IMPORTANT INTERNATIONAL LAW CONCEPTS

ERGA OMNES. ​An obligation of every State towards the international community as a whole.
All states have a legal interest in its compliance, and thus all States are entitled to invoke
responsibility for breach of such an obligation (Case Concerning The Barcelona Traction, ICJ
1970). Examples of obligations erga omnes 1. Outlawing of acts of aggression; 2. Outlawing
of genocide; 3. Basic human rights.

JUS COGENS. ​Also referred to as ‘peremptory norm of general international law’.

Literally means “compelling law.” A norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted and which
can be modified only by a subsequent norm of general international law having the same
character (Vienna Convention on the Law of Treaties, Art. 53).

Elements of jus cogens

1. A norm accepted and recognized by international community of states as a
whole;
2. No derogation is permitted; and,
3. Which can only be modified by a subsequent norm having the same character.

SOURCES OF INTERNATIONAL LAW

Art. 38 of the Statute of International Court of Justice (SICJ) provides that the Court, whose
function is to decide in accordance with international law such disputes as are submitted to it,
shall apply:

Primary Sources
1. International conventions, whether general or particular, establishing rules expressly
recognized by the contesting state;
2. International custom, as evidence of a general practice accepted as law; and
3. The general principles of law recognized by civilized nations

Subsidiary Sources
1. Judicial decisions; and
2. Teachings of the most highly qualified publicists of various nations.

International Custom - ​A rule of CIL is one that, whether it has been codified in a
treaty, has binding force of law because the community of states treats it and views it
as a rule of law. In contrast to treaty law, a rule of CIL is binding upon a state whether
or not it has affirmatively assented to that rule

A customary rule requires the presence of two elements:

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

This is normally constituted by the repetition of certain behavior on the part

of a State for a certain length of time which manifests a certain attitude, without
 ambiguity, regarding a particular matter. Evidence of state practice may include a
codifying treaty, if a sufficient number of states sign, ratify, or accede.

2. A psychological element consisting of subjective conviction of a State that it is

legally bound to behave in a particular way in respect of a particular type of
situation. This element is usually referred to as the ​opinio juris sive
necessitates

To assume the status of CIL, the rule in question must be regarded by

States as being binding in law, i.e. that they are under a legal obligation to obey
it. The main purpose of the opinio juris sive necessitates is to distinguish
between customary rule and mere usage followed out of courtesy or habit.

General Principles of International Law - ​Reference to such principles is to both

those which are inferred from municipal laws and those which have no counterparts in
municipal law and are inferred from the nature of the international community. If there is
no treaty relevant to a dispute, or if there is no rule of customary international law that
can be applied to it, the ICJ is directed, under Art. 38 of its Statute, to apply general
principles of law.

Decisions of International Tribunals - ​As there is no binding authority of precedent in

international law, international court and tribunal cases do not make law. Judicial
decisions are, therefore, strictly speaking not a formal source of law. However, they
clarify the existing law on the topic and may, in some circumstances, create a new
principle in international law. They can also be considered evidence of State practice.

NOTE: In practice, the ICJ will follow the previous decisions so as to have judicial
consistency, or if it does not follow, the court will distinguish its previous decisions from
the case actually being heard (Interpretation of Peace Treaties,1950).

Teaching of Authoritative Publicists. ​Requisites to be a most highly qualified

publicist:
1. His writings must be fair and impartial representation of law; and
2. He/she acknowledged authority in the field.

Doctrine of Incorporation
It means that the rules of international law form part of the law of the land and no
further legislative action is needed to make such rules applicable in the domestic
sphere.

Doctrine of Transformation
It provides that the generally accepted rules of international law are not per se binding
upon the state but must first be embodied in legislation enacted by the lawmaking body
and so transformed into municipal law.

ELEMENTS OF A STATE
1. Permanent population (people) – An aggregate of individuals of both sexes, who live
together as a community despite racial or cultural differences;
 2. Defined territory – Fixed portion of the earth’s surface which the inhabitants occupy;
3. Government – The agency through which the will of the state is formulated, expressed
and realized; and
4. Capacity to enter into relations with other states (independence/sovereignty) – The
power of a state to manage its external affairs without direction or interference from
another state (Montevideo Convention on the Rights and Duties of States, Art. 1).

Recognition not an element of a state

The political existence of the state is independent of recognition by the other states.
Even before recognition, the state has the right to defend its integrity and independence
to provide for its conservation and prosperity, and consequently to organize itself as it
sees fit, to legislate upon its interests, administer its services, and to define the
jurisdiction and competence of its courts. The exercise of these rights has no other
limitation than the exercise of the rights of other states according to international law
(Montevideo Convention on the Rights and Duties of States, Art. 3).

