Public International Law (PART II)

Relationship between CIL and Treaty

Rules when there arises a conflict between the existence of a CIL and a Treaty
1. When a treaty codifies CIL, the parties to the treaty will be bound by the
treaty as well as CIL while non-parties are only bound by CIL.
2. Treaty-based obligations may be identical to obligations in CIL if the treaty
has a crystallizing effect whereby its content develops into customary law.
3. When a treaty contains elements of both codification of existing customary
law and progressive developments, non-parties are only bound by the
former.
4. When the content of a treaty-based and custom-based obligation is identical,
the two sources will complement and reinforce each other.
5. Between CIL and a treaty, that which has a peremptory or jus cogens
character shall prevail.
6. Since the adoption of a treaty is a deliberate act of law-creation, the treaty
normally prevails over custom between the parties to the treaty.
7. That which is later in time prevails (lex posterior)
8. That which is more detailed prevails (lex specialis)

Continental Shelf Case (Libyan Arab Jamahiriya v. Malta, ICJ (1985))

- Delimitation of the areas of the continental shelf which appertained to Malta
and Libya
- Issue: What is the basis of their entitlement to the continental shelf?
- Depicts the relationship between CIL and treaty law
- What source of law was applied in this case?
o Customary international law
- Malta advances equidistance principle since it is a party 1958 Geneva
Convention on Continental Shelf (Art. 6)
- Libya was not a party
- It was discounted by the ICJ.
- While both states are parties to the UNCLOS, it had not yet entered into
force.
- Geneva Convention was not applied because it was only Malta that was a
party to the convention. UNCLOS also was not applied since it has not yet
entered into force.
- The parties agreed that the law applicable for delimitation of the continental
shelf shared between them is the CIL requiring it to be effected by
application of equitable principles, giving due consideration to relevant
circumstances. (equitable solution – rejecting the contention of Malta in
applying the equidistance principle but conceding that distance remain
primary criterion)
- This is not to say that the UNCLOS (1982) was regarded by the parties as
irrelevant. The parties were in accord in considering that some of its
provisions constitute to a certain extent the expression of CIL in the matter.
UNCLOS was a codification of existing customary norms at that time
- Libya and Malta agreed that provisions of UNCLOS that have already
attained status of CIL may be applied in delimiting the continental shelf.
- ICJ: it is axiomatic that the material of CIL is to be looked for primarily in
the actual practice and opinion juris of States, even though multilateral
conventions may have an important role to play in recording and defining
rules deriving from custom, or indeed developing them.
- Nevertheless, it cannot be denied that the UNCLOS is of major importance,
having been adopted by an overwhelming majority of States; hence it is
clearly the duty of the Court, even independently of the references made to
the Convention by the Parties, to consider in what degree any of its relevant
provisions are binding upon the Parties as a rule of CIL.
- Libya’s argument: natural prolongation of the respective land territory of
the Parties into and under the sea is the basis of title.
o A State may claim 200 nautical miles from its baseline
- According to Libya, if natural prolongation cannot be followed, Rift Zone
Rule
o Fundamental discontinuity in the continental shelf of the two States
- ICJ reject Libya’s contentions. Distance between the two coastal states is
less than 200 miles, therefore Libya cannot apply natural prolongation or rift
zone rule
- Malta’s contention: equidistance principle (Art. 6 of the GCCS)
 o Draw a median line between the continental shelf
o Not applied since only Malta was a party to the convention; and it has
not attained customary law status; not obligatory
- ICJ used equitable principle;

Paquete Habana Case

- Where there no treaty or no controlling executive or legislative act or
judicial decision, resort must be had to the customs and usages of civilized
nations, and as evidence of these, to the works of jurists and commentators.
- Fishing vessels are exempt from capture as prize of war. Fishing vessels
pursuing purely commercial activity are exempt.
- This doctrine has been known by the US even before this dispute arose
- At present day, by the general consent of the civilized nations of the
world, independently of any express treaty or other public act, it is an
established rule of international law that coast fishing vessels, with their
implements and supplies, cargoes and crews, unarmed and honestly pursuing
their peaceful calling of catching and brining in fresh fish are exempt from
capture as prize of war.

Military and Paramilitary Activities (Nicaragua v US, ICJ (1986))

- Government of Pres. Zamoza of Nicaragua was replaced.
- Supporters of the former government opposed the new government. US
initially supported the new government but changed its attitude when it
found out that Nicaragua was providing logistical support and weapons to
guerillas in its neighboring country, El Salvador.
- In 1981, it stopped its aid to Nicaragua, and in September that same year, US
decided to plan and undertake activities directed against the current
Nicaraguan government.
- Contras – forces that carried out armed activities against the current
government; US effectively in control
- Some attacks against Nicaragua were carried out directly by the US military
with the aim to overthrow the government of Nicaragua
- Nicaragua further alleges that US aircrafts flew over Nicaraguan territory to
gather intelligence, supply to the Contras in the field, and intimidate the
population.
- ICJ ruled that the following rules were violated by US:
o Not to use force against another State (prohibition of the threat or use
of force)
 All members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the Purpose of the UN (Art 2 (4), UN
Charter)
 Most grave form of the use of force – constitute an
armed attack
 Other less grave forms – organizing, instigating,
assisting, or participating in acts of civil strife and
terrorist acts in another state; acts which involve a threat
or use of force but not amounting to an armed attack
 US violated this rule when it laid mines in Nicaraguan ports,
attacked ports, oil installations and naval bases; it assisted the
Contras by organizing or encouraging the organization of
irregular forces and armed bands
 Supplying funds to Contras, was it a violation of CIL? No, but
it was a violation of another CIL, the principle of non-
intervention of states.
o The right to collective self-defense (an exception to the prohibition of
use of force)
 Nothing in the present Charter shall impair the inherent right
of individual or collective self-defense if an armed attack
against a Member of the UN, until the Security Council has
taken measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this
right of self-defense shall be immediately reported to the
Security Council. (Art. 51, UN Charter)
  Individual or collective self-defense can only be
exercised in response to an armed attack
 Until the Security Council has taken measures necessary
to maintain peace and security
 When a state claims it used force in collective self-defense, the
Court shall examine:
 Whether the circumstances required for the exercise of
self-defense existed; and
 Whether the steps taken by the State, which was acting in
self-defense, corresponds to the requirements of
international law
 May a state, other than the attacked State, exercise a right to
collective self-defense based on its own assessment?
 No. It is only the victim state that will exercise its
right of collective self-defense based on its own
assessment, not on another State’s assessment.
 ICJ ruled that US did not comply with the requirements when it
exercised its right of collective self-defense. None of the
neighboring countries were subject to an armed attack by
Nicaragua. None of them declared as victims of an armed
attack. They did not request assistance from US to exercise its
right of collective self-defense. US did not claim when it used
force that it was acting under Art 51. They also did not report
that it acted on self-defense to the Security Council
o Principle of non-intervention (2019 Bar Exams)
 This requires that every State has a right to conduct its affairs
without outside interference. This principle forbids States or
groups of States to intervene directly or indirectly in internal or
external affairs of other States. This is corollary of the
principle of sovereign equality of States.
 When is intervention WRONGFUL?
 A prohibited intervention must accordingly be one
bearing on matters in which each State is permitted, by
the principle of State sovereignty to decide freely. One of
 these is the choice of a political, economic, social and
cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of
coercion in regard to such choices, which must remain
free ones, the element of coercion, which defines, and
indeed forms the very essence of prohibited intervention,
is particularly obvious in the case of an intervention
which uses force, either in the direct form of military
action, or in the indirect form of support for subversive or
terrorist armed activities within another State.
 ICJ ruled that the United States intended, by its support of the
contras, to coerce Nicaragua in respect of matters in which each
State is permitted, by the principle of State sovereignty, to
decide freely, and that the intention of the contras themselves
was to overthrow the present Government of Nicaragua. It
considers that if one State, with a view to the coercion of
another State, supports and assists armed bands in that State
whose purpose is to overthrow its government, that amounts
to an intervention in its internal affairs , whatever the
political objective of the State giving support.
o Principle of sovereignty of states
 It held that a State’s sovereignty extends to its internal waters,
its territorial sea, and the airspace above its territory. The US
violated CIL when it laid mines in the territorial seas and
internal waters of Nicaragua and when it carried out
unauthorized overflights over Nicaraguan airspace by aircrafts
that belong to or was under the control of the US.

