the persistent objector principle.
It is a law between states that are compelled to obey it by reason of
being a party to a treaty or convention, or because the norm or the PIL
partakes of the nature of a Jus Cogens norm that had been treated by
all civilized states as non-derogable.
Q. Give an example of a PIL that may be binding on all states.
Jus Cogens – a norm treated by all civilized states as non-derogable.
Examples are prohibitions against torture, slavery and genocide.
SCOPE OF PUBLIC INTERNATIONAL LAW
THREE REGIMES OR DIVISIONS OF PIL
THREE REGIMES/DIVISIONS OF PIL
A. The Law of Peace – Law of Treaties (how are treaties formed,
the rules governing formation, enforcement and ratification of
treaties), Law of the Sea, Diplomatic Relations, etc.
B. The Laws of War – When there is war and whether valid or not.
 Jus ad Bellum (legality of engaging in war) the justifications
in entering into war; when is use of force permissible.
 Jus in Bello (legality of conduct of war)
C. The Law of Neutrality – Governs the conduct of states not
engaged in war.
TN: Human rights law would be applicable both in times of peace and of war.
AWIT l ADLAWON l DENIEGA l ESTOY l FLORO l IBANEZ l TARAN
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
PUBLIC V. PRIVATE INTERNATIONAL LAW
PUBLIC INTERNATIONAL LAW
Public International Law
Governs the activities of states and other international persons/entities
in relation to each other. It governs “relationships” of international
persons inter se.
Example:
X, a citizen of State A, is the Ambassador to State B. X’s official archives
and documents were seized by the police of State B and X was
subsequently subjected to a state-sponsored torture in State B. State A
filed a suit for compensation before the ICJ. Is State B liable?
TN: What are the obligations of a receiving state towards members of the
diplomatic missions of a sending state? That is a PIL controversy.
PRIVATE INTERNATIONAL LAW
Private International Law
Governs the activities of individuals, corporations, and other private
entities when they cross national borders and in controversies involving
foreign element. It resolves “conflict of laws”.
It regulates the type of law applicable to a particular controversy. It is
called private because it does not govern relationships between states
but rather it governs what type of law will be applied to a particular legal
controversy (when there is a foreign entity involved).
Example:
X, a citizen of State A, is the Ambassador to State B. X maintained funds
in various banks in State B and also acquired in State B certain
condominium units. X died in State C. It was learned that X also has
funds and properties in State C and State D. What law shall govern the
distribution of the estate of X?
FORMATION AND ENFORCEMENT OF IL
FORMATION OF INTERNATIONAL LAW
FORMATION OF INTERNATIONAL LAW
Q. How is international law formed?
A. By agreement of the States – Public International Law may be
enacted by agreement of a group of states. It may be considered
a positive law by the contracting parties.
B. State Practice – PIL may come into existence as a result of
practice of states coupled with the belief that it is practiced
because the norm or conduct is binding upon states.
TN: So it may be by convention, by treaties or by practice.
ENFORCEMENT OF INTERNATIONAL LAW
ENFORCEMENT OF INTERNATIONAL LAW
International laws are enforced through:
A. Self-help measures
B. Conventional modes of enforcing as borne out by treaties,
conventions
C. Others (fear of international criticism, voluntary compliance, etc.)
Self-help measures
A. Retorsion – is a lawful act which is designed to injure the
wrongdoing state—for example cutting off economic aid (this is
lawful because there is no legal obligation to provide economic aid,
apart from under special treaty provisions).
4|U N I V E R S I T Y O F S A N C A R L O S
B. Reprisals – are acts which would normally be illegal but which are
rendered legal by a prior illegal act committed by the other state.
For instance, if state A expropriates property belonging to state B’s
citizens without compensation, State B can retaliate by doing the
same to the property of State A’s citizens. This must be
proportional though.
TN: We call this in PIL as Self-Help measures. There is no international police or a
sheriff that implements or executes the judgment. There is no writ of execution
that will be issued by the international tribunal. So one problem in PIL is how to
enforce the norms effectively. There is no problem if states obey them. The
problem is if they don’t.
Conventional modes
Member states of the WTO are not supposed to distinguish between
foreign goods and local goods to the extent that it will restrict the trade
of these goods or hamper trade transactions between member states.
The very idea of WTO is trade liberalization.
Now, what happens if a member state of the WTO passes a law that
effectively prejudices or unfairly treats foreign products in favor of
locally produced products and in violation of the WTO?
It is possible that states have entered into a conventional way or mode
of enforcing certain international norms. Under the WTO, there are
procedures by which a particular norm may be enforced as against a
member state. So in this case, the affected foreign state will be allowed
to also do the same to the product of the offending state. How is it
done? It is allowed by the WTO itself.
So aside from self-help, there are conventional modes or methods of
enforcing PIL as borne out by treaties, conventions, mostly multilateral
treaties.
Others
It is also a fact in international relations that some states are bound to
obey PIL because of bar of the public opinion. Some states easily comply
with certain norms for fear that they may be the subject of international
criticism. Or, states of course may just voluntarily comply with a public
international norm.
SUBJECTS OF PUBLIC INTERNATIONAL LAW
PRIMARY AND SECONDARY SUBJECTS
SUBJECTS
Those that enjoy international legal personality and being capable of
possessing international rights and duties, including the right to bring
international claims.
A. Primary subjects – States
B. Secondary subjects –
 International Organizations (e.g. UN, WTO)
 Individuals (protected persons of IHL, insurgents and the
national liberation movements, minorities)
 Juridical persons (e.g. multinational companies)
 NGOs (e.g. ICRC, Greenpeace, Amnesty International)
Q. How would you know that the states are the subjects while
its individuals are the objects?
A. Subject – bearer of rights with the power to maintain and pursue
such rights
B. Object – not a bearer of rights nor can pursue claims
Q. Why are States still the primary subjects?
 International law is still predominantly made and implemented by
states
 International Organizations are still dependent to a large extent
on the willingness of states to support them
AWIT l ADLAWON l DENIEGA l ESTOY l FLORO l IBANEZ l TARAN
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
 Only states can be members of the UN
 Only states are entitled to call upon the UN Security Council in case
of threat to peace and security
 Only states may appear in contentious proceeding before the ICJ
 Only states can present a claim on behalf of a national who has
been injured by another state, if there is no treaty to the contrary
 An individual has no “individual rights” under customary
international law and is dependent on the political discretion of the
home state.
TN: Some authors contend that individuals are not parties to international
law although they can be bearer of rights recognized by international law.
INTERNATIONAL LEGAL PERSONALITY
INTERNATIONAL LEGAL PERSONALITY
Q. What is meant by International Legal Personality?
Reparation for Injuries Case (ICJ Advisory Opinion, 1949)
ICJ: “The ability to possess international rights and duties and the power
to sustain these rights by bringing international claims”.
While it is conceded that original international legal personality belongs
to the main actors of international law, namely states, the UN had
international legal personality through the fact that its member states,
by the very fact of creating such an organization, must have transferred
some of their powers over the organization. (“Derivative International
legal personality”)
ICJ: “UN is at present the supreme type of international organization,
and it could not carry out the intention of the founders if it as devoid of
international personality. It must be acknowledged that its Members, by
entrusting certain functions to it, with the attendant duties and
responsibilities, have clothed it with the competence required to enable
those functions to be effectively discharged”
DBL’s discussion:
Bringing the claim is just one component of having a personality. We
can go back to the advisory opinion of the ICJ in the Reparation for
Injuries case. Is it not that the ICJ confronted a dilemma of whether it
would rule that the UN can bring the claim for and in behalf of the
murdered officer of UN. Was it together with Sweden or was it to the
Exclusion of Sweden? How was it resolved by ICJ?
When a state charges another state for violation of IL therefore invoking
regime of State responsibility, in regard to treatment of aliens, what
process in IL should the state avail of? What right for example?
If you are to charge a foreign state that it failed to afford our citizen just
and fair treatment therefore it is responsible, and now you are bringing
a claim at the international court, how do you call it?
The process or the right exercised by the state is called the right to
Diplomatic Protection. The right to Diplomatic Protection is sometimes
used interchangeably with espousal of claim.
Comfort women case
The comfort women from Philippines asked for compensation from
Japan. However, since they cannot ask through the UN as they have no
legal personality, they have to put up their claim first to the government.
This is how International Law views individuals. At least with regard to
reparation, individual are considered as objects of IL while the states
are viewed as subjects. If you are a subject of IL, first you must be a
bearer of right, and then you have the right also and power to maintain
to pursue such rights (not only possessor but also the ability to pursue
that right or to make a claim).
If you don't have an International legal personality (you are not a bearer
of right nor cannot pursue a claim), then in that context, you are simply
5|U N I V E R S I T Y O F S A N C A R L O S
an object of PIL. So in this case, we talked about espousal of claim and
state responsibility, the individual is indeed an object. For the claim to
be appropriately brought before at the International level, it must be
done by a subject of IL.
So of course, the Supreme Court denied the claim of the comfort
women. Do you know why? It’s because the crime was not yet
considered a jus cogens norm, so the Philippines was not bound to make
a claim on the basis of jus cogens, that why it refused.
Reparation for Injuries case
In this case, the ICJ said that this is not to say that its opinion bars
Sweden from also exercising Diplomatic Protection. That’s why the ICJ
mentions two kinds of protection, one is diplomatic that pertains to
Sweden because the UN official was a Swedish national, at the same
time there is what the ICJ called functional protection because
murdering, killing, disrespecting the human dignity of the official also
offends the organization as a whole.
Two kinds of protection:
1. Diplomatic protection – Exercised by the State where the official is a national.
The individual subject to diplomatic protection must be a national of the state
seeking diplomatic protection.
2. Functional protection – Exercised by the Organization where the person is an
official or agent. This is because murdering, killing, disrespecting the human
dignity of the official also offends the organization as a whole.
In that regard, the UN can have an international legal personality
because the claim brought by UN is not based upon the nationality of
the victim but rather upon his status as an agent of the Organization.
WHEN OBJECTS MAY BE CONSIDERED AS SUBJECTS
WHEN OBJECTS MAY BE CONSIDERED SUBJECTS
Q: In what instance may individuals be considered as subjects
of Public International Law?
When they exercise their right to self-determination. It is a right which
has already ripened into a customary norm and can be exercised against
states.
Self-determination
Groups of people, who share the same history, the same origin, culture
may find themselves the minority in a particular community. It may
happen that the State where the minority belongs tends to disregard the
unique culture. As a result, this particular state or government will only
pass one set of laws, one set of legal system, one set of policy and
disregarding the unique culture of these minority groups.
If that happens, after attempts by this group to be recognized by the
majority, it may happen that in PIL, they want to secede. And this is the
usual problem in state or territorial secession. They cannot continue to
live along with the majority with just one set of laws because they have
their own culture and practices, traditions. They want that the national
government will also address that. So that failure by their State to do so
would be a violation of their right to self-determination.
Armed conflict and application of the Laws of War
Assuming that this conflict between the right of the state to its territorial
integrity and the right of the minority to self-determination escalates
into an armed conflict – a new set of law will apply between the
participants in the armed conflict (Laws of War)
These armed groups are not states. They are not even organizations.
They are just individuals. But why ask them to observe the laws of war?
We have rules in the conduct of war. For example, when you capture a
combatants, they are to be treated as Prisoners of War. There are rules
under the Geneva Convention on the treatment of Prisoners of War.
AWIT l ADLAWON l DENIEGA l ESTOY l FLORO l IBANEZ l TARAN
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
Civilians also enjoy rights during an armed conflict. There are various
principles governing the conduct of war. For example, the principle of
proportionality, the principle of military necessity. These principles are
PIL principles but we are making them applicable to individuals.
To that extent, individuals become Subjects of PIL because they too are
compelled to observe the Laws of War.
To summarize –
 You have to distinguish Subject from Object.
 The Object does not possess international legal personality and
therefore it cannot bring international claims.
 States are the primary subjects while individuals normally are mere
objects of PIL.
 But in some instances, individuals may be regarded as subjects, that
is when they exercise their right to self-determination. They may be
treated as subjects when there is already an armed conflict. But in
this instance, they may be treated only as secondary subjects.
II – SOURCES OF INTERNATIONAL LAW
FORMAL AND MATERIAL SOURCES
FORMAL V. MATERIAL SOURCES
A. Formal source – It is how international law is created, formed or
established. It is the method by which the law comes into being.
B. Material source – Where international law can be found or
located.
TN: When you say sources of International Law – material source or
formal, you are not classifying such that when you are classifying, you
have to make a choice. It may be viewed as a formal source or a material
source. It is not a choice.
TREATY
Treaty as a formal source
Viewed from the conception of treaty as formal source of International
Law, treaty is formal source in the sense that it is binding because of
the way it has been created. It's not about the process, it is about how
it was created to make it binding.
If State A and B entered into a treaty, then the binding effect of the
treaty is in the fact that the parties consented to enter into such treaty.
So how was it formed? By agreement. What made it binding? The fact
that they agreed to such convention or treaty. So that’s viewing source
as formal source.
Doctrine of auto-limitation
States consented to be bound by the terms and conditions of the treaty,
therefore, in relation to the sovereign character of the state, they limit,
on their own, their exercise of sovereignty. It is the voluntariness of the
act of entering into a treaty that make the provisions of the treaty
binding upon the parties.
Treaty as a material source
But it can also be viewed as a material source, where the body of law
can be found. Why is state A bound to perform a particular act under
the treaty? Because the treaty says perform this particular act. You're
looking at the source of IL that compels the party to perform a particular
act. We refer to the provisions now of the treaty – the substantive
content as basis for saying that one is really bound by the provisions
thereof.
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CUSTOMARY INTERNATIONAL LAW
CIL as a formal source
How was it formed to make it binding? It was formed because of having
been practiced with the belief that the norm is a legally binding norm.
So it’s the process of practicing the norm in a uniform and consistent
way, not necessarily generally practiced but practiced in a uniform and
consistent way with the belief that the norm is binding.
CIL as a material source
It cannot be a document or any convention, although it may be codified
into conventions, but you see this CIL in the practices of the states.
PRIMARY AND SUBSIDIARY SOURCES
PRIMARY V. SUBSIDIARY SOURCES
Sources of International Law
Art. 38 (1), Statute of ICJ – The Court, whose function is to decide in
accordance with international law such disputes as are submitted to it,
shall apply:
PRIMARY SOURCES
A. International conventions
B. International custom
C. General principles of law
SUBSIDIARY SOURCES
Apply only if the primary sources are not available or if there is no source at all.
D. Judicial decisions and teachings of most highly qualified publicists
of the various nations
TN: Judicial decisions need not always be ICJ decisions
TN: ICJ lists the sources of International Law but how did it come up with such
list? UN commissioned experts forming part of the International Law Commission.
They did not just decide, they studied PIL and observed state practice and agreed
that on the basis of state practice and of belief of group of states, sources of IL
should be in this list.
Q. Is there hierarchy in the sources of International law?
In the travaux preparatoires (preparatory work) of Art. 38, it was
suggested that the sources as listed should indicate hierarchy of sources
but it was not carried out. There was only the agreement to categorize
these sources as either primary or subsidiary. The sources of
international law are not therefore arranged in a strict hierarchical order.
However, while there is no hierarchy among sources, there is a
consensus among states, that of these sources, jus cogens should be
considered as always superior to the others.
Jus Cogens – Article 53, VCLT
A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law is
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.
Examples: Prohibition on the use of force, genocide, slavery, gross
violation of the right of the people to self-determination, racial
discrimination, torture.
Q Can CIL be subject to change?
Yes. CIL may be changed by contradictory practice in a way that it is
established as CIL. So you will be complying with both the objective
element of state practice and subjective element of opinio iuris. In other
words, CIL can be replaced by a new CIL.
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PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016