Principle of State Continuity

From the moment of its creation, the state continues as a juristic being notwithstanding
changes in its circumstances provided only that they do not result in loss of any of its
essential elements (Sapphire Case, 11 Wall. 164 in Cruz, 2003).

NOTE: There is only a SUCCESSION OF GOVERNMENT in the case of Ranache. The

succession of government was effected through violent means; hence, it continues to be an
international person and it may continue to do routinary acts of governmental
administration.

State succession Succession of government

Takes place when one state assumes the
rights and some of the obligations of another
because of certain changes in the condition
of the latter. This holds true in the event that
a state is extinguished or is created (Cruz,
2000).
There is succession of government where
one government replaces another either
peacefully or by violent methods. The
integrity of the state is not affected; the state
continues as the same international person
except only that its lawful representative is
changed (Cruz, 2000).

Effects of a change of government

1. If the change is peaceful, the new government assumes the rights and responsibilities of
the old government; and,
2. If the change was effected thru violence, a distinction must be made.
a. Acts of political complexion may be denounced;and,
b. Routinary acts of mere governmental administration continue to be effective.

NOTE: There is only a SUCCESSION OF GOVERNMENT in the case of Ranache. The

succession of government was effected through violent means; hence, it continues to be an
international person and it may continue to do routinary acts of governmental
administration.
 Recognition
It is the acknowledgment extended by a State to:
1. Another State; or
2. Government, or a
3. Belligerent community

Kinds of Recognition
1. Express recognition- may be verbal or in writing. It may be extended though:
a. Formal proclamation or announcement;
b. Stipulation in a treaty;
c. Letter or telegram; or,
d. Official call or conference.

2. Implied recognition- it is when the recognizing state enters into official intercourse
with the new member by:
a. Exchanging diplomatic representatives with it;
b. Bipartite treaty;
c. Acknowledging its flag; or,
d. Entering into formal relations with it.

Theories of recognition of a State

1. Constitutive theory – Recognition is the last indispensable element that converts
the state being recognized into an international person; and,
2. Declaratory theory – Recognition is merely an acknowledgment of the
pre-existing fact that the state being recognized is an international person (Cruz,
2003).

Requirements for recognition of government

● The government is stable and effective, with no substantial resistance to its
authority;
● The government must show willingness and ability to discharge its international
obligations; and,
● The government must enjoy popular consent or approval of the people.

NOTE: Par. 7 of the Compromis: ​The change of leadership was welcomed by the citizens
according to media reports​ shows that the people enjoy the popular consent and approval
of its people.

Tests in recognizing a new government

1. Objective test- the government must be able to maintain order within the state
and repel external aggression; and
2. Subjective tests - government is willing to comply with its international obligations

Tobar or Wilson Doctrine

 It precludes recognition to any government coming into existence by
revolutionary means so long as the freely elected representatives of the people thereof
have not constitutionally reorganized the country.

NOTE: By virtue of the statements of Erida and its act of lobbying for Ranache to be
declared as a high risk area, Eridas is deemed to have impliedly recognized Ranache’s
military government.

Relevant Paragraphs:
● Par. 10 - I​ n a press conference shortly after the events involving M/V Butterfly, Eridas’
Foreign Minister called out Ranache.
● Par. 13 - D ​ ue to persistent lobbying by shipping states, led primarily by Eridas, the
maritime route along the coastline of Ranache was declared as “high risk” by the IMO

SELF DETERMINATION
Internal Self External Self
Determination Determination

People of a states' pursuit of its political, Establishment of a sovereign and

economic, social and cultural development independent State, the free association or
within the framework of an existing State. integration with an independent State or the
emergence into any other political status
NOTE: Recognized sources of international freely determined by a people which
law establish that the right to constitute modes of implementing the right
self-determination of a people is normally of self-determination by that people.
fulfilled through internal self-determination.
NOTE: arises only in the most extreme
cases and, even then, under carefully
defined circumstances.

SUBJECT v. OBJECT (In International Law)

Subject - ​They are entities endowed with rights and obligations in the international order and
possessing the capacity to take certain kinds of action on international plane. (Kaczorowska,
2010).

The status of the State as subject of law or an international person is conferred by customary
or general international law. It possesses erga omnes or objective personality not merely by
virtue of recognition on the part of particular states

Object - ​They are those who indirectly have rights under, or are beneficiaries of international
law through subjects of international law.
 NOTE: Under the ​traditional concept​, only states are considered subjects of
international law. However, under the ​contemporary concept​, individuals and international
organizations are also subjects because they have rights and duties under international law.