General Principles of Law

- To provides solutions in cases where treaties and custom provide no
guidance
- DEFINITION: principles which are common to all or most national systems
of law; fill the gap in customary law and in treaty law (gap-fillers)
- Non-liquet – shortage of law; lack of applicable law in a certain dispute
 - BASES:
o Domestic laws common to all national legal systems (ex. In dubio pro
reo, prescription, exhaustion of administrative and local remedies)
o Natural justice (ex. Good faith, estoppel, proportionality)
o Logic (ex. Special laws prevail over general laws)
o Specific nature of the international community

Diversion of Water from the Meuse (Equity was applied)

- Belgium and Netherlands entered into a treaty regulation of the use of the
water of Meuse to ensure flow of navigation water flow between the two
countries.
- Following the construction of the Albert Canal of the Belgium side,
Netherlands complained that it was a violation of Art 1 of the treaty since it
changed the navigation system of the channel; Netherlands asked the Court
to stop the construction of the canal.
- Belgium says construction is within the terms of the treaty under Art. 36a,
and that the Netherlands have already done the same thing when it
constructed Juliana Canal.
- Belgium contends the construction of the Albert Canal was not a violation of
the treaty as much as the construction of the Juliana Canal was allowed
under the treaty. By constructing certain works contrary to the terms of the
treaty, the Netherlands forfeited the right to invoke the treaty against the
respondent
- ICJ: Nothing prevents countries from making such use as they may see fit of
the canals when the canals do not leave their territory. (each state is
sovereign)
- ICJ practiced the principle of equity – Under Art. 38 (2) of the ICJ Statute or
pursuant to the ex aequo et bono, the Netherlands cannot ask Belgium to
discontinue when they were performing similar constructions
- Principles of equity have long been considered to constitute a part of
international law, and as such they have often been applied by international
tribunals. The Court’s recognition of equity as a part of international law is
in no way restricted by the special power conferred upon it to decide a case
ex aequo et bono, if the parties agree thereto.
 - Where two parties have assumed an identical or a reciprocal obligation, one
party which is engaged in a continuing non-performance of an obligation
should not be permitted to take advantage of a similar non-performance of
that obligation by the other party.

Maritime Delimitation in the Black Sea (Romania v Ukraine)

- Serpent’s Island
- Romania claimed that Ukraine was developing said island to prove that it
was an island, rather than an islet. Under UNCLOS, baseline starts from
outermost islands for delimiting maritime zones
- Said island was only considered as an islet since it was not habitable
- In the delimitation process, the calculation of the relevant area does not
purport to be precise and is approximate. The object of delimitation is to
achieve a delimitation that is equitable, not an equal apportionment of
maritime areas.
- He who seeks equity must do equity (Anglo-American Law)

GOOD FAITH
New Zealand v France (Nuclear Tests Case)
- One of the basic principles governing the creation and performance of legal
obligations, whatever their sources, is the principle of good faith. Trust and
confidence are inherent in international cooperation. Just as the very
principle of pacta sunt servanda in the law of treaties is based on good faith,
so also is the binding character of an international obligation assumed by
unilateral declaration.
Elementary considerations of humanity
- Is there any law that prohibits the use of nuclear weapons?
The ICJ found that there is neither customary nor conventional
international law on a comprehensive or universal prohibition on the threat
or the use of nuclear weapons. However, the threat or use of nuclear
weapons that is contrary to Art 2 (4) of the UN Charter and fails to meet
the requirement of Art. 51 of the same is unlawful.
 The threat or use of nuclear weapons is not illegal under international
law, despite a large part of the international community moving towards
complete nuclear disarmament, provided the guidelines set out in Art 2(4)
and Art 51 of the UN Charter were followed.
- In conformity with the aforementioned principles, humanitarian law, at a
very early stage, prohibited certain types of weapons either because of their
indiscriminate effect on combatants and civilians or because of the
unnecessary suffering caused to combatants, that is to say, a harm greater
than that unavoidable to achieve legitimate military objectives.
- It is undoubtedly because a great many rules of humanitarian law applicable
in armed conflict are so fundamental to the respect of the human person and
"elementary considerations of humanity" have enjoyed a broad accession.
Further these fundamental rules are to be observed by all States whether or
not they have ratified the conventions that contain them, because they
constitute intransgressible principles of international customary law.