The Paquete Habana Case Held: A CIL which happened to be codified in a treaty or convention will
Facts: Fishing vessels of Spain were captured by US Armed Forces as not lose its character as CIL because CIL can co-exist independently with
prizes of war. The vessels were sold, including the fishes captured and treaty law. Both can exist alongside each other.
the proceeds went to the US. It was established that the vessels, which
were not armed, were not aware of the existing war between Spain and
INTERNATIONAL CONVENTIONS OR TREATIES
the U.S. and the blockade ordered by the US government against Cuba.
INTERNATIONAL CONVENTIONS/TREATIES
As a rule, a fishing vessel cannot be captured. To be exempted from
capture, it should not engage in activities constituting or participating in “International Conventions whether general or particular and
the war. It has to be a fishing boat used for commercial and private establishing rules expressly recognized by the contesting States”
purposes. According to IL, in jus en bello, it is exempt from capture. But  The term “convention” includes and actually means “treaty”
at that relevant time, was that doctrine accepted as CIL?  Other terms: agreement, pact, understanding, protocol, charter,
statute, act, covenant, declaration, engagement, arrangement,
It was through the domestic court of US. So the court was asked to accord, regulation and provision.
declare whether or not the vessels were illegally captured. One relevant
information was that there was no national law in the US that governed Law-making treaties v. Contract treaties
the issue on whether or not fishing vessels engaged in commercial and
private purposes in good faith, not participating in the war, can be Law-making treaties Contract treaties
captured as prize of war.
Operate as binding rules, similar Not sources of international law,
to statutes but merely legal transactions
Why is it important to point out that there was no national legislation?
This is because the US adopts the incorporation clause. So when there Imposes the same obligations on
is no national legislation, we can apply CIL by way of incorporation. all the parties to the treaty and Treaties which resemble contracts
Otherwise, that becomes irrelevant if there is or was a national seek to regulate the parties’ (reciprocal)
legislation governing the issue. There was none, and so for the court to behaviour over a long period of
be able to apply such principle, because of the absence of national law, time
that principle must be of CIL status for the US to be able to recognize Purpose is to conclude an Observance of the contract
and apply it to its own court. Was it declared as CIL? agreement on universal depends on both contracting
substantive legal principles; to parties (performance of one
Held: Yes. It is customary international law that coast fishing vessels regulate conduct depends on the other’s) and their
pursuing their vocation of catching and bringing in fresh fish, are willingness to observe
exempt, with their cargoes and crews, from capture as prize of war.
This, the U.S. has also recognized as law as shown in the various treaties TN: Treaty as a source of IL only refers to law-making treaties and not
it had entered into in the past. contract treaties.