UK v. Albania (Corfu Channel Case)

- The obligations incumbent upon the Albanian authorities consisted in
notifying, for the benefit of shipping in general, the existence of a minefield
in Albanian territorial waters and in warning the approaching British
warships of the imminent danger to which the minefield exposed them. Such
obligations are based, not on the Hague Convention of 1907, but on certain
general and well-recognized principles, namely:
o elementary considerations of humanity, even more exacting in peace
than in war;
o the principle of the freedom of maritime communication;
o and every State's obligation not to allow knowingly its territory to be
used for acts contrary to the rights of other States.
- British ships exploded in Albanian waters because of the minefields under
Albanian waters. Albania argues that they were not aware of the existence of
such minefield
- Albania connived with the Yugoslavian authorities in laying the mines and
assuming that they did not connive, still it is impossible for Albania not to
have knowledge about the mines. Albania did not notify UK on the
 existence of the mines contrary to the Hague Convention in accordance with
the generally accepted principles of international law and humanity
- ICJ ruled that it must be concluded that the mine-laying was done at a time
when there was a close Albanian surveillance over the strait. If it be
supposed that it took place at the last possible moment, the only conclusion
to be drawn would be that a general notification to the shipping of all States
before the time of the explosions would have been difficult, perhaps even
impossible. But this would certainly not have prevented the Albanian
authorities from taking, as they should have done, all necessary steps
immediately to warn ships near the danger zone, more especially those
that were approaching that zone.

No-harm principle
US v. Canada (Trail Smelter Case)
- A State owes at all times a duty to protect other States against injurious
acts by individuals from within its jurisdiction.
- Colombia River between Canada and US, under the dominion of Canada,
surrounding areas developed, more smeltering companies
- A smelter was started under US auspices near the locality of Trail. Canada
obtained a charter of incorporation and acquired the smelter plant at Trail
- Canada, without interruption, has operated the smelter and later on
developed to become one of the biggest smelter plants in the continent
- 2 stacks of the plant erected = 409 ft height, greatly increased its smelting of
ores. This also increased the production of sulfur dioxide fumes in the air. It
is the claim of the government that the added height of the stacks increased
the area of damage in US. (Washington)
- US proposed to Canada that problems growing out of the operation of the
Trail Smelter be referred to the International Joint Commission for
investigation and report.
- ISSUES:
o Whether damage has occurred since the first day? YES. What
indemnity should be paid therefore? The Court ordered Canada to
pay.
 o If the answer to the first part of the issue is in the affirmative, whether
the Trail Smelter should be required to refrain from causing damage
in the state of Washington, and if so, to what extent?
- US laws were not applied since it involved another state. One cannot impose
its laws unto another state since this would constitute a violation of
sovereignty.
- So long as fumigations occur in the State of Washington because of the
operation of Trail Smelter, Canada should be refrained from causing any
damage.

Res Judicata
Bosnia & Herzegovina v Serbia & Montenegro (Genocide Convention)
- This principle signifies that the decisions of the Court are not only binding
on the parties, but are final, in the sense that they cannot be reopened by the
parties as regards the issues that have been determined, save by procedures,
of an exceptional nature, specially laid for that purpose.
- Respondents questioned the ICJ’s jurisdiction over them; they were not a
party to the Convention, and therefore the Court did not acquire jurisdiction
over them
- Respondents were formerly part of Yugoslavia
- Applicant contends that ICJ should not examine the question raised by the
respondents because the respondents were under a duty to raise the issue as
to whether Yugoslavia was a member of the UN at the time of the
proceedings on the preliminary objections; failing to do so, the principle of
res judicata attaching to that judgment prevents it from reopening the issue.
Also, the Court already judging that they had jurisdiction over the case
would be a breach of the said principle.
- ICJ: (first contention) when a party chooses not to raise an issue of
jurisdiction by way of preliminary objection, that party is not necessarily
debarred from raising such issue during the proceedings.
- The Court does not however find it necessary to consider here whether the
conduct of the Respondent could be held to constitute an acquiescence in the
jurisdiction of the Court. Such acquiescence, if established, might be
relevant to questions of consensual jurisdiction, but not to the question
 whether a State has the capacity under the Statute to be a party to
proceedings before the Court.
- The latter question may be regarded as an issue prior to that of jurisdiction
ratione personae, or as one constitutive element within the concept of
jurisdiction ratione personae. Either way, unlike the majority of questions of
jurisdiction, it is not a matter of the consent of the parties.
- It follows that, whether or not the Respondent should be held to have
acquiesced in the jurisdiction of the Court in this case, such acquiescence
would in no way debar the Court from examining and ruling upon the
question stated above. The same reasoning applies to the argument that the
Respondent is estopped from raising the matter at this stage, or debarred
from doing so by considerations of good faith.
- Two purposes of res judicata:
o The stability of legal relations requires that litigation must come to an
end;
o It is in the interest of each party that an issue which has already been
adjudicated in favor of that party be not argued again.
- It has however been suggested by the Respondent that a distinction may be
drawn between the application of the principle of res judicata to judgments
given on the merits of a case, and judgments determining the Court’s
jurisdiction.
o The Court will however observe that the decision on questions of
jurisdiction, pursuant to Article 36, paragraph 6, of the Statute, is
given by a judgment, and Article 60 of the Statute provides that “[t]he
judgment is final and without appeal”, without distinguishing
between judgments on jurisdiction and admissibility, and judgments
on the merits
- The operative part of a judgment of the Court possesses the force of res
judicata. The operative part of the 1996 Judgment stated that the Court found
“that, on the basis of Article IX of the Convention on the Prevention and
Punishment of the Crime of Genocide, it has jurisdiction to decide upon the
dispute
o Disputes between the Contracting Parties relating to the
interpretation, application or fulfilment of the present
 Convention, including those relating to the responsibility of a State
for genocide or for any of the other acts enumerated in article III,
shall be submitted to the International Court of Justice at the
request of any of the parties to the dispute. (Art. IX)
- That jurisdiction is thus established with the full weight of the Court’s
judicial authority. For a party to assert today that, at the date the 1996
Judgment was given, the Court had no power to give it, because one of the
parties can now be seen to have been unable to come before the Court is to
call in question the force as res judicata of the operative clause of the
Judgment.
- The Court accordingly concludes that, in respect of the contention that the
Respondent was not, on the date of filing of the Application instituting
proceedings, a State having the capacity to come before the Court under the
Statute, the principle of res judicata precludes any reopening of the decision
embodied in the 1996 Judgment

Secondary Sources of International Law

Judicial decisions
- Subsidiary sources of international law or subsidiary means for the
determination of rules of law, but they carry substantial interpretative
weight.
- The decision of the Court has no binding force EXCEPT between the parties
and in respect of that particular case. (Art. 59, ICJ Statute)
- Doctrine of stare decisis is not applicable. Courts are not obliged to follow
previous decisions, but it strives to maintain judicial consistency and usually
makes references to case law.
- Decisions of domestic courts are also sources of International Law, insofar
as decisions of the Supreme Court of each domestic system. (also covered in
Art. 38 (1)(d) of the ICJ Statute)
Learned writers
- Publicists
- Like judicial decisions, learned writings can be evidence of customary law,
but they can also play a subsidiary role in developing new rules of law.
International Law Commission
- The contributions of the ILC play a special role in the international law. It
was established with the primary purpose of promoting the progressive
development of international law and its codification.
- Selects topics and makes proposals for draft conventions and codifications.
Usually, once a topic has been chosen for consideration, working group will
be formed and a Special Rapporteur will be appointed who will produce a
series of reports that may contain concrete proposals. In turn, these may lead
to the adoption of important conventions. When that is the case, the
commission’s draft articles and commentaries there and serve as valuable
interpretative tools (or sources of law).

Other sources of international law

- Acts (resolutions) of international organizations
o They have to be examined in conjunction with all the other evidence
of customary law
o If there is no corresponding practice, the mere statement of what the
law is supposed to be is not a sufficient basis, but nothing more than
an attempt on the part of the State to clarify their respective positions
- Soft law
o Norms of behavior that is non-legally binding
o Neither strictly binding norms of law, nor completely irrelevant
political maxims, and operate in a grey zone between law and politics;
particularly prevalent in international economic law and of
international environmental law, international cyber security
o Treaties not yet in force, or in resolutions of international conferences
which lack legally binding qualities.
o States do not wish to bind themselves legally, but nevertheless wish to
adopt and test certain rules before they become law.
SOFT LAW HARD LAW
Non-legally binding or a mere Legally binding
political pledge
Creation is generally faster Tedious and complex process
A more flexible way to establish Ordinarily imposes sanctions on
 an expectation of behavior violations thereof
Violations of which will not be
met with legal sanctions
o In practice, soft law instruments may have an impact on the formation
of customary international law as both reflection of state practice as
well as opinion juris
o Declarations and principles from the UNGA illustrate while soft law
instruments are not legally binding on their own terms, they may in
certain circumstances assist in the crystallization of customary law and
on that basis assist in the creation of hard international law.
- Equity
o The court may decide cases ex aequo et bono, but only when the
parties agree thereto.
o Use equity to interpret international law? Yes, even though the court
is not authorized by the parties.
- Unilateral statements
o Oral or written. It need not be couched in written form. The sole
relevant question is whether the language employed in any given
declaration does reveal a clear intention.
o Like treaties, binding unilateral declarations can be issued by heads of
state, heads of government, and ministers for foreign affairs.
o A unilateral declaration should, however, only be considered binding
if it is stated in clear and specific terms

Eastern Greenland Case

- The PCIJ (predecessor of ICJ) interpreted the Ilhen Declaration issued by a
Norwegian foreign minister as a statement that was legally binding on
Norway. The Foreign Minister of Norway, Mr. Ilhen, referred to Danish
claims to the whole of Greenland and stated that his country (Norway)
would not make any difficulties in the settlement of the question.
- Statement was unconditional and definitive and therefor binding.

Nuclear Tests Case (New Zealand v France)

- France completed a series of nuclear tests (atmospheric testing) which
resulted to radioactive fallout which Australia and NZ claim that it had
negatively impacted them
- NZ filed before ICJ to order France to seize from conducting of nuclear tests
- France maintained it no longer had obligation since while the case was
pending, the French president gave several speeches directed at Australia
claiming to have finished all nuclear testing. It moved to dismiss the case
since an ICJ ruling would be redundant
- The French president expressed that he had made it clear that this round of
atmospheric tests would be the last. (obligation imposed upon France itself)
- ISSUE: Whether the unilateral statements made by the French president are
binding? YES.
- Of the statements by the French Government… those made by the President,
in view of his functions, that his public communications or statements, oral
or written, as Head of State, are in international relations acts of the French
State. His statements, and those of members of the French Government
acting under his authority, up to the last statement made by the Minister of
Defense, constitute a whole. Thus, in whatever form these statements were
expressed, they must be held to constitute an engagement of the State,
having regard to their intention and to the circumstances in which they were
made
- It is from the actual substance of these statements, and from the
circumstances attending their making, that the legal implications of the
unilateral act must be deduced. The objects of these statements are clear and
they were addressed to the international community as a whole, and the
Court holds that they constitute an undertaking possessing legal effect
- Declarations made by way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal obligations. Declarations of
this kind may be, and often are, very specific. When it is the intention of the
State making the declaration that it should become bound according to its
terms, that intention confers on the declaration the character of a legal
undertaking, the State being thenceforth legally required to follow a course
of conduct consistent with the declaration
 - An undertaking of this kind, if given publicly, and with an intent to be
bound, even though not made within the context of international
negotiations, is binding. In these circumstances, nothing in the nature of a
quidpro quo nor any subsequent acceptance of the declaration, nor even any
reply or reaction from other States, is required for the declaration to take
effect, since such a requirement would be inconsistent with the strictly
unilateral nature of the juridical act by which the pronouncement by the state
was made.
- Trust and confidence are inherent in international co-operation, in particular
in an age when this cooperation in many fields is becoming increasingly
essential. Just as the very rule of pacta sunt servanda in the law of treaties is
based on good faith, so also is the binding character of an international
obligation assumed by unilateral declaration. Thus interested States may
take cognizance of unilateral declarations and place confidence in them, and
are entitled to require that the obligation thus created be respected.