Q. What is the normative value of a treaty in relation to CIL?

Treaty may be a codification of already existing CIL or is an evidence of
a progressive development of CIL. It could either be just a codification
of what already existed in the past or that itself is the beginning of a
new or emerging CIL.
Q. Can a treaty contravene a CIL? What is the normative value
of a treaty in regard to the determination of whether a
particular norm has become a CIL?
Treaties can also serve as evidence of state practice. There may come
a time that CIL can actually be changed through treaties. When such
entrance into treaties, especially in a form of convention where
membership occurs, membership would be big enough as to comply the
requirement of at least uniformity - and we add a good lapse of time to
determine also consistency of the practice. Then, CIL can actually be
replaced by treaties. In the same manner, treaties can also establish
new CIL.
Nicaragua v. USA
US made a reservation that it will not submit in advance to the
jurisdiction of the ICJ if the treaty involved is a multilateral treaty. UN
Charter being a multilateral treaty therefore, US claims that Nicaragua
cannot invoke Art 2 (4) on the prohibition against the threat or use of
force.
Nicaragua argued that assuming that the provision it invoked is found
on a multi-lateral treaty, the nature of the provision however is just a
codification of a CIL. The prohibition against the use of force is already
a CIL.
US argued that since the prohibition against the use of force, a CIL, has
been codified in the UN charter, it has therefore lost its character of
being a CIL.
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INTERNATIONAL CUSTOMS
INTERNATIONAL CUSTOMS
Art. 38(1), ICJ Statute –
“International custom as evidence of a general practice accepted as law”
Sec. 102, Restatement (Third) –
“Customary international law results from general and consistent
practice of states followed by them from sense of legal obligation.”
Two elements:
A. Objective Element (general practice)
B. Subjective Element (opinio juris sive necessitates)
Generally, only states make customary international law. Customary
international law evolves if enough states adopt a new practice which is
in violation of customary international law, the new practice becomes
the new customary international law.
Highest form of customary international law
Jus Cogens – “A peremptory norm of general international law which is
accepted by the international community of states as a whole as a norm
from which no derogation is permitted” (VCLT, Article 53). Includes
genocide, torture, slavery.
Difference between Jus Cogens and CIL
 Jus cogens norm can be changed by another norm of the same
character. CIL can also be modified by time and state practice - it
evolves.
 CIL is the broader concept. Jus cogens is more specific.
 Jus cogens norm is actually a CIL, but of the highest form. All
norms in PIL can change, even jus cogens. When we say "non-
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PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
derogable", it simply means that it cannot be violated under all or
any circumstances.
 Generally, one situation can only be governed by one regime. The
occurrence of another event may open up the application of
another regime and set aside the existing regime. Jus cogens will
never be affected by that. Jus cogens will apply whichever regime
is governing – under any circumstance.
Basic Characteristics of CIL
A. Repeated state practice
B. Practiced out of a sense of legal obligation
C. Usually developed over time and
D. Recognized as law (opinio juris sive necessitatis)
Relevant state practice rule
State practice need not be universal/unanimous – it can be general, but
it must have wide acceptance of states involved in the activity.
Guide Questions in understanding CIL:
1. What constitutes state practice?
2. How much practice is required? (duration, consistency, repetition,
and generality requirements)
3. Are dissenting and non-participating States bound by custom?
4. What evidence is required for opinio juris?
5. May treaties be invoked as evidence of customary law? May they
create customary law?
6. Is there a normative hierarchy in customary law?
7. Would declarations of law adopted by the UN G.A. constitute
presumptive evidence of accepted international law, irrespective of
actual state practice?
Paquete Habana case
Letters, orders, official acts of the government, apart from treaties, can
also be evidences of state practice.
Some evidence of “state practice” in Paquete Habana case:
 In 1403 and 1406, Henry IV of England issued orders protecting
fishermen of foreign states;
 1521 Treaty between Emperor Charles V and Francis I of France;
 1536 Dutch edicts which permitted herring fishing in time of war;
 During the American war, Louis XVI of France addressed a letter to
his admiral exempting fishermen from capture;
 1785 Treaty between the US and Prussia calling for the protection
of fishermen in time of war;
 1848 Treaty between the US and Mexico incorporating the terms
in the 1785 US-Prussia Treaty
Nicaragua vs. USA, ICJ Report (1986)
Re: Customary International Law can exist alongside with Treaty Law
Facts: Following the overthrow of the right wing government in
Nicaragua in 1979, the US in 1981 ceased economic aid on the ground
that the left wing Sandinista government in Nicaragua had aided the
guerrillas fighting against the El Salvador government with which the US
enjoyed good relations.
Nicaragua complained of violations of customary international law when
the US used armed force against it and when it provided assistance to
Nicaraguan guerrillas (the Contras) who had been fighting to overthrow
the Sandinista government. The US denied ICJ jurisdiction on the basis
of a reservation it made to the jurisdiction of the ICJ in matter that
involve multilateral treaty. Nicaragua argued that customary
international law had not been suspended by the UN Charter.
Customary International Law norms involved:
1. Principle of Non-intervention.
The US trained, armed, equipped, and financed the Contras
2. Prohibition against violation of Sovereignty of another State.
8|U N I V E R S I T Y O F S A N C A R L O S
The US entered/laid mines in the territorial and internal waters of Nicaragua
3. Prohibition against use of force against another State (Art 2 (4) UN
Charter)
The US attacked ground and naval forces of Nicaragua
4. Right to self-defense (Art. 51 UN Charter) requires armed attack
against the invoking State.
That Nicaragua armed the rebels in El Salvador did not necessarily constitute
armed attack against El Salvador
Key Principles:
A. General customary international law must be determined by the
general practice of the states and not just by the states party to
the dispute before the ICJ.
B. Opinio juris may be deduced from the attitude of the Parties
concerned and that of states to certain General Assembly
Resolutions.
C. The prohibition on the use of force is jus cogens. The principle of
“non-intervention” is customary international law and, therefore,
not affected by treaty stipulation. Customary international law can
exist alongside treaties.
Customary International Law in Treaties
ICJ in Nicaragua vs. US:
Even if the customary norm and the treaty norm were to have exactly
the same content, this would not be a reason for the Court to hold that
the incorporation of the customary norm into treaty-law must deprive
the customary norm of its applicability as distinct from that of the treaty
norm. More generally, there are no grounds for holding that when
customary international law is comprised of rules identical to those of
treaty law, the latter “supervenes” the former, so that the customary
law has not further existence of its own.”
North Sea Continental Shelf Case:
Re: Instant customary law
Facts: This case involves the application of the equidistant principle of
the delimitation of continental shelf and the equitable delimitation rule.
Equidistant rule is provided in 1958 Geneva Convention on Continental
Shelf. Germany argued they are not bound by it since the provision was
not yet effective at that relevant time. Relevant states were not yet
parties of the 1958 Vienna Convention and did not yet enter into force.
Netherlands and Denmark contended that the principle of equidistance
is a CIL. Germany argued back that such principle cannot be a CIL in
such a short period of time (1958-1964)
Issue: Is “long period of practice” relevant and important in determining
the formation of customary international law? May CIL be formed in a
short period of time? Is there such a norm as “instant customary law”?
Held: Yes. Short passage of time is not necessarily a bar to the formation
of customary international law. What is controlling is that the state
practice, including that of states whose interests are specially affected,
must be extensive and virtually uniform with regard to the provision in
such a way as to show a general recognition that it is a binding law.
Instant customary International Law (Terrorism)
Evolution of erga omnes norm in relation to Terrorism after the 9/11
attack. It was hard to exercise universal criminal jurisdiction against
terrorists. The remaining criminal jurisdiction theory applied before 9/11
(except US since it is very dynamic), was territoriality principle. Now the
legal landscape on terrorism has changed because of the 9/11 attack.
Universal jurisdiction is now applicable in terrorist attacks, though still it
has not been affirmed by tribunal courts.
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Asylum Case (Columbia vs. Peru, ICJ Report, 1950)
Facts: Following an unsuccessful rebellion in Peru in 1948, an arrest
warrant was issued for one of the leaders of the rebellion (Haya de La
Torre), a Peruvian national. He sought and was granted asylum by
Columbia in its Peruvian Embassy. Columbia sought, but Peru refused,
to provide a “safe conduct” for Haya de La Torre from the country.
Columbia requested the ICJ to rule that it (Columbia) as the state
granting asylum was the country competent to characterize the offense
as political for purposes of asylum. Columbia based its submission on
treaty and “American international law in general” or regional or local
custom peculiar to Latin American states.
Key Principle:
The burden of proof lies with the party alleging the existence of the
custom. It must demonstrate that the custom relied upon was
established in such a manner so as to become binding on the other
party. An alleged regional custom demands greater uniformity in
practice than a general custom.
Nature of Right to Asylum
Right to asylum is a CIL
One of the leaders of rebellion in Peru, a Peruvian national, Dela Torre,
fled and sought asylum at the Embassy of Peru belonging to Columbia.
Note that there is this rule in public international law that the right to
asylum has ripened into a character of customary international law, and
therefore one who seeks asylum from another state, the moment asylum
is granted, all other states are bound by the international norm to
respect the asylum.
The right to asylum developed because of the evolution of civil and
political rights. Some leaders have been persecuted politically and so the
only way to put teeth to the International Covenant on Civil and Political
Rights is to give victims of political persecutions opportunity to be in a
way immune from further political persecution by asking for asylum from
another state.
Right to safe conduct
As a result of the nature of the right to asylum, being part of the
customary international law, states are also bound to observe or grant
that person a safe conduct. And so that person may leave his own
country without the interference or intervention of the authorities of that
territory. He should not be subjected to arrest or detention precisely
because of safe conduct.
So basically from the Embassy of Columbia to Columbia, no Peruvian
authority may intervene in that process. The problem is this, Columbia
granted asylum because according to them the offense that Dela Torre
committed was political and therefore the grant of asylum was
appropriate. It was contested by Peru saying that it was not political and
the crimes committed by Dela Torre were common crimes.
Columbia argued that it is the state granting the asylum which is
competent to characterize the offense. To support its claim, it submitted
some American international law principles in general and some alleged
regional or local customs peculiar to Latin American states on that grant
of asylum.
There were about 3 or 4 conventions mentioned but apparently even 1
convention proves non uniformity and so ICJ wasn’t that convinced that
there was really such customary international law in the Latin American
countries on the matter of which state can competently characterize the
offense as political or not.
Level of Uniformity Required Establishing the Norm of CIL
There is no requirement of universality but there is such a requirement
of uniformity. The level of uniformity will vary depending on the nature
of international law whether it is universal or regional.
9|U N I V E R S I T Y O F S A N C A R L O S
If it is regional customary international law, a higher threshold of
uniformity is required in order to convince a tribunal that there exists
such customary international law. There is no formula on how much
greater the threshold is required. It cannot be quantified. It all depends
on the circumstances of the case.
Significance of refusal of some states to observe a norm
Since we are dealing with uniformity, what then is the significance of
refusal on the part of some states to observe a particular norm, will it
bar the formation of the norm? The other questions that should be asked
here are:
(1) How much of these states refuse to practice the norm?
(2) Who are these states not practicing the norm?
(3) Regardless of who are these states, are they relevant state
practice?
Otherwise, if this does not achieve a threshold that will bar a customary
international law, then the customary international law will exist
regardless of the non-practice of some states and it may be a case of
violation on the part of the non-observing states but not necessarily.
Anglo Norwegian Fisheries Case (UK vs. Norway, ICJ Report)
Q. Should the baseline follow the natural configuration of the
bay meaning it should also indent?
If the two points of the mouth of the bay is 10 nautical miles or less, it
is acceptable and considered a practice to just draw a straight line
connecting the two points of the mouth and no need to indent.
Otherwise if it is more than 10 nautical miles following the low water
mark, then drawing a straight line between the two points is not allowed.
In which case, the baseline should be indented.
Q. Is this 10 nautical mile rule binding on Norway? How much
of these states practice the contrary rule? Did the ICJ quantify?
Under the UNCLOS, it is not anymore 10 nautical miles, it is now 12
nautical miles and there is variance on how to do it depending on how
deep or shallow the indention is. ICJ’s level of analysis was to test
whether the 10 nautical mile rule has ripened into customary
international law and as applied to Norway.
As said, the ICJ noted contrary practice by other relevant states, not all
states but only those with baselines and maritime zones. The ICJ also
said that even assuming that this rule ripened into customary
international law, Norway has been consistently objecting to the 10 mile
rule even before this rule assuming has ripened to a customary
international law. This is the doctrine known as persistent
objector/dissenter.
Persistent Objector/Dissenter Doctrine
According to ICJ the important elements to consider in this case are:
(1) The objection by the state objector/dissenter must have been
done before the norm has ripened to customary international law
or at the outset.
TN: Otherwise the objection can be treated as a violation of the customary
international law and in that regard there is a breach, and so the state
dissenting may still be bound by the customary international law.
(2) The objection must be consistent.
TN: It cannot be that you objected 50 years ago and the next time you
express your dissent to the norm will be 50 years after, then it is hard to
comply with the requirement of consistency. The objection must be
consistent in the same manner as the practice must also be consistent.
(3) The objection must be categorical, clear and equivocal dissent
must be shown.
ICJ held that although the 10 nautical mile rule has ripened into
customary international law, the same is not applicable to Norway which
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has been an objector/dissenter from the outset, the practice was
consistent, and the objection was categorical clear and equivocal.
Q. May a State validly exempt itself from the application of a
customary international law? Are all states, therefore, bound
by all norms of customary international law?
A state, which from the outset consistently objects to a particular
practice, is not bound by any rule of alleged customary international law
which may arise from the practice. (“Persistent Objector Doctrine”)
Fisheries Jurisdiction Case (UK vs. Iceland, ICJ Report, 1973)
Key Principle:
Article 62 of the Vienna Convention on the Law of Treaties, relating to
termination of a treaty because of a fundamental change in
circumstance (rebus sic stantibus), represented a codification of existing
customary international law.
In the case there was, however, no evidence of such “fundamental
change” in the fishing techniques that resulted to what Iceland called
“overfishing in the Icelandic coast.” In any case, such fundamental
change doctrine may only affect the merits of the case, but not as to
the issue of whether the ICJ will have jurisdiction over the subject
matter.
Legality of the Threat or Use of Nuclear Weapons Case (ICJ
Advisory Opinion, 1996)
Key Principles:
A. The ICJ said that the General Assembly resolutions may show the
formation of opinio juris. Although not legally binding, they may
have normative value.
B. Lotus Doctrine (customary international law and how to relate it to
sovereignty) A state is barred to do an act only when it is so
prohibited under a treaty or customary international law because
restriction to state sovereignty is not presumed
Q. What is the relevance of the ICJ Advisory in the study of CIL?
Is the threat or use of nuclear weapons prohibited under public
international law?
The question should be contextualized, not just a straightforward
answer of yes or no. It must be contextualized under humanitarian law,
conventional warfare and on the concept of self-defense.
We are dealing here with use of nuclear weapons as an exercise of
power by a state. ICJ contextualized it because if one has to make a
rule, necessarily the rule will affect one’s sovereignty and how do you
relate limitation to one’s sovereignty and the establishment of certain
norm under international law?
ICJ Opinion and Voting
 Unanimous, on the principle that “there is neither customary nor
conventional international law on any specific authorization of the
threat or use of nuclear weapons”
 11-3, on the principle that “there is neither customary nor
conventional international law on any comprehensive and universal
prohibition of the threat or use of nuclear weapons as such”
 Unanimous, on the principle that “a threat or use of force by means
of nuclear weapons that is contrary to Art. 2, par. 4 of the UN
Charter and that fails to meet all the requirements of Art. 51, is
unlawful”
 Unanimous, on the principles that “a threat or use of nuclear
weapons should also be compatible with the requirements of the
international law applicable to armed conflict and IHL as well as
specific obligations under treaties dealing with nuclear weapons”
 7-7, on the principle that “while the threat or use of nuclear
weapons would generally be contrary to the rules of IHL in armed
conflict, the Court cannot conclude definitively whether it would be
10 | U N I V E R S I T Y O F S A N C A R L O S
lawful or unlawful in an extreme circumstance of self-defense in
which the very survival of the State would be at stake”
 Unanimous, on the principle that there exists an obligation to
pursue in good faith efforts towards nuclear disarmament.
DBL’s discussion:
However, if you factor in the improved technology today, will the
advisory opinion of the ICJ in 1996 still hold true at present? Would the
survival of the state justify the use of nuclear weapons?
Lotus Case (France vs. Turkey, PCIJ Series A No. 101, 1927)
Facts: Lotus, a French steamer, and a Turkish steamer, collided on the
high seas. The Turkish steamer sank and eight Turkish sailors died. The
French officer on watch of the Lotus was prosecuted in Turkey. French
government argued that the flag state has jurisdiction. Turkey counter-
argued that the “flag state rule” is not exclusive and that there has been
no rule of customary international law which gave exclusive jurisdiction
of the flag state.
The ICJ said that there was neither customary international law nor
conventional international law that prohibited the exercise of territorial
criminal jurisdiction and so restriction to state’s sovereignty cannot be
presumed.
TN: The idea since the Lotus case is that restriction to sovereign states is not
presumed and therefore the threshold in limiting the exercise of sovereignty should
be higher and there should be clear evidence of existence of convention or
customary international law.
Key Principles:
A. Restrictions upon the independence or sovereignty of states cannot
be presumed.
B. Jurisdiction is territorial but international law does not prohibit a
state from exercising jurisdiction in its own territory over a case
relating to acts which have taken place abroad.
C. No definite rule of customary international law regarding collision
cases in the high seas
TN: There are some rules now on collision cases in the high seas under
UNCLOS III of 1982. The specific rule now governing collision cases on
high seas is the flag state rule or the nationality rule.
Q. Does “abstention” by some states to exercise criminal
jurisdiction for crimes committed abroad, offer evidence that
such practice of abstention is obligatory?
Because this was the argument of France. According to it, one cannot exercise
criminal jurisdiction over offenses committed abroad because the flag state rule
should prevail. The States do not practice criminal jurisdiction where crimes were
committed outside their territorial jurisdiction. Does it offer evidence that such
practice of abstention is obligatory?
No. It is not a sufficient evidence to show that nations favor the flag
state rule just because they abstain from practicing criminal jurisdiction
over offenses committed outside their territory.
GENERAL PRINCIPLES OF LAW
GENERAL PRINCIPLES OF LAW
Recognized by civilized (peace-loving) nations. Aimed at providing
solutions to controversies where treaty law or customary law provides
no guidance.
“Law” can refer to both “international law” and “municipal law elevated
as international law” (common municipal law)
Examples: estoppel, good faith, exhaustion of local remedies,
prescription, etc.
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South West Africa Case
Key Principle: Actio popularis (the action to obtain remedy by a person
or a group in the name of the general public without being, or directly
representing, the victim) is not recognized as a general principle of law.
In international law, it refers to the action taken by a State in the name
of the international community even if it is not directly the victim.
Barcelona Traction Case
Key Principle: In the absence of applicable international law,
cognizance must be given to the relevant institutions of domestic law,
otherwise, the ICJ would lose touch with reality, particularly as there are
not corresponding institutions of international law to which the Court
could make reference.
Facts: Barcelona Traction is corporation doing business in Spain but was
registered in Canada. It got bankrupt because it issued some bonds
when under its finances it shouldn’t have done so. It was forced to pay
off some bonds which resulted to alleged bankruptcy.
There was a cause of action against Spain because it was an act of the
government of Spain but the problem is when it comes to corporation
when we apply nationality principle as one way to exercise diplomatic
protection, the state applying for diplomatic protection or the supposed
victim which breached the international law must be a national of the
state which will exercise diplomatic protection.
Nationality therefore of this corporation is the place of registration which
is Canada. Canada is unwilling to initiate the claim and so the company
theorized that majority of the stockholders are Belgian nationals. The
issue is whether or not Belgium can exercise diplomatic protection for
and behalf of the injured stockholders.
The ICJ ruled that in the absence of applicable international law, this is
cognizance must be given to the relevant institution of domestic law.
Otherwise the ICJ would lose touch with reality particularly that there
are no corresponding institutions of international law to be its stepping
board as reference.
Q: What general principle of law was applied in this case?
The principle of derivative suit in corporations, applies in situations
where for example, funds of the company have been misused by some
officials. Since these are company assets, the proper party is the
corporation and it has a distinct and separate personality from its
shareholders. But someone should act for and behalf of the corporation
and so this is where the shareholders may institute a suit called
derivative suit for and behalf of the company.
Therefore, it is not the nationality of the stockholders that is
determinative of which state can exercise diplomatic protection but the
nationality of the company because in this case, apparently although
they were Belgian nationals they were simply representing the interests
of the corporation because what they want to initiate is a derivative suit
as we know it here in our jurisdiction.
According to ICJ, the same principle can be applied at the international
level. In the field of diplomatic protection, international law was a
continuous evolution and was called upon to recognize institutions of
municipal law. In municipal law the concept of the company was
founded on a firm distinction between rights of the company and those
of the shareholders, only the company which was endowed with legal
personality to take action in respect of matters that were of corporate
character.
A wrong done to the company frequently caused prejudice to its
shareholders but this did not imply that corporation was entitled to claim
compensation. Whenever shareholders’ interests were harmed by an act
done to the company, it was the company who has to look for
appropriate action.
11 | U N I V E R S I T Y O F S A N C A R L O S
JUDICIAL DECISIONS AND TEACHINGS OF PUBLICISTS
Subsidiary sources
Judicial decisions and teachings of most highly qualified publicists are
only subsidiary sources. Thus, they can only be applied when there are
no clear primary sources of international law.
TN: There are authors who suggest that these are not law creating sources but
merely law determining. Meaning, it is where we determine whether the law exists.
They don’t create the norm, because international law must be created by state
practice and not just by the belief of courts or publicicts. Nonetheless, the court
decisions and teaching can help locate and affirm whether such international law
is indeed practiced by States.
JUDICIAL DECISIONS
Article 59, Statute of the ICJ
The decision of the court has no binding force, except between the
parties and in respect of that particular case.
No stare decisis
There is no stare decisis on ICJ decisions because Art 59 provides that
decisions of ICJ shall apply only between the parties and only in a
particular case. So even if two cases have practically the same issue,
the ICJ is not bound.
ICJ decisions are independent
ICJ decisions are independent of judicial decisions of other newly
created tribunals such as the ICC, etc. for lack of formal relationship
between these tribunals.
TEACHING OF MOST HIGHLY QUALIFIED PUBLICISTS
Not all publicists will qualify as subsidiary source. It should be the “most
highly qualified publicists” and they should have been quoted with
regard to a particular norm in International Law.
OTHER POSSIBLE SOURCES
Other possible sources of international law
A. Acts of International Organizations
B. Soft law
C. Ex aequo et bono
ACTS OF INTERNATIONAL ORGANIZATIONS
Examples: UN and its organs like the General Assembly
SOFT LAW
Guidelines of conduct which are neither strictly binding norms of law nor
completely irrelevant political maxims. Laws which have no binding
effect to the parties. Thus, non-observance by states do not give rise to
liability.
Examples: UN Declaration and most of the conferences found in
International Environmental Law.
TN: A good example of a soft law are UN Declarations. While these declarations
are indeed principles of law, yet states are not bound. They are there as guides
for states in designing and creating their own domestic laws.
Non-observance by States cannot be a basis for liability. Thus if it provides that
you should not discriminate by reason of gender, if the Philippines fails to pass
legislation that prevents discrimination on the basis of gender, or failing to legalize
same-sex marriage, there is no liability there. What you can do perhaps, is to
lobby. That is soft law.
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PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
Soft law Hard law
Guidelines of conduct which are Norms, the non-observance of
neither strictly binding norms of which will result to State
law nor completely irrelevant responsibility
political maxims
Law as it should be in the future Law as it currently stands
Example: UN declarations Example: Treaty, CIL, Jus cogens
norms
EX AEQUO ET BONO
“According to what is right or good”
Art 38 (2) ICJ Statute –
This provision shall not prejudice the power of the Court to decide a
case ex aequo et bono, if the parties agree thereto.
TN: If possible, the ICJ will apply the general concept of fairness, if the parties
agree. Hence, it may be possible where equity may be allowed to override other
rules, provided that the parties agree.
Q: If “equity” is a “general principle of law” and therefore a
source of international law that the ICJ can apply, why require
“agreement” by the parties before “equity” in Art. 38 (2) may
be applied by the ICJ?
Because equity under Art. 38 (2) is not applied as a general principle of
law. The consent of the parties are needed because in reality, the
controversy can be solved by applying treaty law of CIL, but the parties
decides to apply equitable principles instead. It is in such a case that
equity overrides all other laws.
The River Meuse Case
General principle applied: Equity; Estoppel.
A man-made river (canal) was created by Belgium, in violation of the
Treaty. But earlier, Netherlands had also done something similar. The
ICJ ruled that both are equally guilty for violating the Treaty. He who
comes to court must come with clean hands. This is a principle from
municipal courts. But for lack of principle in international law, this was
applied as a general principle of law.
Custom v. Usage/Comity
A. Custom – is a practice that states believe themselves to be under
a legal obligation to follow. (e.g. state immunity). In other words,
practice with opinio juris.
B. Usage – is a practice that states generally follow without believing
themselves legally bound to do so. There is only observance of the
conduct out of convenience and not because they believe it is a
legal obligation. (e.g. alternat – system observed by UN members
in the signing of treaties in the observance of co-equality) In other
words, practice without opinio juris.
Obligations Erga Omnes
Obligations of a state to the international community (e.g. not to
commit/ fail to punish international crimes; not to violate people’s right
to self-determination)
Obligations for which all states have a legal interest in the fulfillment by
reason of the importance of their subject matter to the international
community. It is the duty to refrain from doing, irrespective of any treaty
because the obligatory duty of compliance is understood or being owed
to the international community as a whole.
TN: To determine if there exists such a duty towards the international
community and therefore erga omnes norm is to know whether such
duty addresses a jus cogens norm.
12 | U N I V E R S I T Y O F S A N C A R L O S
Erga Omnes Jus Cogens
Obligation or duty of the state to Non-derogable norm
all other states
Ex. Don’t commit genocide;
Prosecute those who commit Ex. Prohibition against genocide
genocide
PHILIPPINE PRACTICE
PHILIPPINE PRACTICE
Sec 2, Art II, 1987 Constitution
The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of
the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation and amity with all nations.
Generally accepted principles of international law in the
Philippines:
A. Through incorporation – front door; international law becomes
automatically part of the law of the land without any action by
the government.
B. Through transformation – back door; via a positive or
affirmative act by the government transforming the
international law into domestic law.
 By executive action – official pronouncements by the
Executive departments, i.e. issuance by the President,
DFA, etc.
 By legislative action – When Congress pass laws in
conformity with international laws
 By judicial action – judicial decisions as when the
Supreme Court will apply the international law
Kuroda v. Jalandoni
In accordance with the generally accepted principles of international law
of the present day, including the Hague Convention, the Geneva
Convention and significant precedents of international jurisprudence
established by the United Nations, all those persons, military or civilian,
who have been guilty of planning, preparing or waging a war of
aggression and of the commission of crimes and offenses consequential
and incidental thereto, in violation of the laws and customs of war, of
humanity and civilization, are held accountable therefor.
In the promulgation and enforcement of Executive Order No. 68, the
President of the Philippines has acted in conformity with the generally
accepted principles and policies and international law which are part of
our constitution.
USA v. Guinto
The rule that a state may not be sued without its consent, now
expressed in Article XVI, Section 3, of the 1987 Constitution, is one of
the generally accepted principles of international law that we have
adopted as part of the law of our land under Article II, Section 2.
Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of
incorporation. Under this doctrine, as accepted by the majority of states,
such principles are deemed incorporated in the law of every civilized
state as a condition and consequence of its membership in the society
of nations. Upon its admission to such society, the state is automatically
obligated to comply with these principles in its relations with other
states.
In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in parem,
non habet imperium. All states are sovereign equals and cannot assert
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PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
jurisdiction over one another. A contrary disposition would, in the
language of a celebrated case, “unduly vex the peace of nations.”
Holy See v. Rosario
The right of a foreign sovereign to acquire property, real or personal, in
a receiving state, necessary for the creation and maintenance of its
diplomatic mission, is recognized in the 1961 Vienna Convention on
Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines on November
15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted
immunity from the civil and administrative jurisdiction of the receiving
state over any real action relating to private immovable property
situated in the territory of the receiving state which the envoy holds on
behalf of the sending state for the purposes of the mission. If this is
applicable to the envoy, all the more that this rule is applicable to the
sovereign itself, the Holy See.
Reyes v. Bagatsing
The Philippines is a signatory of the Vienna Convention on Diplomatic
Relations adopted in 1961… The second paragraph of its Article 22
reads: “The receiving State is under a special duty to take appropriate
steps to protect the premises of the mission against any intrusion or
damage and to prevent any disturbance of the peace of the mission or
impairment of its dignity.”
The Constitution “adopts the generally accepted principles of
international law as part of the law of the land…” To the extent that the
Vienna Convention is a restatement of the generally accepted principles
of international law, it should be a part of the law of the land.
Q. Which between CIL and treaty law prevails?
In terms of clarity of intent the treaty provides a clearer intent because
for one it is a product of a process or deliberation so what comes out
after the negotiation and ratification should clearly represent the intent
of the parties. And so in terms of clarity in intent the treaty may prevail
over customary international law.
In terms of whether it is more binding, customary international law has
been a product of a long practice and so it may prevail over treaties.
Treaties are binding only in so far as to the parties concerned, however
customary international law are also applicable even those states who
don’t practice or objected to the law except if such state is a persistent
objector/dissentor.
TN: But really, CIL and Treaty can exist alongside each other as was ruled in
Nicaragua v. USA case. And as previously discussed, there is really no hierarchy of
sources, except insofar as jus cogens is concerned.
III – TREATIES
THE VIENNA CONVENTION ON THE LAW OF TREATIES
PRIMER ON VCLT
VIENNA CONVENTION
The Vienna Convention entered into force on January 27, 1980. VCLT
applies only to treaties after entry into force (Article 4)
TN: the entry into force of 1969 VCLT should not be interpreted in any way that
all other treaties not in accordance with the definition of a treaty under VCLT, will
not be binding between the parties concerned. The ILC made a caveat in Article 3
that this definition should not in any way be interpreted as invalidating all other
agreements.
Before the VCLT, the “law of treaties” had been CIL. The VCLT is both a
codification work of CIL and a progressive development of IL.
Articles of VCLT are not impositions or enactment of a higher authority. VCLT is a
codification of CIL but, at the same time, also a codification of a progressive
development of international law because there are provisions which, at the time
13 | U N I V E R S I T Y O F S A N C A R L O S
VCLT was drafted and entered into force, were not yet considered CIL but were
hoped by International Law Commission to develop into CIL.
Q. What is the best source of interpretation of the VCLT?
The travaux preparatoires was carried out by the International Law
Commission (ILC), so its commentary is one of the best sources of
interpretation of the VCLT.
Codification of CIL
The VCLT is a codification of Customary International Laws. An example
of CIL found in VCLT is Art 26 Pacta Sunt Servanda – “Every treaty in
force is binding upon the parties to it and must be performed by them
in good faith.”
Evidence of progressive development of CIL
The VCLT is also an evidence of the progressive development of CIL.
Example of a progressive development of CIL is Article 9: Adoption of
the Text.
1. The adoption of the text of a treaty takes place by the consent of
all the States participating in its drawing up except as provided in
paragraph 2.
2. The adoption of the text of a treaty at an international conference
takes place by the vote of two thirds of the States present and
voting, unless by the same majority they shall decide to apply a
different rule.
2 ways to adopt a treaty:
A. Unanimity rule – If there are 5 states adopting the treaty not in
an international conference, then that should be the consent of
the states. If States A, B, C and D decided to enter into a treaty
among themselves, and they are parties to VCLT, the required
vote for adoption would be unanimous.
B. 2/3 rule – In an international conference, asking for a unanimous
vote would not be feasible. As a matter of practice, 2/3 of states
present and voting, unless they would agree to adopt another
voting requirement.
Non-retroactivity of the present convention
Article 4, VCLT – Without prejudice to the application of any rules set
forth in the present Convention to which treaties would be subject under
international law independently of the Convention, the Convention
applies only to treaties which are concluded by States after the entry
into force of the present Convention with regard to such States.
Entry into force: January 27, 1980.
APPLICATION OF VCLT
APPLICATION OF THE VCLT
Q. May the rules found in the Vienna Convention on the Law of
Treaties (VCLT) be applied in the following?
A. A dispute involving a “treaty” between State A and the IMF-World
Bank
B. A dispute involving a 1960 treaty between State A and State B
C. A dispute involving a 1995 treaty between State A and State B
which are not parties to the VCLT
Situation A: A dispute involving a “treaty” between State A and
the IMF – World Bank
Brief answer: Yes. The rules, not really the VCLT provisions themselves
that are already CIL can apply. VCLT is just a codification of CIL, so
some CIL were already existing or recognized even before the VCLT
entered into force.
DBL’s discussion:
This should be treated carefully because the question states “may the rules found
in the VCLT be applied” and not “may VCLT be applied”. If you say “rules”, you
have to first examine what particular rule are you going to apply to the “treaty”
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PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016

between State A and the IMF-World Bank. If you look at VCLT, it is a codification
of customary international law on the law of treaties.
But, for example, under Article 65 on fundamental change, the term fundamental
change has its roots in the customary international law on the law of treaties called
“rebus sic stantibus”. The convention does not mention that it is rebus sic stantibus
but that is how it is mentioned in the VCLT. The principle of rebus sic stantibus,
while it is CIL on the law of treaties, is also a principle that will apply even in
domestic jurisdiction.
In our civil law, for example, we know that a party to a contract may be exempt
from complying with the provisions or obligations of a contract, if there is
fundamental change of circumstance where it becomes burdensome on the part
of the party. This can be applicable to the “treaty” between State A and IMF-World
Bank to the extent that the “treaty” could be considered, at the very least, an
agreement, contract, stipulation between two entities. It may not deem proper
right away to call it a treaty, but there is already a convention on treaties governing
states and even non-states such as international organizations.
Elements:
A. An international agreement
B. Concluded between States
C. In written form
D. Governed by International law
TN: VCLT’s definition of a treaty is not all-inclusive. It is just a definition of the
kind of treaty that will be governed by the VCLT. As established in the case of
Qatar v. Bahrain, even agreements that are not in conformity with the definition
of a treaty in the VCLT, may actually be binding, especially so that the VCLT
provided for an important provision in Article 3, in relation to the definition of a
treaty. It states that:
The fact that the present Convention does not apply to international
agreements concluded between States and other subjects of international
law or between such other subjects of international law, or to international
agreements not in written form, shall not affect the legal force of such
agreements.

We’ll be studying treaties that will be governed by VCLT. The word treaty can
actually exist in other agreements not involving states. It is a misnomer to say that
when you say treaty, it is something agreed upon by states. That it should be
agreed upon by states is only a requirement for the VCLT to be applicable. It is
not really the characteristic of a treaty. That is only an element found in the
definition of treaty in the VCLT for purposes of whether applying VCLT or not.
Situation B: A dispute involving a 1960 treaty between State A
and State B
Brief answer: Yes. A rule embodied in the VCLT may already be a CIL
even before the VCLT codified it, notwithstanding the fact that the VCLT
provides for non-retroactivity (covers only from 1980 onwards). Hence,
if a rule had already been universally practiced and accepted even
before 1980, and is already existing at the time of the dispute, then such
could be applied.
When confronted with a question of “what is a treaty”, you may
answer in the following manner:
A treaty, for purposes of the application of the provisions of VCLT, is
(definition of treaty in VCLT). There are international agreements which
can still be called treaties between non-state actors but governed by a
different convention. Example is Convention of 1986 on Treaties entered
into by states and international organizations and as between
international organizations. They are also called treaties but beyond the
provisions of VCLT.
Treaties come in various names
Agreement, pact, understanding, protocol, charter, statute, act,
covenant, declaration, engagement, arrangement, accord, regulation
and provision.

DBL’s discussion: Convention The output treaty that is a result of an initiation by an

The date is relevant because VCLT entered into force on January 27, 1980 (it is a International Commission
product of a long process which started in 1969). If we talk about the “rule” being Protocol Amendment to a treaty
made applicable to this kind of treaty, it will matter if the rule is of CIL character Charter If the treaty operates to create an international
or not. organization (e.g. WTO Charter, UN Charter)
Statute If the nature of a treaty is to create a court (e.g.
If the rule is of customary international law character, it may actually be applied Statute of the ICJ, ICC – Rome Statute)
not because VCLT is given retroactive application, but because as ruled in
Declarations General principles subject to specification later on
Nicaragua v. US, a customary international law will not lose its character of being
and Accords
CIL even if it had been codified in a treaty or convention. If rule found in VCLT has
not attained CIL status, it cannot be applied to the 1960 treaty between State A TN: Treaties may be codifications of already existing CIL or are themselves
and State B. evidence of the practice of an emerging customary international law especially in
the case of multilateral treaties.
Situation C: A dispute involving a 1995 treaty between State A
and State B which are not parties to the VCLT TREATY LAW V. LAW OF TREATIES
Brief answer: Yes, the basis may not be the VCLT, but the CIL embodied
in it. CIL applies to all States whether VCLT party or not. Treaty Law Law of Treaties

DBL’s discussion: Talks about body of rules applicable

This is another situation where even if they are not parties and even if VCLT Pertains to internal substantive to treaties in general without
entered into force as between the parties, both states can still be governed by CIL. content of treaties looking at the substance or
Even if we talk about pacta sunt servanda, which is CIL and, therefore, even if substantive content of a treaty
they are not parties to VCLT, these states are still bound by it.

SUMMARY: Between State A and State B, if Whether or not a fundamental

Rules found in VCLT which have achieved customary international law character State A wants to withdraw from
may be applied in treaties concluded before the VCLT entered into force and even the treaty and there are agreed
between states and non-states, parties or not to the VCLT. procedure on how to do it as
contained in the treaty between
TREATY DEFINED State A and State B, the resolution
of that issue would be the
VCLT DEFINITION OF TREATY province of treaty law
change will entitle a state from
asking that the provisions of a
treaty be suspended for a time
being and there are conditions
before a state be allowed to do
that, is a question governed by the
law of treaties

TREATY DEFINED
A treaty per VCLT 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.”