Hierarchy
- The international legal system is by and large a horizontal legal order
without a hierarchy. Therefore, there is no hierarchy of sources of
international law. Apart from the distinction between primary and secondary
sources of law in Art. 38 of the ICJ Statute, all legal sources are deemed to
have the same normative status. (Presumption of Normative Equality)
o EXCEPTIONS
 Peremptory norms or jus cogens
 Norms 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. (Art. 53, Vienna Convention on the
Law of Treaties)
 A rule cannot become a peremptory norm unless it is
accepted and recognized by the international community
of states as a whole; cannot be imposed a significant
minority
  Vs. treaty = a treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of
general international law.
 If a new peremptory norm of general international law
emerges, any existing treaty which is in conflict with that
norm becomes void and terminates. (Art. 64, VLCT)
(existing treaties in conflict with new jus cogens)
 Ergo omnes obligations
 An obligation of every State towards the international
community as a whole. All states have a legal interest in
its compliance, and thus are entitled to invoke
responsibility for breach of such an obligation
 Barcelona Traction Case
o Barcelona Traction, Light, and Power Company,
Ltd was a corporation incorporated in Canada,
with Toronto headquarters, that made and supplied
electricity in Spain. It had issued bonds to non-
Spanish investors, but during the Spanish Civil
War (1936–1939) the Spanish government refused
to allow BTLP to transfer currency to pay
bondholders the interest they were due. In 1948 a
group of bondholders sued in Spain to declare that
BTLP had defaulted on the ground it had failed to
pay the interest. The Spanish court allowed their
claim. The business was sold, the surplus
distributed to the bondholders, and a small amount
was paid to shareholders. The shareholders in
Canada succeeded in persuading Canada and other
states to complain that Spain had denied justice
and violated a series of treaty obligations.
However, Canada eventually accepted that Spain
had the right to prevent BTLP from transferring
currency and declaring BTLP bankrupt. Of the
shares, 88% were owned by Belgians, and the
 Belgian government complained, insisting the
Spanish government had not acted properly. They
made an initial claim at the International Court of
Justice in 1958, but later withdrew it to allow
negotiations. Subsequent negotiations broke down,
and a new claim was filed in 1962. Spain
contended that Belgium had no standing because
BTLP was a Canadian company.
o ISSUE: Whether the Belgian Government had the
right to exercise diplomatic protection of Belgian
shareholders?
o RULING: None. Only the nationality of the
corporation has the right to exercise diplomatic
protection of shareholders, not the nationality of
the shareholders.
 Obligations to respect the diplomatic
protection of shareholders has not attained
an erga omnes character because it is not an
interest of all states.
 An essential distinction should be drawn
between the obligations of a State towards
the international community as a whole, and
those arising vis-à-vis another State in the
field of diplomatic protection. By their very
nature the former are the concern of all
States.
 Obligations the performance of which is the
subject of diplomatic protection are not of
the same category. It cannot be held, when
one such obligation in particular is in
question, in a specific case, that all States
have a legal interest in its observance
 the Belgian Government would be entitled
to bring a claim if it could show that one of
its rights had been infringed and that the acts
 complained of involved the breach of an
international obligation arising out of a
treaty or a general rule of law.
 Obligations under UN Charter
 Obligations under the Charter prevail if they conflict with
obligations under any other international agreement. (Art.
103, UN Charter)
 Since Art. 25 of the Charter obliges member states to
accept and carry out resolutions of the UN Security
Council, the practical effect of Art. 103 is that states must
comply with the Council’s resolutions even if it means
that they thereby violate other international legal
commitments.

Jus cogens < Treaty < Custom < GAPIL < Subsidiary sources

PART III. INTERNATIONAL LAW AND MUNICIPAL LAW

RELATIONSHIP:
- It relates to the manner in which international law is applied in national legal
systems
- National implementation and concrete application of international law is a
constitutional issue which varies from state to state
DUALIST MONIST
Pluralist theory Perceives both international and
municipal law as forming part of one
and the same legal order
Assumes that international law and Holds that international law can be
municipal law are two separate legal applied directly in the national legal
systems which exist independently of system of states and that international
each other law norm prevails in the case of
conflict

The attitude of international law to municipal law

 - the general rule of international law is that a state cannot plead a rule of or a
gap in its own municipal law as a defense to a claim based on international
law.
- Article 27 of the Vienna Convention on the Law of Treaties: ‘A party may
not invoke the provisions of its internal law as justification for its failure to
perform a treaty.’

The attitude of national legal systems to international law

- most states do not give primacy to international law over their own
municipal law.
- However, this does not necessarily mean that most states would disregard
international law altogether.
- Transformation – an international law is transformed to domestic law
through a constitutional mechanism such as local legislation
- Incorporation – by mere constitutional declaration, international law is
deemed to have the force of a domestic law.
Philip Morris v CA
- Petitioners allege that Fortune Tobacco had no right to manufacture and sell
cigarettes bearing the mark “Mark”, in contravention of Sec. 22 of the then
Trademark Law.
- Petitioner also invokes Art 2 of Paris Convention which protects trademarks
as a matter of a treaty obligation with no condition as to the possession of a
domicile or establishment in the country where protection is claimed.
(Ratified)
- petitioners are of the impression that actual use of their trademarks in
Philippine commercial dealings is not an indispensable element under
Article 2 of the Paris Convention
- Private respondent alleged further that it has been authorized by the Bureau
of Internal Revenue to manufacture and sell cigarettes bearing the trademark
"MARK", and that "MARK" is a common word which cannot be exclusively
appropriated
- Sec. 2. What are registrable. — Trademarks, tradenames and service marks
owned by persons, corporations, partnerships or associations domiciled in
the Philippines and by persons, corporations, partnerships or associations
 domiciled in any foreign country may be registered in accordance with the
provisions of this Act; Provided, That said trademarks, tradenames, or
service marks are actually in use in commerce and services not less than
two months in the Philippines before the time the applications for
registration are filed
- our municipal law on trademarks regarding the requirement of actual use in
the Philippines must subordinate an international agreement inasmuch as the
apparent clash is being decided by a municipal tribunal 
- Withal, the fact that international law has been made part of the law of
the land does not by any means imply the primacy of international law
over national law in the municipal sphere. Under the doctrine of
incorporation as applied in most countries, rules of international law are
given a standing equal, not superior, to national legislative enactments
- In a situation, however, where the conflict is irreconcilable and a choice has
to be made between a rule of international law and municipal law,
jurisprudence dictates that municipal law should be upheld by the municipal
courts (Sec. of Justice v Lantion)

Gov. of Hongkong v. Hon. Olalia

-  this Court cannot ignore the following trends in international law:
o (1) the growing importance of the individual person in public
international law who, in the 20th century, has gradually attained
global recognition;
o (2) the higher value now being given to human rights in the
international sphere;
o (3) the corresponding duty of countries to observe these universal
human rights in fulfilling their treaty obligations; and
o (4) the duty of this Court to balance the rights of the individual under
our fundamental law, on one hand, and the law on extradition, on the
other.
- The modern trend in public international law is the primacy placed on
the worth of the individual person and the sanctity of human rights.
Slowly, the recognition that the individual person may properly be a subject
of international law is now taking root. The vulnerable doctrine that the
 subjects of international law are limited only to states was dramatically
eroded towards the second half of the past century.
- The Philippines, along with the other members of the family of nations,
committed to uphold the fundamental human rights as well as value the
worth and dignity of every person. This commitment is enshrined in Section
II, Article II of our Constitution which provides: "The State values the
dignity of every human person and guarantees full respect for human rights."
The Philippines, therefore, has the responsibility of protecting and
promoting the right of every person to liberty and due process, ensuring
that those detained or arrested can participate in the proceedings before a
court, to enable it to decide without delay on the legality of the detention and
order their release if justified. 
- If bail can be granted in deportation cases, we see no justification why it
should not also be allowed in extradition cases. Likewise, considering that
the Universal Declaration of Human Rights applies to deportation cases,
there is no reason why it cannot be invoked in extradition cases. After all,
both are administrative proceedings where the innocence or guilt of the
person detained is not in issue.
- Clearly, the right of a prospective extraditee to apply for bail in this
jurisdiction must be viewed in the light of the various treaty obligations of
the Philippines concerning respect for the promotion and protection of
human rights. Under these treaties, the presumption lies in favor of human
liberty. Thus, the Philippines should see to it that the right to liberty of every
individual is not impaired.