14 | U N I V E R S I T Y O F S A N C A R L O S AWIT l ADLAWON l DENIEGA l ESTOY l FLORO l IBANEZ l TARAN

PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
Q: Is an agreement which has the nature of a treaty but is not
reduced to writing a “treaty”? Is it binding on state parties to
the agreement?
Qatar v. Bahrain
Facts: This involves a dispute between Qatar and Bahrain on the
sovereignty over certain islands and shoals, and the delimitation of
maritime areas of the two states. Saudi Arabia tried to mediate in the
settlement of the dispute and gave proposal to refer the disputed
matters to ICJ.
The matter was brought up during the annual meeting of Cooperation
Council of Arab States of the Gulf in 1990. Following that meeting,
Foreign Ministers of Bahrain, Qatar and Saudi Arabia signed Minutes
wherein it said that the parties may submit the matter to ICJ. The 1990
Minutes has been Qatar’s basis for finding jurisdiction of ICJ over the
matter which was contested by Bahrain saying that the 1990 Minutes do
not constitute a legally binding instrument. It maintains that the Minutes
were no more than a simple record of negotiations.
Held: The 1990 Minutes constitute an international agreement, hence,
a legally binding instrument. It includes reaffirmation of obligations
previously entered into. It is not a simple record. On the contrary, it
enumerates the commitments to which the parties have presented. They
thus create rights and obligations in international law for the parties.
Four elements of a Treaty:
1. It is an international agreement
2. Entered into by states
3. Written form
4. To be governed by international law
It is not a treaty for purposes of applying the VCLT. But it may be a
treaty, nevertheless. There are conventions on treaties also not entered
into between states. But whether it is binding or not, in Qatar v. Bahrain,
even if it is not in writing or reduced to writing in the form of a treaty,
it may still be binding. In Bahrain v. Qatar, the Minutes was in writing
but not in the form of treaty and was duly signed by the parties. It may
not be governed by law of treaties because it is not reduced into writing
in the form of a treaty under VCLT, but it is still binding.
In the Nuclear test case, even unilateral declaration of an official as to
a particular conduct of a state may bind the state even if it is not in
writing. This is the unilateral conduct principle of international law.
LAW-MAKING TREATY V. CONTRACT TREATY
Law-making treaties Contract treaties
Operate as binding rules, similar Not sources of international law,
to statutes but merely legal transactions
Imposes the same obligations on
all the parties to the treaty and
Treaties which resemble contracts
seek to regulate the parties’ (reciprocal)
behaviour over a long period of
time
Purpose is to conclude an Observance of the contract
depends on both contracting
agreement on universal
substantive legal principles; to parties (performance of one
depends on the other’s) and their
regulate conduct
willingness to observe
Lawmaking treaty
A. Governed, intended to be governed by international law.
B. Regardless of whether the other party performs the obligations
incumbent upon that party, the other party is still duty bound. The
only situation where it will not be duty bound is when it invokes
15 | U N I V E R S I T Y O F S A N C A R L O S
one of the grounds precluding state responsibility, like a valid
countermeasure.
Example: State would say that it will not perform its obligations because the other
party breached the obligation. But the non-performance was not simply because
of the breach but because it is the countermeasure. When you invoke
countermeasure, you’re treating the treaty as a law-making treaty because
invoking it involves invoking the provisions of the VCLT.
Contract treaty
A. Has a consideration
B. Has an element of reciprocity
C. Short-lived or temporary
D. Could be governed by another regime, not necessarily public
international law, but it could be domestic law, depending on
what’s found in the treaty.
E. Performance of an obligation is based upon the performance of the
obligation of the other. It is similar to a contract
Example: State would say that it is not bound to perform its oath because the
other party did not perform its oath. Since that state is invoking reciprocity,
chances are it may be characterized as contract treaty.
Q. Are contract treaties still covered by VCLT?
The term law-making treaties or contract treaties are used by authors
to distinguish between treaties that cannot be the source of international
law or cannot be a law that will generate international law. However,
the ILC is not definite on whether the definition should apply to both
law-making treaties and contract treaties. Nevertheless, it would be best
to assume that the definition of a treaty in the VCLT should be a treaty
that refers to law-making treaties since it requires the element that it
should be governed by international law.
Q. Australia entered into an “agreement” with the Philippines
stipulating that the Australian Naval Forces leased a Philippine
Government’s patrimonial property in Subic for its naval and
military exercises in the Philippines for 5 years in the amount
of P10M. Is this a “treaty”? Why or why not?
For purposes of applying the VCLT, the agreement is not a treaty
because it does not satisfy the 4th element that it has to be governed by
international laws. Although it can be called a bilateral treaty, the rules
that should apply in this case are municipal laws of the Philippines,
unless this agreement specifically provides that it will be governed by
international law.
In this case, Civil Code may apply.
Reasons why it is not governed by international law:
A. The term is five years – which means it is temporary
B. 10 million is received in exchange of allowing the use of patrimonial
property – this means it is reciprocal obligation which means a
particular obligation is to be performed and therefore the treaty
will generate a conduct only on the basis of reciprocity
That is what we call contract treaty. This is not the kind of treaty to be
governed by international law because by the nature of the contract, it
is to be governed by municipal law, not unless parties provide that it will
be governed by international law since it is a contract treaty anyway.
FORMATION OF TREATIES
FORMATION OF TREATIES
FORMATION OF TREATIES
A. Proposal to draft a treaty
B. Negotiation and drafting of the terms
C. Adoption and Authentication of the text of the treaty by the
negotiating states
D. Signature/expression of consent to be bound by the treaty by the
individual states
E. Ratification of the treaty by the individual states
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F. Exchange of Instruments of Ratification and Entry into force of the
treaty
G. Accession to the treaty by states wishing to join after its entry into
force, if any.
PROPOSAL TO DRAFT A TREATY
PROPOSAL TO DRAFT A TREATY
Formation of a treaty can be initiated in various ways. A treaty can be
proposed in the following manner:
1. It can be initiated by one state asking another state that they will
enter into a treaty. There are two possibilities:
A. They will meet and try to negotiate the specific provisions
of the treaty, or
B. The other state may simply be asked to sign a ready-made
treaty by the other state
2. A treaty may be formed because of an international conference
like international conferences of the members of ASEAN states
(10 members), Conference or a Summit of Southeast Asian
nations, conference by members of NATO (North Atlantic Treaty
Organization) for mutual military action. In these conferences,
there are three possibilities:
A. One state may propose that a treaty may be drafted and
they will agree on the voting later on; or
B. A member of UN, in a plenary, will propose for a drafting
of multilateral treaty or convention and if General Assembly
will approve the motion, normally, the name of the treaty
will carry the word convention. Treaties that carry the name
conventions are UN-initiated.
C. A non-governmental organization may draft a convention
or treaty and submit it either to a conference or to a state
and offer it to other member states for signature and
discussion. Examples are the 1949 Vienna conventions and
its three Protocols in 1977 and in 2005, which have been a
product of the work of ICRC (International Committee on
the Red Cross). It was initiated/drafted by ICRC (a NGO),
submitted to the plenary and then UN agreed to make it a
treaty/convention and it was approved.
Q. Is there legal significance as to how it was initiated?
Yes. For example, in the interpretation of the treaty, it is important to
know how it was initiated. If it was initiated by one state and the other
state was simply asked to agree, there’s a possibility to argue that it
should be interpreted as against the initiating state because it was
drafted unilaterally. If the treaty was initiated in an international
conference, the adoption of the text of the treaty would require 2/3
vote, unless there is a different voting required. If not in an international
conference, vote required is unanimity.
NEGOTIATION AND DRAFTING OF THE TERMS
NEGOTIATION AND DRAFTING OF THE TERMS
Q. What is the importance of knowing what happened during
the negotiation?
It is important to know what happened during the negotiation for the
purpose of knowing the intent. The process of negotiation will reveal the
object and purpose of the treaty for purposes of arguing along
teleological approach. It may also reveal the intent of the parties and
the context under which the treaty had been negotiated because you
want to use the context in interpreting the letter/text of the treaty.
16 | U N I V E R S I T Y O F S A N C A R L O S
Q. What is the difference between treaty interpretation and
constitutional interpretation?
In constitutional interpretation, the first step to interpret a treaty is going
through the text, within the words, their plain and ordinary meaning
because of the assumption that when the framers used the words or
phrase, they are already mindful that these words and phrases will be
analysed, read by ordinary people and not just lawyers and judges that’s
why we give words its plain and ordinary meaning.
It is different in international law. The Textualist approach is a different
textualist approach. It is text + context (circumstances under which the
treaty has been negotiated). Text and context cannot be separated.
General rule of interpretation can be found in Article 31:
A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose.
EXCHANGE OF INSTRUMENTS OF RATIFICATION
EXCHANGE OF INSTRUMENTS OF RATIFICATION
Ratification is to be understood in two contexts: Domestic level and
International level.
Domestic level
It may be ratification by the President alone or it may be ratification by
the concurrence of Congress, if bicameral, by the House of Reps,
depending on the domestic law of the state concerned.
International level
It can be done in two ways:
1. Exchange of instruments of ratification
2. Deposit the instruments of ratification to a designated depository
– Usually done in multilateral treaties because it will be hard to
exchange instruments if there are many parties
TN: Designated depository is usually the Secretary of UN
It is important to determine whether it is ratification in the domestic or
international level for the purpose of knowing the exact and precise
moment when the treaty has entered into force. If the treaty provides
that it will enter into force upon ratification by the 61st signatory and
that ratification that referred to is ratification at the domestic level, upon
proof of ratification at the domestic level, then it has entered into force
among all of them.
Example 1:
100 signatories and the treaty says that it will enter into force as
between all signatories when the 61st signatory ratifies it. Upon 61st
ratification, treaty entered into force as among the 100 even if others
have not yet ratified the treaty. That is from the perspective of
international law.
Example 2:
Treaty says that it will enter into force upon the deposit of the
instruments of ratification, meaning, it will really have to wait for all to
deposit their ratification instrument with the designated depository. But
that is seldom adopted, otherwise the treaty will hardly enter into force.
ACCESSION TO THE TREATY
ACCESSION TO THE TREATY BY STATES WISHING TO JOIN
AFTER ITS ENTRY INTO FORCE
There are states which did not participate in the negotiation but would
want to become party and there might be provisions on accession. The
form of accession (as to how the new state will become a party to the
treaty) will also be provided for.
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PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
CAPACITY TO ENTER INTO TREATIES
CAPACITY OF THE STATE TO ENTER INTO TREATIES
CAPACITY TO ENTER INTO TREATIES
Article 6, VCLT – States have the inherent capacity to enter into treaties.
TN: This is a customary international law
DBL’s discussion:
According to ILC, it is not even necessary to put in Article 6 that states have
inherent capacity to enter into treaties. Other than 1933 Montevideo Convention
on the rights and duties of states, the moment a group of individuals will qualify
as a state, one of the inherent rights of a state is the right to enter into diplomatic
legation/diplomatic relation. This includes the right to establish embassies. There
are different conventions on the matter, also codification of international law.
There is Vienna Convention on Diplomatic Relations and Vienna Convention on
Consular Relations.
Q. What is the difference between diplomatic relations and
consular relations?
A. Diplomatic relations – established for purposes of regulating the
political/governmental relationship between the two states.
Ambassadors and members of the diplomatic mission are in foreign
territories to protect the political and governmental interests of the
sending state.
B. Consular relations – established for non-governmental functions of
the state, i.e. commercial and private functions. Example, for
marriage abroad, one is required to get a certificate showing that
you have the capacity to enter into such a relation. Because the
right to contract marriage is usually governed by national law.
DIPLOMATIC LEGATION
Since states are juridical entities, the formation of treaties will have to
be done by their agents who are individuals.
Q. Who are authorized to represent the state?
General rule:
One who has “Full Powers”
"Full powers" means a document emanating from the competent
authority of a State designating a person or persons to represent the
State for negotiating, adopting or authenticating the text of a treaty, for
expressing the consent of the State to be bound by a treaty, or for
accomplishing any other act with respect to a treaty.
TN: When you say full powers, it must refer to all stages that’s why it’s called full.
The powers in pleins pouvoirs must be stated expressly as to cover authority to
negotiate, adopt, authenticate, expressing the consent and accomplishing any
other act, if any. So, it must be specific on what power because it is possible that
one bringing the pleins pouvoirs is only limited to a particular stage. That’s why
it’s important to know the different stages.
Exceptions:
Article 7 (1) (b), VCLT –
If it appears from the practice of the States concerned or from other
circumstances that their intention was to consider that person as
representing the State for such purposes and to dispense with full
powers.
Article 7 (2), VCLT –
A. Heads of State, Heads of Government and Ministers for Foreign
Affairs, for the purpose of performing all acts relating to the
conclusion of a treaty
B. Heads of diplomatic missions, for the purpose of adopting the text
of a treaty between the accrediting State and the State to which
they are accredited
C. Representatives accredited by States to an international
conference or to an international organization or one of its organs,
17 | U N I V E R S I T Y O F S A N C A R L O S
for the purpose of adopting the text of a treaty in that conference,
organization or organ.
TN: For B and C, full powers is still needed in order to represent the state
for all other stages other than adoption of the text of the treaty.
TN: This becomes implied authority because there is some sort of representation
that one had been duly authorized. It may be the case of one appearing before an
international conference for several stages of the formation process and so even
in other conventions or treaties, he had represented the state. It can be impliedly
assumed that he has the authority. Article 7 (2) enumerates three groups that are
deemed to have been authorized but there is a group authorized for all stages and
there are groups that are authorized only for particular stages.
Q. What is the effect of acts done by unauthorized persons?
An act relating to the conclusion of a treaty performed by a person who
cannot be considered under article 7 as authorized to represent a State
for that purpose is without legal effect unless afterwards confirmed by
that State.
CONCLUSION AND ENTRY INTO FORCE OF TREATIES
ADOPTION OF A TEXT OF TREATY
ADOPTION OF A TEXT OF TREATY
Article 9, VCLT.
1. The adoption of the text of a treaty takes place by the consent of
all the States participating in its drawing up
2. In case of treaty at an international conference, it takes place by
the vote of 2/3 of the States present and voting, unless by the
same majority they shall decide to apply a different rule.
Q. What is the legal significance of adoption of the text of
treaty?
After adoption of the text, the treaty will be prepared in final form, at
which point it is usually “authenticated”. (See Art 10, VCLT)
The adoption of the text of the treaty governs the subsequent stages in
the treaty formation. In other words, the moment the treaty is adopted,
then the conditions of that treaty will govern the subsequent stages.
For example, after adoption, states will express their consent to be
bound. And so we ask the question, how do they do this? We now look
at the text of the treaty as adopted. The text of the treaty will provide
the manner of expressing the consent to be bound.
When will it enter into force? We need to look at the text and provisions
adopted and that is how we can tell when it enters into force in a
particular way or time. In the absence of an agreement, for period of
entering into force, it is assumed that it is the time when all the parties
give their unanimous consent.
The provisions for the consent to be bound could be through signature,
exchange of instruments constituting a treaty, ratification, acceptance,
the process for accession for third parties.
CONSENT TO BE BOUND BY A TREATY
CONSENT TO BE BOUND BY A TREATY
Article 11, VCLT. Consent of a State to be bound by a treaty may be
expressed by:
A. Signature
B. Exchange of Instruments
C. Ratification
D. Acceptance
E. Approval
F. Accession
G. Other means if so agreed
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TN: Ratification occurs only when instruments of ratification are exchanged
between the contracting states and are deposited with the depositary. (Art 2 (1)
(b) and 16)
By accession, a third state which did not take part in the negotiation consents to
be bound by the treaty and ratified. Accession is possible only if it is provided for
in the treaty.
Q. The moment they express their consent to be bound, are
they already bound by the substantive provisions of the treaty?
Not yet, but because of their consent, they are obliged not to defeat the
purpose of the treaty unless the text provides that the expression of
consent to be bound signifies the entry into force. In which case, they
are bound by the provisions. Otherwise, we look at the text of the treaty.
In the meantime, they are required to observe the mandate in Article
18 to refrain from acts which would defeat the purpose of the treaty.
Article 18, VCLT- Legal obligations before treaty enters into force
A State is obliged to refrain from acts which would defeat the object and
purpose of a treaty when:
A. It has signed the treaty or has exchanged instruments constituting
the treaty subject to ratification, acceptance or approval, until it
shall have made its intention clear not to become a party to the
treaty, or
B. It has expressed its consent to be bound by the treaty, pending
the entry into force of the treaty and provided that such entry into
force is not unduly delayed.
Q. What is meant by “acts which defeat the object and purpose
of the treaty”?
A good threshold to follow is that put forward by Anthony Oust. The act
must render the State incapable in performing the object and purpose
of the treaty when it enters into force.
A good example is a treaty which mandates reduction of carbon
emissions by 20%. While the treaty is not yet in force, State A who has
a current carbon emission of 100% cannot increase its emissions to
150%. Otherwise, the same will defeat the object and purpose of the
treaty. When the treaty enters into force, State A would have to just
reduce its emissions to 130%, instead of the 80% originally
contemplated.
Q. Is the mere non-conformity already considered defeating
the object and purpose of the treaty?
No. Mere non-conformity with the mandate of the treaty may not
necessarily be a violation of Article 18. The act must render the State
incapable in performing the object and purpose when the treaty enters
into force.
ENTRY INTO FORCE
ENTRY INTO FORCE
Art 24 (2), VCLT – As a rule, a treaty enters into force as soon as all
negotiating states have expressed their consent to be bound by it,
unless otherwise stipulated in the treaty.
TN: Look at the text of the treaty first. If there is no stipulation as to the
date when it enters into force, the default rule applies – when all states
have expressed their consent to be bound.
Effects of a treaty after entry into force
A. Pacta sunt servanda (Art 2, UN Charter) – Every treaty in force is
binding upon the parties to it and must be performed by them in
good faith. (exceptions: Rebus sic stantibus and jus cogens)
TN: See discussion on relationship between pacta, rebus and jus – p19 of
this reviewer
B. A party cannot invoke a provision of its domestic law to evade
compliance (Art 27)
18 | U N I V E R S I T Y O F S A N C A R L O S
C. Treaties do not prima facie operate retrospectively, unless a
different intention appears (Art 28)
D. A treaty cannot prejudice third states without the latter’s express
consent. (Arts 34, 35)
RESERVATION
RESERVATION
Q. What is meant by reservation?
Article 2 (1)d of the VCLT – A unilateral statement, however phrased or
named, made by a State, when signing, ratifying, accepting, approving
or acceding to a treaty, whereby it purports to exclude or to modify the
legal effect of certain provisions of the treaty in their application to that
State.
If you want to study further, I suggest you read the 2011 International
Law Commission Guide on the Practice of Reservations to Treaties which
contain specific provisions on how to interpret reservations.
DBL’s discussion on state succession
Expect in VLCT that the treaties here are entered into by states, in ILC, non-state
actors such as international organizations which enter into treaties are considered.
In VLCT, the definition only covers signing, ratifying, accepting, approving or
acceding but the 2011 ILC guide expanded it to situations where reservations are
made. This is when a successor state notifies the other party that it is continuing
and makes a particular reservation.
When we study state succession, one privilege of a successor state is not to accept
treaties entered into by predecessor state. When US succeeded Spain in relation
to Philippines, US announced that it will not honor the treaties entered into by
Spain affecting Philippines prior to its succession. This is the principle of tabula
rasa or the clean slate doctrine. That is only applicable to state succession.
There is a different meaning to government and state succession which we will
discuss later on. It may be that there is only a government succession and not a
state succession. There is succession when there is change in sovereignty. There
will be different rules because we will distinguish peaceful and violent transition of
government. We will talk about this later.
So this is a good development in studying reservation because a successor state
can make a reservation. Even before 2011, there is already a mention of successor
state to make a reservation. It is not any more take it or leave it on the part of
successor state.
Problem:
States A, B, C, D and E entered into a treaty. State E made a reservation
as regards one particular article while all the rest agreed to the treaty
without reservations.
Is State E considered a party? If one opposes the reservation but the
others accepted it, will it matter? Does it require unanimity?
The nature and the date of the treaty are relevant.
Nature
There are treaties which do not allow reservations. When the treaty itself
provides and for those kinds of treaties dealing with human rights as in
the case of the Genocide Convention.
Date
The date is also equally relevant to determine whether the rule in the
Genocide Convention Advisory Opinion in 1951 will apply. Because
before 1951, the rule was unanimity. All must accept, otherwise the
reserving state will not become a party to the treaty.
The Genocide Convention opened a new paradigm as far as reservation
is concerned. The circumstances when the Genocide Convention was
negotiated and then ratified were vital in a change from the rigid
unanimity rule to a more liberal rule on reservation.
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Genocide Convention
Facts: There were acts of genocide prevalent at that time. The
convention was initiated by the United Nations and it involved a ius
cogens norm and this propelled a more liberal approach. The Convention
did not permit any reservation and so states questioned this saying that
there should be reservations.
One of the issues here is the relation of the state which made a
reservation to other states and its legal effects.
The Genocide Convention prohibited genocide and provided that it
would be declared a crime. Not allowing reservation will promote the
purpose and objective of the treaty. Between the unanimity and the
liberal approach in the advisory opinion, which will promote the purpose
of the treaty?
The problem with the unanimity rule is that if one of the negotiating
states objects to the reservation of a state, the reserving state does not
become a party to the treaty. The moment the reserving state commits
genocide, the state cannot be charged with state responsibility under a
treaty but only under customary international law regime.
So it is important to take note of the date, whether it happened before
or after the advisory opinion on the genocide convention. The VCLT now
concurs with the advisory opinion. In VLCT, you do not need to
distinguish if it involved genocide or jus cogens norm.
In studying reservations, you should be able to answer these questions:
1. What is “reservation”?
2. How is this distinguished from “declaration” or “understanding”?
3. When is reservation allowed? Not allowed?
4. Can a reserving State be regarded as being a party to the treaty
while still maintaining its reservation, if the reservation is objected
to by one or more of the parties to the treaty but not by others?
5. If the answer to the above question is yes, what is the effect of the
reservation as between the reserving State and:
a. The parties which object to the reservation?
b. Those which accept it?
Q. When is reservation not allowed?
Article 19, VCLT – A state may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a reservation unless:
A. The reservation is prohibited by the treaty
B. The treaty provides that only specified reservations, which do not
include the reservation in question, may be made
C. The reservation is incompatible with the object and purpose of
the treaty.
DBL’s discussion:
It is not allowed if the reservation is prohibited by the treaty. The ICCPR
is a classic example of a treaty not allowing reservation. The Rome
Statue for example does not allow reservations.
What happened with the US was that after it signed, it withdrew its signature
because it cannot make a reservation. US entered into an exchange of instruments
between the US and other states where they agree that Americans accused of
committing acts in violation of the Rome Statute such as genocide, crimes against
humanity, war crimes and acts of aggression, may not be surrendered by the state
where the American is found without the express consent of the US and they
signed that executive agreement.
The objection in the US of the Rome Statute was the mandatory characteristic of
the turnover of an accused of a crime found in the territory of another state, there
is the duty to surrender. The US is concerned because of the many Americans
found all over the globe. The US was bold enough to enter into non-surrender
agreements with states. After all, it withdrew its signature and expressed not to
be bound.
19 | U N I V E R S I T Y O F S A N C A R L O S
Two questions are posed in the reservation of the genocide
convention:
1. Can a reserving state be considered a party to the convention
while still making the reservation when such was objected to one
or more parties to the convention but not by others?
2. Assuming the answer is affirmative, what is the effect of the
reservation as between the reserving state as between parties
accepting and those objecting it?
The voting was not conclusive, it was 7-5.
Answer to the first question:
The reserving state may be regarded as a party to the convention if the
reservation was compatible with the object and purpose of the
convention.
DBL’s discussion: Let’s go back to our problem. Assume that A and B accepted the
reservation of State E, C and D objected, what is the answer to the question? Can
State E become a party to the treaty? Yes. State E can become a party to the
treaty despite lack of unanimity provided that the reservation is not incompatible
with the object and purpose of the convention.
Answer to the second question:
Each state objecting to the reservation will or will not, on the basis of
the individual appraisal with the limits of the criterion of the object and
purpose of the convention, consider the reserving state to be a party to
the convention. If the objector deems the reservation as incompatible
with the object and purpose, it can consider the reserving state as not
a party to the convention.
DBL’s discussion: Therefore, that reserving state may not as well demand from the
objecting state compliance of the article subject of the reservation. Treaties here
dealt on the threshold that it should depend largely on the evaluation of the
objector whether or not the reservation is compatible with the object and purpose
of the convention and this is another area where it becomes more subjective rather
that objective. This suggests that we cannot objectively determine the object and
purpose of the convention. Apparently that is the case here.
Regardless of the basis for the objection, whether anchored on other grounds
aside from judging if such reservation is incompatible to the object and purpose
of the treaty, still the reserving state shall not be considered a party to that
objecting state. This is on the basis of the need to uphold sovereignty of states.
What governs treaty is consent precisely because we are dealing with sovereign
states. That is the approach even to objections to reservations not based on
compatibility or incompatibility.
REGISTRATION WITH THE SECRETARIAT
REGISTRATION WITH THE SECRETARIAT
Article 102, United Nations Charter –
1. Every treaty and every international agreement entered into by any
Member of the United Nations after the present Charter comes into
force shall as soon as possible be registered with the Secretariat
and published by it.
2. No party to any such treaty or international agreement which has
not been registered in accordance with the provisions of paragraph
1 of this Article may invoke that treaty or agreement before any
organ of the United Nations.
Q. What happens if this is not complied with?
The treaty is still valid, only that it cannot be invoked in any of the organs
of the UN. Thus, if you charge the state of committing an internationally
wrongful act and you charge it with state responsibility, you go to ICJ
but because the treaty is not registered, you cannot do that.
However, never think that non-registration renders a treaty
unenforceable. If the treaty has compulsory arbitration laws, one party
may compel the other to submit it for arbitration but you do not need to
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go to the UN. It is still enforceable. It is only unenforceable with respect
to UN organs.
Relationship between pacta sun servanda, rebus sic stantibus
and jus cogens:
When a treaty enters into force, Art 26 of the VCLT comes into play:
pacta sunt servanda, compliance in good faith. We have to relate this
principle to rebus sic stantibus now known as fundamental change of
circumstance under VCLT and the principle of Jus cogens.
Pacta sunt servanda is the general rule the moment the treaty enters
into force. For a state not to be bound, as exception to pacta sunt
servanda, you may invoke rebus sic stantibus. The relationship between
pacta sunt servanda and jus cogens is regardless of level of consent
given by parties, if the provision of the treaty contravenes jus cogens,
the provision in treaty is invalid despite pacta sunt servanda.
While a signatory to the treaty may not be bound yet by the substantive
content of a treaty, it is, however, mandated by CIL in Article 18 of VCLT
which mandates that any state which has signed the treaty is also duty
bound to refrain from performing any acts that will defeat the object and
purpose of the treaty until it expresses its intention not to be bound or
decided to withdraw or not become a party to the treaty.
There is a period from signing to becoming a party, during which time, there
is CIL governing all signatories. What is not clear though is the threshold as
to when a particular act defeats the object and purpose of the treaty and
there should be no fixed rule on the matter because:
a. It varies from one treaty to the other. It depends on the nature of the
treaty, the difficulty of locating the object and purpose of the treaty.
b. There is a need to analyse the degree of the act performed by the
signatory state.
No specific rule but the threshold is it should not defeat the object and
purpose of the treaty until it has expressed its intention not to be bound.