PART IV. The Law on Treaties

Vienna Convention on the law of Treaties
- Adopted on May 1969 and entered into force in January 1980
- This is applied to all types of written treaties and it therefore governs
treaties as diverse as a bilateral agreement to construct infrastructure as well
as a multi-lateral document such as the UN charter.
o Oral agreements are also treaties for the purposes of international law.
 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 (Art. 3, VLCT)
TREATY – 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 (Art.
2(a), VCLT)

There are no specific requirements of form and international law for the existence
of a treaty, although it is essential that the parties intend to create legal relations
as between themselves by means of their agreement.
Informal instruments do not include the intention to create a binding arrangement.

Political pledge – only when it is accompanied with a desire to create rights and
obligations under international law

International organizations may enter into treaties governed by international law

but will not be governed by VCLT, rather by the 1986 VCLT between
international organizations or between states and international organizations.

Greece v Turkey
- Brussels Communique
- On the question of form, the Court need only observe that it knows of no
rule of international law which might preclude a joint communiqué from
constituting an international agreement to submit a dispute to arbitration or
judicial settlement (cf. Arts. 2, 3 and 11 of the Vienna Convention on the
Law of Treaties). Accordingly, whether the Brussels Communiqué of 31
May 1975 does or does not constitute such an agreement essentially depends
on the nature of the act or transaction to which the Communiqué gives
expression; and it does not settle the question simply to refer to the form-a
communiqué-in which that act or transaction is embodied. On the contrary,
in determining what was indeed the nature of the act or transaction
embodied in the Brussels Communiqué, the Court must have regard above
 all to its actual terms and to the particular circumstances in which it was
drawn up.
- Whether the communique constituted an international agreement between
Greece and Turkey, and that it conferred jurisdiction over the dispute of the
continental shelf of the Aegean Sea? No.
o It is true that the Communiqué records the decision of the Prime
Ministers that certain problems in the relations of the two countries
should be resolved peacefully by means of negotiations, and as
regards the continental shelf of the Aegean Sea by the Court.
o they also defined the general lines on the basis of which the
forthcoming meetings of the representatives of the two Governments
would take place and decided in that connection to bring forward the
date of the meeting of experts. These statements do not appear to the
Court to be inconsistent with the general position taken up by Turkey
in the previous diplomatic exchanges: that it was ready to consider a
joint submission of the dispute to the Court by means of a special
agreement
o At the same time, the express provision made by the Prime Ministers
for a further meeting of experts on the continental shelf does not seem
easily reconcilable with an immediate and unqualified commitment to
accept the submission of the dispute to the Court unilaterally by
Application. In the light of Turkey's previous insistence on the need to
"identify" and "elucidate" the issues in dispute, it seems unlikely that
its Prime Minister should have undertaken such a commitment in such
wide and imprecise terms.
o The information before the Court concerning the negotiations between
the experts and the diplomatic exchanges subsequent to the Brussels
Communiqué appears to confirm that the two Prime Ministers did not
by their "decision" undertake an unconditional commitment t0 submit
the continental shelf dispute to the Court. The two sides, it is true, put
somewhat different interpretations upon the meaning of the
Communiqué, the Turkish side insisting upon the need for meaningful
negotiations on the substance of the dispute before any submission to
the Court, the Greek side pressing for the case to be taken directly to
 the Court. From the first, however, the Turkish side consistently
maintained the position that reference of the dispute to the Court was
to be contemplated only on the basis of a joint submission after the
conclusion of a special agreement defining the issues to be resolved
by the Court. Even the Greek Government, while arguing in favour of
immediate submission of the dispute to the Court, referred to the
drafting of a special agreement as "necessary" for submitting the issue
to the Court
o Accordingly, having regard to the terms of the Joint Communiqué of
31 May 1975 and to the context in which it was agreed and issued, the
Court can only conclude that it was not intended to, and did not,
constitute an immediate commitment by the Greek and Turkish Prime
Ministers, on behalf of their respective Governments, to accept
unconditionally the unilateral submission of the present dispute to
the Court. It follows that, in the opinion of the Court, the Brussels
Communiqué does not furnish a valid basis for establishing the
Court's jurisdiction to entertain the Application filed by Greece on 10
August 1976.

Qatar v. Bahrain
- Bahrain: minutes of the meeting were nothing than records of negotiations
- International instruments may take a number of forms and be given a
diversity of names. Article 2(1)(a) of the VLCT defines a treaty. To
ascertain whether an agreement of that kind has been constituted, the court
must have a card above all to its actual terms and to the particular
circumstances in which it is drawn up.
- Accordingly, and contrary to the contentions of Bahrain, the Minutes are not
a simple record of a meeting, similar to those drawn up within the
framework of the Tripartite Committee; they do not merely give an account
of discussions and summarize points of agreement and disagreement. They
enumerate the commitments to which the Parties have consented. They thus
create rights and obligations in international law for the Parties. They
constitute an international agreement.
Authority to conclude a treaty; capacity
Every state possesses capacity to conclude treaties. (Art. 6, VCLT)
o Not all representatives are competent to conclude treaties in behalf of
the State

Full Power
- 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
- Not all representatives need to show document authorizing full power

State Representatives without need for full powers

2. In virtue of their functions and without having to produce full powers, the
following are considered as representing their State:
(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, for the purpose of adopting the
text of a treaty in that conference, organization or organ.

Consent – flexible
- Article 11, VCLT - Means of expressing consent to be bound by a treaty
o The consent of a State to be bound by a treaty may be expressed by:
1. Signature
2. exchange of instruments constituting a treaty
3. ratification
4. acceptance
5. approval or accession, or
6. by any other means if so agreed.
 When a State has consented to be bound by the treaty and has become a
Party to it, the State must comply to its terms (principle of pacta sunt servanda)

Article 12. Consent to be bound by a treaty expressed by signature

1. The consent of a State to be bound by a treaty is expressed by the
signature of its representative when:
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States were agreed that
signature should have that effect; or
(c) the intention of the State to give that effect to the signature appears from
the full powers of its representative or was expressed during the negotiation.

What if the treaty is subject to acceptance, approval or ratification? Does the

signature of the State mean consent to be bound by the treaty?
No. Where the convention is subject to acceptance, approval, or ratification,
signature will, in principle, mean a formality and will mean no more than that state
representatives have agreed upon an acceptable text, which will be forwarded to
their particular governments for the necessary decision as to acceptance or
rejection.
Pending ratification, acceptance or approval, a state must refrain from acts
which would defeat the object and purpose of the treaty until such time as its
intentions with regard to the treaty have been made clear.

Article 13 Consent to be bound by a treaty expressed by an exchange of

instruments constituting a treaty
The consent of States to be bound by a treaty constituted by instruments
exchanged between them is expressed by that exchange when:
(a) the instruments provide that their exchange shall have that effect; or
(b) it is otherwise established that those States were agreed that the
exchange of instruments should have that effect.

Article 14 Consent to be bound by a treaty expressed by ratification, acceptance or

approval
1. The consent of a State to be bound by a treaty is expressed by ratification when:
 (a) the treaty provides for such consent to be expressed by means of
ratification;
(b) it is otherwise established that the negotiating States were agreed that
ratification should be required;
(c) the representative of the State has signed the treaty subject to
ratification; or
(d) the intention of the State to sign the treaty subject to ratification appears
from the full powers of its representative or was expressed during the negotiation.
2. The consent of a State to be bound by a treaty is expressed by acceptance or
approval under conditions similar to those which apply to ratification.

Signature v Ratification
In some circumstances, consent to be bound to a treaty requires not only a
signature by the potential state party in question, but also a subsequent
confirmation by the state that it intends to be bound by the treaty.
When subsequent ratification is required, the initial signature is not yet
confirmation that the state intends to be bound by the treaty.
The delay between signature and ratification may often be advantageous in
allowing extra time for consideration, once the negotiating process has been
completed.
If it is not specified that ratification is necessary, there is a presumption that
ratification is not required.

Article 15 Consent to be bound by a treaty expressed by accession

The consent of a State to be bound by a treaty is expressed by accession
when:
(a) the treaty provides that such consent may be expressed by that State by
means of accession;
(b) it is otherwise established that the negotiating States were agreed that
such consent may be expressed by that State by means of accession; or
(c) all the parties have subsequently agreed that such consent may be
expressed by that State by means of accession.

Reservation
 - 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 (Art. 2(d), VCLT)
- The capacity of a state to make reservations to an international treaty
illustrates the principle of sovereignty of states, whereby a state may refuse
its consent to particular provisions so that they do not become binding upon
it.

Mere (Simple) Interpretative Declarations – mere political manifestation that

has no binding effect upon other parties

Qualified Interpretative Declaration – Capable of constituting reservations;

thus, create a binding effect upon other parties

Conditional Interpretative Declaration – refer to a situation where the state

subjects its consent to be bound by the treaty to a specific interpretation of the
treaty, or specific provisions thereof.

Traditional or Unanimity Principle – reservations are not valid unless accepted

by all contracting parties.
State wishing to make a reservation had to obtain the consent of all the
parties. If this was not possible, the state could either:
a. Be a party to the original treaty sans the reservation; or
b. Not become a party at all

The Genocide Reservations Case

A state which has made and maintained a reservation which has been
objected to by one or more parties to the convention but not by others, can be
regarded as being a party to the convention, if the reservation is compatible with
the object and purpose of the convention.

Article 19 Formulation of reservations (RESERVATIONS WHEN NOT

ALLOWED)
 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; or
(c) in cases not failing under subparagraphs (a) and (b), the reservation is
incompatible with the object and purpose of the treaty.
-- the object and purpose of the treaty is compromised if the reservation
affects an essential element of the treaty that is necessary to its general
dinner, in such a way that the reservation impairs the raison d’être of the
treaty.

Acceptance of Reservation, when required

1. A reservation expressly authorized by a treaty does not require any
subsequent acceptance by the other contracting States unless the treaty so
provides.
2. When it appears from the limited number of the negotiating States and the
object and purpose of a treaty that the application of the treaty in its entirety
between all the parties is an essential condition of the consent of each one to
be bound by the treaty, a reservation requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an international organization
and unless it otherwise provides, a reservation requires the acceptance of the
competent organ of that organization.
4. In cases not falling under the preceding paragraphs and unless the treaty
otherwise provides: (ACCEPTANCE OF RESERVATIONS WHEN
NOT PROVIDED IN A TREATY)
a. acceptance by another contracting State of a reservation constitutes
the reserving State a party to the treaty in relation to that other State if
or when the treaty is in force for those States;
b. an objection by another contracting State to a reservation does not
preclude the entry into force of the treaty as between the objecting and
reserving States unless a contrary intention is definitely expressed by
the objecting State;
 c. an act expressing a State’s consent to be bound by the treaty and
containing a reservation is effective as soon as at least one other
contracting State has accepted the reservation.
5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise
provides, a reservation is considered to have been accepted by a State if
it shall have raised no objection to the reservation by the end of a period
of twelve months after it was notified of the reservation or by the date on
which it expressed its consent to be bound by the treaty, whichever is
later.

Article 21 Legal effects of reservations and of objections to reservations

1. A reservation established with regard to another party in accordance
with articles 19, 20 and 23:
(a) modifies for the reserving State in its relations with that other party the
provisions of the treaty to which the reservation relates to the extent of the
reservation; and
(b) modifies those provisions to the same extent for that other party in its
relations with the reserving State.

2. The reservation does not modify the provisions of the treaty for the
other parties to the treaty inter se.

3. When a State objecting to a reservation has not opposed the entry into
force of the treaty between itself and the reserving State, the provisions to which
the reservation relates do not apply as between the two States to the extent of the
reservation.

Three (3) ways, reaction to reservations:

1. Exit the reservation in which event the treaty will enter into force between
the two states with the reservation in force;
2. Object to the reservation and expressed an intention that the treaty as a
whole should not enter in the force between the states -- the treaty will not
govern the two states’ relations;
3. Object to the treaty but refrain from expressing an intention that the treaty as
a whole should not enter into force between the two states
Ratification when made.
According to article 19 of the VCLT, reservations must be made by a state
when signing, ratifying, accepting, approving or acceding a treaty, and there is no
mention of a right to make a reservation after the treaty in question has been
ratified. (subsequent reservation cannot be effected unless accepted by the other
contracting parties)

Article 24 Entry into force

1. A treaty enters into force in such manner and upon such date as it may
provide or as the negotiating States may agree.

2. Failing any such provision or agreement, a treaty enters into force as soon
as consent to be bound by the treaty has been established for all the negotiating
States.

3. When the consent of a State to be bound by a treaty is established on

a date after the treaty has come into force, the treaty enters into force for that
State on that date, unless the treaty otherwise provides.

4. The provisions of a treaty regulating the authentication of its text, the

establishment of the consent of States to be bound by the treaty, the manner or date
of its entry into force, reservations, the functions of the depositary and other
matters arising necessarily before the entry into force of the treaty apply from the
time of the adoption of its text.

Good faith requires that the state is not entirely free to do as it pleases between the
time it had given its consent and the time the treaty enters into force. (No legal
obligation in between)

Interim period (Art. 18(b), VCLT)

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.