SIGNATORY V. PARTY B. Party – pacta sunt servanda applies. Party is obliged to comply with
the substantive obligations found in the treaty.
SIGNATORY V. PARTY
As to manner of withdrawal from the treaty
Q: What is the difference between a “signatory” from a “party”
to a treaty? A. Signatory – can withdraw anytime. There no required procedure
Where parties to the treaty agreed that the method of expressing nor grounds.
consent to be bound is mere signature, there is no distinction between TN: There is no required procedure as to how a signatory to a treaty
a signatory and a party. expresses its intention not to be bound. Example is when US withdrew from
the Rome Statute in 2002. There was no required form for as long as intent
Where, however, the parties to the treaty agreed that signing is one and not to be bound by the treaty is expressed.
expressing consent to be bound may be done in other forms other than
B. Party – pacta sunt servanda applies therefore, withdrawal must be
signing, which could be in the form of ratification, approval or accession,
in accordance with the treaty exit rules. Otherwise, it can invoke
exchange of instruments of ratification, and any other means that the
CIL such as impossibility of performance, rebus sic stantibus,
party could agree – In this case, signatory is different from a party in
material breach.
the following manner:
A. As to the meaning In the law of treaties, it is what we call Exit Provisions and there are grounds
B. As to the legal obligations which would allow withdrawal from a treaty.
C. As to manner of withdrawal from the treaty
When a state, party to a treaty, wants to get out of the treaty, it can be done
in at least two ways:
Signatory Party
 Without a ground – there are exit provisions in the treaty which allow a
A state signed the treaty party to get out without necessarily invoking a ground if the parties
A state which has
but the signature is not a agree that there is such a way. This would usually require some
As to meaning consented to be bound and
form of expressing minimum period of notification. If there is no stipulation to the contrary,
for which the treaty is in
consent to be bound. normally, a state is required to notify at least 12 months before
force
withdrawing, renouncing, or getting out of the treaty.
As to legal Obligation not to defeat
the purpose and object of Pacta sunt servanda applies  With a ground – another way of getting out of the treaty without
obligations
the treaty. (Art 18 VCLT) invoking the exit rules is to get out of the treaty on the basis of certain
grounds already recognized by the VCLT and CIL. It is VCLT and CIL
As to manner Can withdraw anytime. Withdrawal must be in because VCLT is not just a codification of CIL, but also an evidence of a
of withdrawal There is no required accordance with the treaty progressive development of CIL.
from the treaty procedure nor grounds. exit rules or CIL rules.
APPLICATION OF TREATIES
DBL’s discussion:

As to the meaning TERRITORIAL SCOPE OF TREATIES

A. Signatory – signatory pertains to a state where its representative,
duly authorized to do so, has signed the treaty and the signature
is not a form of expressing consent to be bound.
B. Party – party signifies more than signing. A state becomes a party
when it has expressed its consent to be bound through forms
agreed upon other than signature, and where the treaty already
enters into force insofar as state party is concerned.
As to the legal obligations
A. Signatory – a State which signed but is not yet a party to a treaty
which has not yet entered into force has the obligation not to
defeat the purpose and object of the treaty.
TERRITORIAL SCOPE OF TREATIES
Problem: The US and the Philippines entered into a treaty. US was
granted authority to establish military bases in the Philippines. In like
manner, the Philippines was allowed to establish military bases in Guam
which is a territory of the US. The US protested saying that while Guam
is a territory of the US, it is not however a State of US. How will the
Philippines respond to such protest?
Article 29, VCLT – Unless a different intention appears from the treaty
or is otherwise established, a treaty is binding upon each party in respect
of its entire territory.
It is important to look at the treaty whether it excludes Guam, otherwise,
the application of the treaty is deemed to include the entire territory.

20 | U N I V E R S I T Y O F S A N C A R L O S AWIT l ADLAWON l DENIEGA l ESTOY l FLORO l IBANEZ l TARAN

PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
Guam may not be one of the states of the US but it is considered an
incorporated territory.
DBL’s discussion: Article 29 of the VCLT is relevant at the height of pre-
decolonization stage where the states entering into agreement determines the
territorial scope and extent of the application of treaties – including its colonized
states. Now it may be applied to states as part of their territory. Guam is not of
the states of US but is considered a territory under a special regime. They don’t
participate in the elections but its inhabitants are granted American citizenship.
TREATIES AND THIRD STATES
TREATIES AND THIRD STATES
Article 34, VCLT – A treaty does not create either obligations or rights
for a third state without its consent. However, Art 2 (6) of the UN Charter
(which is a treaty) announces a policy which the UN must follow in
relations with non-members.
Art 2 (6), UN Charter – The Organization shall ensure that States which
are not Members of the United Nations act in accordance with these
Principles so far as may be necessary for the maintenance of
international peace and security.
APPLICATION OF SUCCESSIVE TREATIES
APPLICATION OF SUCCESSIVE TREATIES RELATING TO THE
SAME SUBJECT MATTER
It sometimes happens that a party to a treaty subsequently enters into
another treaty relating to the same subject matter, and that the
provisions of the two treaties are mutually inconsistent.
The position is complicated by the fact that the other party or parties to
the second treaty may or may not also be parties to the first treaty.
Article 30 of the Vienna Convention lays down detailed rules to deal with
the resulting problems.
Article 30, VCLT
1. Subject to Article 103 of the Charter of the United Nations, the
rights and obligations of States parties to successive treaties
relating to the same subject-matter shall be determined in
accordance with the following paragraphs.
Article 103, UN Charter: In the event of a conflict between the
obligations of the Members of the United Nations under the present
Charter and their obligations under any other international
agreement, their obligations under the present Charter shall prevail.
2. When a treaty specifies that it is subject to, or that it is not to be
considered as incompatible with, an earlier or later treaty, the
provisions of that other treaty prevail.
3. When all the parties to the earlier treaty are parties also to the later
treaty but the earlier treaty is not terminated or suspended in
operation under article 59, the earlier treaty applies only to the
extent that its provisions are compatible with those of the later
treaty.
4. When the parties to the later treaty do not include all the parties
to the earlier one: (a) As between States parties to both treaties
the same rule applies as in paragraph 3; (b) As between a State
party to both treaties and a State party to only one of the treaties,
the treaty to which both States are parties governs their mutual
rights and obligations.
5. Paragraph 4 is without prejudice to article 41, or to any question
of the termination or suspension of the operation of a treaty under
article 60 or to any question of responsibility which may arise for a
State from the conclusion or application of a treaty the provisions
of which are incompatible with its obligations towards another
State under another treaty.
21 | U N I V E R S I T Y O F S A N C A R L O S
Q. Are there treaties preferred over all other treaties or do we
go by incompatibility test?
Yes. The UN Charter, by virtue of Article 103.
Article 103, UN Charter: In the event of a conflict between the
obligations of the Members of the United Nations under the present
Charter and their obligations under any other international agreement,
their obligations under the present Charter shall prevail.
DBL’s discussion:
The members of the UN have already agreed and committed among themselves
that in case their obligations under different treaties conflict with their obligations
under the UN Charter – the UN Charter shall prevail.
That may be problematic for those who are not parties to UN Charter, but even
then the UN Charter provides that those who are non-members are bound to
behave to maintain peace and order and security of all member states.
In many cases, unilateral actions on the part of NATO, without the sanction of the
UN Security Council has been subject of criticism in the past. Parties to the NATO
of course have their own obligation in the NATO charter, the moment there is a
need to participate in military actions in order to secure a NATO member for
example is an obligation under the NATO charter. Since it involves the use of force,
it will trigger the application of article 2(4) of UN Charter. Use of force can only be
done by self defense, and by collective action of the UN like in 1999, when NATO
attacks Yugoslavia over questions of acts of atrocities over Kosovo.
The most acceptable use of force if it is through the NATO paradigm is for NATO
to get the authorization of UN Security Council. This is because the UN Security
Council can use its own force or it may authorize a state or a regional organization
to use force to maintain peace and security. But without UN authorization, that
will be till questionable even pursuant to a treaty because of Article 103 of the UN
Charter.
INTERPRETATION OF TREATIES
GENERAL INTERPRETATION OF TREATIES
GENERAL INTERPRETATION OF TREATIES
Article 31, VCLT – General Rule of Interpretation
A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.
A. Text (ordinary meaning)
B. Context
C. Object and purpose
TN: Art 31 gives three methods of interpretation and be aware that CIL requires
the application of all three methods in one setting. It is not the same statutory
construction we apply in local laws. In international setting, we combine all three
– text, context, object and purpose.
SUPPLEMENTAL MEANS OF INTERPRETATION
SUPPLEMENTAL MEANS OF INTERPRETATION
If there is still ambiguity or unreasonableness, resort to the
supplementary means of interpretation (Art 32):
A. Preparatory works (Travaux perpetoire)
B. Circumstances of its conclusion (contemporaneity)
Q. Is one approach preferred over the other?
There is no definitive answer but we can be guided by some
pronouncements of authors and cases. In some cases, object and
purpose is applied or the context. If application of these approaches will
yield to ambiguity or unreasonableness, and then we can resort to
supplementary methods of interpretation.
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PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
VALIDITY AND CONTINUANCE IN FORCE OF TREATIES
WAYS BY WHICH A PARTY MAY NO LONGER BE BOUND
Ways by which a state party to a treaty may no longer be bound
by the treaty:
1. Withdrawal or renunciation
2. Invalidity of treaty – this presupposes that the treaty is defective
3. Termination of treaty – treaty is valid but may be terminated
based on valid grounds
Article 42, VCLT –
1. The validity of a treaty or of the consent of a State to be bound
by a treaty may be impeached only through the application of the
present Convention.
2. The termination of a treaty, its denunciation or the withdrawal of
a party, may take place only as a result of the application of the
provisions of the treaty or of the present Convention. The same
rule applies to suspension of the operation of a treaty.
INVALIDITY OF TREATIES
GROUNDS FOR INVALIDITY
GROUNDS FOR INVALIDITY OF TREATIES
Articles 46-53, VCLT
A. Provisions of municipal law regarding competence to conclude
treaties
B. Specific restrictions on authority to express the consent of a
state
C. Error
D. Fraud
E. Corruption of a representative of a State
F. Coercion of a representative of a State
G. Coercion of a state by the threat or use of force
H. Treaties conflicting with jus cogens norm
ART 46 PROVISIONS OF MUNICIPAL LAW RE COMPETENCE
PROVISIONS OF MUNICIPAL LAW REGARDING COMPETENCE
TO CONCLUDE TREATIES
A State may not invoke the fact that its consent to be bound by a treaty
has been expressed in violation of a provision of its internal law
regarding competence to conclude treaties as invalidating its consent
unless that violation was manifest and concerned a rule of its internal
law of fundamental importance.
Q. When is a violation said to be manifest?
A violation is manifest if it would be objectively evident to any State
conducting itself in the matter in accordance with normal practice and
in good faith.
DBL’s discussion: If the government disregards constitutional requirement that our
treaty be ratified by President and concurred with Senate – this is rule of
fundamental importance. Thus, if not complied with, the treaty may be invalidated
on the ground because of improper consent.
ART 47 SPECIFIC RESTRICTIONS ON AUTHORITY
SPECIFIC RESTRICTIONS ON AUTHORITY
Although a person may be authorized to enter into a treaty on behalf of
a state, in accordance with Article 7, it sometimes happens that a
specific restriction is imposed on his authority; for example, he may be
instructed not to enter into a treaty unless it contains a particular
provision to which his state attaches importance.
22 | U N I V E R S I T Y O F S A N C A R L O S
Q. What happens if he disregards such a restriction?
Article 47, VCLT –
If the authority of a representative to express the consent of a State to
be bound by a particular treaty has been made subject to a specific
restriction, his omission to observe that restriction may not be invoked
as invalidating the consent expressed by him unless the restriction was
notified to the other negotiating States prior to his expressing such
consent.
To summarize –
GR: Omission to observe the restriction cannot invalidate the treaty.
XPN: If other negotiating States have been notified of the restriction
prior to his expressing such consent
AUTHORIZED REPRESENTATIVES
The right to legation is a CIL – the right to send diplomatic
representatives abroad. Since states are legal persons, they are
represented by their agents.
Q. Who are considered authorized representatives?
Article 7, VCLT –
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, or
B. It appears from the practice of the States concerned or from other
circumstances that their intention was to consider that person as
representing the State for such purposes and to dispense with full
powers.
Q. Are there persons who are considered authorized
representatives even without having to produce full powers?
Yes. By virtue of their functions and without having to produce full
powers, the following are considered as representing their State:
D. Heads of State, Heads of Government and Ministers for Foreign
Affairs, for the purpose of performing all acts relating to the
conclusion of a treaty
E. Heads of diplomatic missions, for the purpose of adopting the text
of a treaty between the accrediting State and the State to which
they are accredited
F. Representatives accredited by States to an international
conference or to an international organization or one of its organs,
for the purpose of adopting the text of a treaty in that conference,
organization or organ
FULL POWERS
"Full powers" means a document emanating from the competent
authority of a State designating a person or persons to represent the
State for negotiating, adopting or authenticating the text of a treaty, for
expressing the consent of the State to be bound by a treaty, or for
accomplishing any other act with respect to a treaty
Two kinds of full powers
A. General – covers adoption of the text of the treaty, signature,
and ratification and all other stages needed in the process
B. Specific – specifies authority of representative to a particular
stage of proceeding, example if it is only to adopt the text of the
treaty but it is not authorized to sign or submit instruments of
ratification
AWIT l ADLAWON l DENIEGA l ESTOY l FLORO l IBANEZ l TARAN
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016

EFFECT OF ULTRA VIRES ACT

ART 52 CORRUPTION OF A STATE
Article 8, VCLT
General rule: An act relating to the conclusion of a treaty performed COERCION OF A STATE BY THE THREAT OR USE OF FORCE
by a person who cannot be considered under article 7 as authorized to A treaty is void if its conclusion has been procured by the threat or use
represent a State for that purpose is without legal effect. of force in violation of the principles of international law embodied in the
Charter of the United Nations.
DBL’s discussion: The performance of functions by a representative outside of
authority (ultra vires), like he was authorized only to adopt but he went on to sign
ART 53 TREATIES CONFLICTING WITH JUS COGENS
the treaty, would lead to the act not binding the state as if it has never been
signed.
TREATIES CONFLICTING WITH A PEREMPTORY NORM OF
Exception: If subsequently confirmed by the State GENERAL INTERNATIONAL LAW ("JUS COGENS")
A treaty is void if, at the time of its conclusion, it conflicts with a
ART 48 MISTAKE OR ERROR peremptory norm of general international law. For the purposes of the
present Convention, a peremptory norm of general international law is
ERROR a norm accepted and recognized by the international community of
States as a whole as a norm from which no derogation is permitted and
A. A State may invoke an error in a treaty as invalidating its consent
which can be modified only by a subsequent norm of general
to be bound by the treaty if the error relates to a fact or situation
international law having the same character.
which was assumed by that State to exist at the time when the
treaty was concluded and formed an essential basis of its consent
to be bound by the treaty. TERMINATION OF TREATIES
B. Paragraph 1 shall not apply if the State in question contributed by
its own conduct to the error or if the circumstances were such as GROUNDS FOR TERMINATION
to put that State on notice of a possible error.
GROUNDS FOR TERMINATION
C. An error relating only to the wording of the text of a treaty does The moment states become parties to a treaty, it triggers the application
not affect its validity; article 79 then applies. of customary international law of pacta sunt servanda, and therefore the
obligations and commitments in the treaty should be performed in good
Preah Vihear Temple case faith. But for a State to free itself from the obligations of a treaty, it
should be based on well-established ground/s.
Requisites of error:
1. Error is about a fact or situation which was assumed to exist at the General Rule: Pacta Sunt Servanda
time of conclusion
2. That fact or situation forma an essential basis of the consent to be TN: It is only in exceptional and well established grounds that pacta sunt
bound of the treaty servanda may be dispensed with
3. Subject matter of the temple case the state invoking the error must
not have contributed to the error. (Doctrine of Clean Hands) Grounds for Termination, Denunciation, withdrawal, or
4. The state had known of the error or would have known of the error. Suspension:
1. Application of the treaty (Art. 42)
ART 49 FRAUD 2. Application of the VCLT (Art. 42)
3. Consent of all parties e.g Desuetude (Art. 54)
FRAUD 4. Discharge through Material Breach (Art. 60)
If a State has been induced to conclude a treaty by the fraudulent 5. Impossibility of Performance (Art. 60)
conduct of another negotiating State, the State may invoke the fraud as 6. Rebus Sic Stantibus (Art. 62)
invalidating its consent to be bound by the treaty. 7. Emergence of new Jus Cogens (Art. 64)
8. Outbreak of War (bilateral treaties)
TN: One pending case is on the alleged fraud done by Australia through
surveillance during its treaty negotiations with East Timor.
APPLICATION OF THE TREATY AND/OR VCLT
ART 50 CORRUPTION OF A REPRESENTATIVE OF A STATE
TERMINATION IN ACCORDANCE WITH THE PROVISIONS OF
CORRUPTION OF A REPRESENTATIVE OF A STATE THE TREATY
If the expression of a State's consent to be bound by a treaty has been Article 42, VCLT –
procured through the corruption of its representative directly or
1. The validity of a treaty or of the consent of a State to be bound
indirectly by another negotiating State, the State may invoke such
by a treaty may be impeached only through the application of the
corruption as invalidating its consent to be bound by the treaty.
present Convention.
ART 51 COERCION OF A REPRESENTATIVE OF A STATE 2. The termination of a treaty, its denunciation or the withdrawal of
a party, may take place only as a result of the application of the
COERCION OF A REPRESENTATIVE OF A STATE provisions of the treaty or of the present Convention. The same
The expression of a State's consent to be bound by a treaty which has rule applies to suspension of the operation of a treaty.
been procured by the coercion of its representative through acts or
threats directed against him shall be without any legal effect. BY CONSENT OF ALL THE PARTIES

Q. What if the coercion is on the state and not on the
representative? Will it invalidate the treaty?
Yes, as provided by Article 52 and it is tantamount to violation of the
principle of non-intervention.
23 | U N I V E R S I T Y O F S A N C A R L O S
TERMINATION BY CONSENT OF THE PARTIES
The termination of a treaty or the withdrawal of a party may take place:
(a) In conformity with the provisions of the treaty, or
(b) At any time by consent of all the parties after consultation with
the other contracting States.
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PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
IMPLIED RIGHT OF DENUNCIATION OR WITHDRAWAL
IMPLIED RIGHT OF DENUNCIATION OR WITHDRAWAL
Denunciation of or withdrawal from a treaty containing no provision
regarding termination, denunciation or withdrawal –
1. A treaty which contains no provision regarding its termination and
which does not provide for denunciation or withdrawal is not
subject to denunciation or withdrawal unless:
(a) It is established that the parties intended to admit the
possibility of denunciation or withdrawal; or
(b) A right of denunciation or withdrawal may be implied by the
nature of the treaty.
2. A party shall give not less than twelve months’ notice of its
intention to denounce or withdraw from a treaty under par 1.
MATERIAL BREACH
TERMINATION OR SUSPENSION OF THE OPERATION OF A
TREATY AS A CONSEQUENCE OF ITS BREACH
Not all breach may be considered as a ground to terminate a treaty.
Such breach must be material.
Material breach of a bilateral treaty
A material breach of a bilateral treaty by one of the parties entitles the
other to invoke the breach as a ground for terminating the treaty or
suspending its operation in whole or in part.
Material breach of a multilateral treaty
A material breach of a multilateral treaty by one of the parties entitles:
a. The other parties by unanimous agreement to suspend the
operation of the treaty in whole or in part or to terminate it either:
(i) In relations between themselves and the defaulting State
(ii) As between all the parties
b. A party specially affected by the breach to invoke it as a ground
for suspending the operation of the treaty in whole or in part in
the relations between itself and the defaulting State.
c. Any party other than the defaulting State to invoke the breach as
a ground for suspending the operation of the treaty in whole or
in part with respect to itself if the treaty is of such a character
that a material breach of its provisions by one party radically
changes the position of every party with respect to the further
performance of its obligations under the treaty.
Q. What constitutes material breach?
A material breach of a treaty consists in:
A. A repudiation of the treaty not sanctioned by the present
Convention, or
B. The violation of a provision essential to the accomplishment of
the object or purpose of the treaty.
A repudiation of the treaty not sanctioned by the present Convention
Advisory Opinion on Namibia
TN: Falls under the first kind of breach (repudiation)
Facts: Namibia or SW Africa was a former colony of Germany. The UN
brought upon all colonizing states to grant all of their colonies
independence through the 1960 convention. Through this, the right to
self-determination developed.
This gave colonies the option either to remain with their colonizing state
or to become independent. In this case, Namibia chose the latter option.
SW Africa asked that it be given its own independence, so Germany left.
24 | U N I V E R S I T Y O F S A N C A R L O S
But because most colonies were incapable of self-governance, the UN
placed them under trusteeship mandate. Meaning they were temporarily
placed under the administration of another state.
South Africa was the one entrusted with Namibia. There was a mandate
(treaty) between South Africa and the League of Nations and South
Africa was mandated to promote the well-being, safety and protection
of the people of Namibia.
But instead, South Africa discriminated the people of Namibia and
imposed upon them apartheid. Such discrimination was considered as a
material breach of the mandate (treaty)
The violation of a provision essential to the accomplishment of the object
or purpose of the treaty.
Gabcikovo-Nagymaros Project
Facts: Hungary and Czechoslovakia both entered into an agreement in
creating a project. The project entered into by the two states created a
systems of locks, hydroelectric power plant, and flood control.
The Treaty was signed in 1977. Thereafter, both parties slowly
performed their works. But there were changes in the administration,
from one regime in another. In Hungary for example, its government
had a change in administration and a lot of its citizens, most especially
the environmentalists in Hungary opposed the project due to its
environmental effects like the system of blocks which will pollute the
waters.
It was relevant to Hungary because if they pursue the project, they will
be violating another International Law, specifically the International
Environmental Law, which is the preservation of the environment. But
the norm on International Environmental Law was not yet a norm when
both states entered into a treaty.
Hungary, however did not abandon the treaty right away. It first
suspended the operations of the project and then eventually it
abandoned the project leading to Czechoslovakia implementing the
Variant C.
Major issue was whether or not Czechoslovakia was mandated to
implement the Variant C?
Hungary alleged that Czechoslovakia’s act of implementing the “Variant
C” would divert 80% the flow of the Dalupe River (which is a shared
resource of both states) to Czechoslovakia. Hungary said that it was a
material breach because it violated the object and purpose of the treaty
because the object of the treaty is to share the Danube River.
Czechoslovakia argued that it was not a material breach, but only in
response to the earlier breach committed by Hungary (considered it as
a counter-measure)
The moment there is a material breach, an aggrieved state has three
options:
1. May terminate the treaty
2. May claim for compensation or any form of reparation as a result
of an internationally wrongful act
3. May make use of counter-measure in response to a material breach
Requirements for a valid counter-measure:
1. Must be taken in response to a previous international wrongful act
of another.
In this case, Hungary committed a wrongful act when it suspended then
abandoned the project. Hungary, on the other hand, invoked fundamental
change of circumstance as a defense due to the development of a new
environmental norm. In addressing the issue, ICJ said that the development
of a new norm cannot be considered as a fundamental change in
circumstances.
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PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
A. The injured state must have called upon the state committing the
wrongful act to discontinue its wrongful conduct or make
reparation for it (also known as the notification-summation
requirement of counter measure)
B. The act must be proportional to the wrongful act.
In this case, the act of Czechoslovakia was not proportional to the breach
caused by Hungary because the damage caused by the implementation of
the Variant C is greater. The implementation of the Variant C would result to
the diversion of 80-90% of the flow of the river. Therefore, Czechoslovakia
was not justified in implementing the Variant C.
FUNDAMENTAL CHANGE OF CIRCUMSTANCES
FUNDAMENTAL CHANGE OF CIRCUMSTANCES
Not implied. Otherwise known as rebus sic stantibus. Applicable only in
the most exceptional circumstances.
TN: Rebus sic stantibus is an exception to pacta sunt servanda.
Q. Is rebus sic stantibus applicable only to indefinite treaties?
Supposedly. However, since such principle has not been carried out in
the VCLT, the ILC made a clarification that rebus sic stantibus is
applicable to any treaty (both indefinite and those with an expiration
period.
Elements of Fundamental Change of Circumstances:
A. The change of circumstances must have been of a “fundamental”
character
When can change be considered fundamental?
1. It should radically transform the extent of the obligation that will be
performed
2. The party, due to the change in circumstance, would now be obliged
to perform something which is different from that which was originally
agreed upon
3. By radically transform – it means that the change must have increased
the burden of the obligation to be executed to the extent of rendering
the performance of something essentially different
B. The change must have resulted in a radical transformation of the
extent of the obligations still to be performed. The change must
have increased the burden of the obligations to be executed to the
extent of rendering the performance something essentially
different from that originally undertaken.
C. The circumstances that changed must refer to those that
determined the parties to accept the treaty.
D. The change in circumstance must have been unforeseen by the
parties
E. The existence of the circumstances at the time of the treaty’s
conclusion must have constituted an essential basis of the consent
of the parties to be bound
Fisheries Jurisdiction Case
Facts: Iceland and UK had agreed in a treaty that they will submit to the
jurisdiction of the ICJ because of consent (either by submitting to the
jurisdiction or when there is an advanced consent – when stipulated in
the treaty)
The treaty provided for the extent of fishing within the fishing zone of
Iceland. In such treaty, UK recognizes the extent of the fishing zone of
Iceland, which is 12 nautical miles and Iceland wants to extend the
fishing zone to 15 nautical miles.
The reason for the adjustment is the development of new fishing
techniques that allowed fishermen to fish more than what was expected.
Iceland contends that this is something that cannot be foreseen and
hoped that the treaty could be suspended or abandoned.
25 | U N I V E R S I T Y O F S A N C A R L O S
When the case was brought to the ICJ, Iceland claimed that ICJ has no
jurisdiction because such treaty has been terminated or at the very least
suspended. It was the technique in fishing that was considered a
fundamental change, which resulted to the over fishing.
Issue: Can ICJ claim jurisdiction over such case considering that the
treaty has already been suspended?
Held: Fundamental change in circumstance must refer to the obligations
in the treaty. In this case, the obligation to be undertaken in the treaty
is to submit to the jurisdiction of the ICJ cases where there is a dispute
in connection to treaty.
In the case at bar, Iceland contended that it was the technique in fishing
which resulted to overfishing which was considered a fundamental
change in circumstance.
ICJ said that the change in the technique in fishing cannot be considered
a fundamental change of circumstance because it had nothing to do with
the obligation of the treaty, which is to submit to the jurisdiction of the
ICJ. Thus, any change in the technique of fishing did not affect the
jurisdiction of the ICJ.
Gabcikovo-Nagymaros Project
Issue: Was the change in the environmental norm considered a a
fundamental change in circumstance thus allowing Hungary to
discontinue with the project?
Assuming that there was a fundamental change of circumstance in the
change of the environmental norm, it did not however prohibit them
from performing their obligations of the project. The parties could have
adjusted or changed their means in implementing the project.
The justices of the ICJ did not believe that the development of the
environmental norm radically altered the obligation of the parties. More
so, it was not considered by the ICJ as something which cannot be
foreseen.
ICJ said that any development in international law is not something that
is unforeseeable because it is a fact that law develops. Therefore,
changes in legal, social, economic, cultural system will not constitute
fundamental change of circumstance.
Q. When may change of circumstances not be invoked as a
ground for termination?
A. If the treaty establishes a boundary
B. If the fundamental change is the result of a breach by the party
invoking it either of an obligation under the treaty or of any other
international obligation owed to any other party to the treaty.
SUPERVENING IMPOSSIBILITY OF PERFORMANCE
SUPERVENING IMPOSSIBILITY OF PERFORMANCE
Q. When may supervening impossibility be invoked as a ground
for termination?
If the impossibility results from the permanent disappearance or
destruction of an object indispensable for the execution of the treaty. If
the impossibility is temporary, it may be invoked only as a ground for
suspending the operation of the treaty.
Q. When may it not be invoked?
If the impossibility is the result of a breach by that party either of an
obligation under the treaty or of any other international obligation owed
to any other party to the treaty.
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PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH – 407 A.Y. 2015-2016
EMERGENCE OF A NEW PEREMPTORY NORM
EMERGENCE OF A NEW PEREMPTORY NORM
If a new peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes void and
terminates.
PROCEDURE IN INVALIDATION, TERMINATION, ETC.
EXCLUSIVE GROUNDS
Exclusive Grounds: under VCLT only (Art. 42)
Art. 42 suggests the exclusivity of the grounds for the suspension,
termination and invalidation of a treaty. If there will be any ground
outside the VCLT, it must either be a new CIL or stipulated specifically
in a treaty, otherwise an aggrieved party cannot invalidate, suspend or
terminate the treaty.
GR: Should affect the whole treaty (Art. 44)
XPN: If the treaty provides for a separability clause. In which case,
provisions not affected by the invalidation of the treaty will still stand or
remain binding between the parties.
Lex Specialis and Lex Generalis
Although the VCLT provides for grounds of the suspension, termination
or the invalidation of a treaty, a special law, in the guise of the treaty,
may also be passed consisting of other grounds to terminate or suspend
the treaty. Meaning, such other grounds must be provided for in the
treaty
LEX SPECIALIS: When the parties provide for specific grounds in the
termination, suspension or the invalidation of a treaty. Without such
specific provision, then the LEX GENERALIS (general law, as provided
for in ART. 42 of the VCLT) shall apply.
SUBJECT TO LOSS OF RIGHT
SUBJECT TO LOSS OF RIGHT
Instances where the state claiming ground for invalidation,
termination or suspension of a treaty may be precluded from
advancing the claim:
A. When a state has also contributed to the material breach of the
treaty (Doctrine of clean hands)
B. A State may no longer invoke a ground for invalidating,
terminating, withdrawing from or suspending the operation of a
treaty under articles 46 to 50 or articles 60 and 62 if, after
becoming aware of the facts:
1. It shall have expressly agreed that the treaty is valid or
remains in force or continues in operation, as the case may
be, or
2. It must by reason of its conduct be considered as having
acquiesced in the validity of the treaty or in its maintenance
in force or in operation, as the case may be.
PROCEDURE
NOTIFY IN WRITING OF THE CLAIM AND PROPOSED MEASURE
A party which, under the provisions of the present Convention, invokes
either a defect in its consent to be bound by a treaty or a ground for
impeaching the validity of a treaty, terminating it, withdrawing from it
or suspending its operation, must notify (in writing) the other parties of
its claim. The notification shall indicate the measure proposed to be
taken with respect to the treaty and the reasons therefor.
TN: The parties cannot just unilaterally terminate a treaty. They should be given
the chance to resolve their differences in a peaceful manner.
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Notification-summation process
This is also called the notification-summation process. Notification refers
to the party notifying the other party of the breach and summation
referring to the proposed measures – either to suspend or terminate the
treaty.
TN: The notification requirement is a CIL, but whether it should be in
writing or not, that has not yet become a customary international law.
But if the parties to the treaty are parties to the VCLT, then such
notification must be in writing, as stated in Article 67.
The notification must contain the proposed measure. By proposed
measure, it means whether the injured the party would want to suspend
or terminate the treaty. It must likewise include the reason for such
proposed measure
To summarize, the notification must be in writing, in an appropriate
instrument and signed by the head of state.
EFFECT IF NO OBJECTION WITHIN 3 MONTHS
If there no objection within three (3) months from receipt of the
notification, the claiming State may carry out the measure proposed,
through a duly signed instrument.
Within the 3 month period, the other party may either:
A. Object to the ground or proposed measure
If there is an objection, it will preclude the other party from implementing
the proposed measure. Instead, it is required to first seek pacific or
peaceful means of dispute settlement. (i.e. arbitration, conciliation,
mediation, good office, judicial settlement, etc.)
B. Will not object
PHILIPPINE PRACTICE
CONSTITUTIONAL PROVISIONS
Sec 2, Art II, 1987 Constitution
The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of
the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
Sec 21, Art VII, 1987 Constitution
No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
Sec 5(2) (a), Art VIII, 1987 Constitution
The Supreme Court shall have the following powers:
a. Review, revise, reverse, modify, or affirm on appeal or certiorari,
as the law or the Rules of Court may provide, final judgments and
orders of lower courts in:
b. 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.
Sec 18(7), Art XIII, 1987 Constitution
The Commission on Human Rights shall have the following powers and
functions: Monitor the Philippine Government's compliance with
international treaty obligations on human rights.
Sec 25, Art XVIII, 1987 Constitution
After the expiration in 1991 of the Agreement between the Republic of
the Philippines and the United States of America concerning military
bases, foreign military bases, troops, or facilities shall not be allowed in
the Philippines except under a treaty duly concurred in by the Senate
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and, when the Congress so requires, ratified by a majority of the votes
cast by the people in a national referendum held for that purpose, and
recognized as a treaty by the other contracting State.
EXECUTVE ORDER NO. 459
EO 459 – PROVIDING FOR GUIDEINES IN THE NEGOTIATION
OF INTERNATIONAL AGREEMENTS AND ITS RATIFICATION
Q. Distinguish International Agreement, Treaty and Executive
Agreement.
There is no distinction in international law, for as long as they are
entered into between both states and is in writing, then it is considered
an international agreement.
However, in our domestic jurisdiction, all three are considered as
international agreements but differ procedurally.
A. Treaty – international agreements entered into by the
Philippines which require legislative concurrence after executive
ratification.
B. Executive agreement – similar to treaties, except that they do
not require legislative concurrence.
Q. Who decides if it is an Executive Agreement, Treaty or an
International Agreement?
The Secretary of the Department of Foreign Affairs.
Q. Who shall represent the Philippines in the different states of
treaty formation?
Any person armed with Full Powers.
The following persons, however, shall not require Full Powers prior to
negotiating or signing a treaty or an executive agreement, or any
amendment thereto, by virtue of the nature of their functions:
a. Secretary of Foreign Affairs
b. Heads of Philippine diplomatic missions, for the purpose of
adopting the text of a treaty or an agreement between the
Philippines and the State to which they are accredited.
c. Representatives accredited by the Philippines to an international
conference or to an international organization or one of its organs,
for the purpose of adopting the text of a treaty in that conference,
organization or organ.
Q. Who may issue Full Powers?
The President of the President. However, he may delegate this function
to the Secretary of Foreign Affairs.
ENTRY INTO FORCE
Q. When shall treaties enter into force in the Philippines?
A treaty or an executive agreement enters into force upon compliance
with the domestic requirements stated in this Order.
A. Executive Agreements
1. All executive agreements shall be transmitted to the Department
of Foreign Affairs after their signing for the preparation of the
ratification papers.
2. The DFA, pursuant to the endorsement by the concerned agency,
shall transmit the agreements to the President of the Philippines
for his ratification.
3. The original signed instrument of ratification shall then be returned
to the DFA for appropriate action.
B. Treaties
1. All executive agreements shall be transmitted to the DFA after their
signing for the preparation of the ratification papers.
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2. The DFA pursuant to the endorsement by the concerned agency,
shall transmit the agreements to the President of the Philippines
for his ratification.
3. The DFA shall submit the treaties to the Senate for concurrence in
the ratification by the President.
4. Upon receipt of the concurrence by the Senate, the DFA shall
comply with the provision of the treaties in effecting their entry into
force.
Q. May the President refuse to submit a treaty to the Senate for
its concurrence?
Yes. The President may refuse to do so because treaty-making is a
foreign affairs function and is executive in character. Thus, the President
cannot be compelled to ratify the treaty and submit the same to the
Senate for concurrence.
Tanada v. Angara (1997)
Re: Concurrence by the Senate is a political question.
Facts: There was a petition to prevent the Senate from concurring from
the President’s ratification of the WTO Charter. The grounds invoked
were provisions of the Constitution which were not considered as self-
executing. The Supreme Court said that no compulsion can be made
because the question of whether to concur or not is a political question.
The Constitution does not provide for conditions on concurring, thus full
discretionary powers fully belongs to Congress.
One of the oldest and most fundamental rules in international law is
pacta sunt servanda – international agreements must be performed in
good faith. “A treaty engagement is not a mere moral obligation but
creates a legally binding obligation on the parties. A state which has
contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the
fulfillment of the obligations undertaken.
When the Philippines joined the UN as one of its 51 charter members, it
consented to restrict its sovereign rights under the “concept of
sovereignty as auto-limitation.”
Pimentel v. Romulo (2006)
Re: The power to ratify a treaty is vested with the President.
The signing of the treaty and the ratification are two separate and
distinct steps in the treaty-making process. The signature is primarily
intended as a means of authenticating the instrument and as a symbol
of the good faith of the parties. It is usually performed by the state’s
authorized representative in the diplomatic mission. Ratification, on the
other hand, is the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representative. It is generally held
to be an executive act, undertaken by the head of the state or of the
government.
The power to ratify is vested in the President, subject to the concurrence
of the Senate. The role of the Senate, however, is limited only to giving
or withholding its consent, or concurrence, to the ratification. Hence, it
is within the authority of the President to Refuse to submit a treaty to
the Senate or, having secured its consent for its ratification, refuse to
ratify it.
Bayan v. Executive Secretary (2000)
With regard to the ratification by the President of the VFA and the
exercise by the Senate of its constitutional power to concur with the
VFA, the Court, absent clear showing of grave abuse of discretion on the
part of respondents, is without power to meddle with such affairs purely
executive and legislative in character and nature.
With the ratification of the VFA, which is equivalent to final acceptance
and with the exchange of notes between the Philippines and the USA, it
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now becomes obligatory, under the principles of international law, to be Basically, there is no difference between International Law and CIL,
bound by the terms of the agreement. except for jus cogens. In the Philippines, we apply the monist approach
in incorporation with a caveat that general principles of international law
The only limitation is grave abuse of discretion. is equivalent to CIL.

Bayan Muna v. Romulo (2011)
Re: Concurrence by the Senate is not required in executive agreements.
The terms “exchange of notes” and “executive agreements” have been
used interchangeably, exchange of notes being considered a form of
executive agreement that becomes binding through executive action.
On the other hand, executive agreements concluded but the President
“sometimes take the form of exchange of notes and at other times that
of more formal documents denominated ‘agreements’ or ‘protocols’.
Concurrence of the Senate is not required in executive agreements.
INTERNATINAL LAW V. MUNICIPAL LAW
INTERNATIONAL LAW V. MUNICIPAL LAW
Q: When there is a conflict between international law and
municipal law, which should prevail?
The question requires levels of qualifications.
Legal System of the state
What are deemed incorporated are the general accepted principles of
international law as part of law of the land. But again since we follow
supremacy of the Constitution, then we expect courts to apply the
Constitution.
To summarize:
A. Determine the legal system of the state
A. If supremacy of the Constitution is recognized – Municipal
law prevails (except if it violates jus cogens)
B. If supremacy of the Constitution is not recognized –
International law prevails
B. Determine the forum where the case is filed
A. If international court – International law prevails
B. If domestic court – determine whether monist or dualist
 If monist – International law prevails (except if the
municipal law involved is the Constitution)
 If dualist – Municipal law prevails

It must be characterized what International Law is involved, the same

goes with Municipal law. States differ in legal systems especially in the
hierarchy of laws.

In some States with written constitution, they adhere to supremacy of

the Constitution. As a consequence, national and local legislations will
only be valid if they conform to the Constitution.

In States without written constitution like UK, actually Britain, there is

no supremacy of the Constitution being followed.

So, that makes it a little bit complicated because in the case of the
Philippines, we treat general principles of International Law as
equivalent to statutes. That means that the general principles of
International law are equivalent to national laws or ordinary statutes
NOT municipal laws.

Therefore, even general accepted principles of International must yield

to the Constitution which is HIGHER than our national legislation. That
is the reason why you mention about Ichiong v. Hernandez where our
treaty obligations may be superseded by a more paramount police
power of the State. Besides of course, in that case the Civilization Act
comes later after the treaty of comity between the Philippines and China.
So following the Statutory Construction, the later law superseded the
earlier law.

However, in Planas v. Gil, the SC said that while the Constitution can
even be supreme than the general accepted principles of international
law, the Constitution’s validity however may be limited by the jus cogens
norm because it is non-derogable so the Constitution of all States must
yield to non-derogable jus cogens norm.

Forum where case is filed

If it has to be decided by an international court, then we can expect that

international law will be applied rather than municipal law. That is
expected of an international tribunal. But it is not right to conclude that
if the case is to be decided by a municipal forum, it will always apply
municipal laws.

If the domestic forum follows monism, then it may apply International

Law over Municipal Law assuming the Municipal Law involved is not the
Constitution but only national legislation. But if the forum follows a
dualist approach, then the domestic forum will apply Municipal Law over
International Law.
28 | U N I V E R S I T Y O F S A N C A R L O S AWIT l ADLAWON l DENIEGA l ESTOY l FLORO l IBANEZ l TARAN