Article 25 Provisional application

1. A treaty or a part of a treaty is applied provisionally pending its entry into force
if:
(a) the treaty itself so provides; or
(b) the negotiating States have in some other manner so agreed.

2. Unless the treaty otherwise provides or the negotiating States have otherwise
agreed, the provisional application of a treaty or a part of a treaty with respect to a
State shall be terminated if that State notifies the other States between which the
treaty is being applied provisionally of its intention not to become a party to the
treaty. (when provisional application is terminated)

Third State – a state not a party to the treaty

Application of treaties:
- International agreements bind only the parties to them. A treaty does not
create either obligations or rights for a third state without its consent (GR)
- (XPN) Where the provisions of the treaty in question have entered into
customary international law.

Article 35 Treaties providing for obligations for third States

An obligation arises for a third State from a provision of a treaty if the
parties to the treaty intend the provision to be the means of establishing the
obligation and the third State expressly accepts that obligation in writing.

Article 31. General rule of interpretation

1. 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.
Elements:
o Object or text
o Subjective or intention
o Teleological or object and purpose

2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the
parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection
with the conclusion of the treaty and accepted by the other parties as an instrument
related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between
the parties.

4. A special meaning shall be given to a term if it is established that the parties so

intended.

Approaches to Treaty Interpretation (MEMORIZE)

1. Textualist approach
a. In Kasikli/Sedudu Island, the ICJ employed the dictionary approach to
find the ordinary meaning of an important term in a treaty
b. Interpretation must be based above all upon the text of the treaty. As a
supplementary measure recourse may be had to means of
 interpretation such as the preparatory work of the treaty and the
circumstances of its conclusion. (Territorial Dispute Case)
Territorial Dispute Case
- “The two high contracting parties recognize that the frontiers between the
territories of Tunisia, Algeria, French west Africa and French Equatorial
Africa on the one hand, and the territory of Libya on the other, are those that
result from the international instruments in force on the date of the
constitution of the United Kingdom of Libya as listed in the attached
Exchange of Letters (Ann. I)”
- The word "recognize" used in the Treaty indicates that a legal obligation is
undertaken. To recognize a frontier is essentially to "accept" that frontier,
that is, to draw legal consequences from its existence, to respect it and to
renounce the right to contest it in future.
- the terms of the Treaty signified that the parties thereby recognized complete
frontiers between their respective territories as resulting from the combined
effect of al1 the instruments listed in Annex 1; no relevant frontier was to be
left undefined and no instrument listed in Annex 1 was superfluous. xxx
- By entering into the Treaty, the parties recognized the frontiers to which the
text of the Treaty referred; the task of the Court is thus to determine the
exact content of the undertaking entered into.
2. Teleological approach
a. In Whaling, the ICJ underscored that treaty terms are not to be
determined in the abstract, but in light of its context, object and
purpose. Apart from the preamble, reference is made to the treaty’s
historical, political and social factors.
Whaling in the Antarctic Case
- “notwithstanding anything contained in this convention any contracting
government may grant to any of its nationals a special permit authorizing
that national to kill, take and treat whaless for purposes of scientific research
subject to such restrictions as to number and subject to such other conditions
as the contracting government thinks fit, and the killing, taking, and treating
of whales in accordance with the provisions of this Article shall be exempt
from the operation of this Convention.” -Art. VIII (1), ICRW
- Taken as a whole, the Court considers that JARPA II involves activities that
can broadly be characterized as scientific research (see paragraph 127
above), but that the evidence does not establish that the programme’s design
and implementation are reasonable in relation to achieving its stated
objectives. The Court concludes that the special permits granted by Japan for
the killing, taking and treating of whales in connection with JARPA II are
not “for purposes of scientific research” pursuant to Article VIII, paragraph
1, of the Convention.
3. Evolutionary approach
a. Any evidence of the treaty’s past and then should be viewed against
the contemporary socio-legal context under which it is to be
implemented.
b. When appropriate
i. Terms of the treaty embrace change
1. An evolutionary approach is proper when the terms of the
treaty maybe such as to embrace change of meaning to
expand their coverage so as to include new activities,
scientific advances, and technological developments not
specifically conceived at the time the treaty was drawn
up.
ii. Developments in the legal system
1. An evolutionary approach can also be applied where
there are developments in the legal system which may
have impacts on the treaty under consideration.
iii. Treaty regime inherently adapted to development
1. An evolutionary interpretation is proper for treaties
which constitute a regime of a nature inherently adapted
to development, as where the treaty contains broad
propositions of principle which necessarily involve
elaboration to have precise effect.
4. Systemic integration
a. This contemplates the treaties are themselves creatures of
international law. Thus, the treaty must refer to principles of
international law relevant to the parties for questions it does not
dissolve resolve expressly.
 b. “There shall be taken into account, together with the context: xxx
i. Any relevant rules of international law applicable in the
relations between the parties (Art. 31 (3)(c), VCLT)
Hassan v. UK
- The European Convention on Human Rights must be interpreted in harmony
with other rules of international law of which it forms part, including
international humanitarian law.
5. Subsequent practice
o There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its
interpretation
o A consistent practice on the part of the High Contracting Parties,
subsequent to the ratification of the Convention, could be taken as
establishing their agreement not only as regards interpretation but
even to modify the text of the Convention.

Fundamental rules of Treaty Interpretation

1. Good faith
2. Ordinary meaning; special meaning
3. Subsequent agreement
4. Subsequent practice

Supplementary means of Treaty Interpretation

Records maybe had to supply them in the remains of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine
the meaning when the interpretation according to article 31:
a. Leaves the meaning ambiguous or obscure; or
b. Leads to a results which is manifestly absurd or unreasonable

Invalidity of Treaties
Article 46. Provisions of internal law regarding competence to conclude treaties
1. 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.

2. 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.

Municipal Law
A state cannot plead a breach of its constitutional provisions as to the making of
treaties as a valid excuse for condemning an agreement.

Cameroon v Nigeria
- Nigeria argues that Maroua Declaration was invalid under international law
because it was signed by the Nigerian Head of State but was never ratified.
- Nigeria's argument that its constitutional rules on treaty ratification had not
been complied with
- Nigeria further argues that Cameroon knew, or ought to have known, that
the Heald of State of Nigeria had no power legally to bind Nigeria without
consulting the Nigerian Government.
- ICJ:
o On the necessity of ratification: while in international practice a two-
step procedure consisting of signature and ratification is frequently
provided for in provisions regarding entry into force of a treaty, there
are also cases where a treaty enters into force immediately upon
signature. Both customary international law and the Vienna
Convention on the Law of Treaties leave it completely up to States
which procedure they want to follow
o The rules concerning the authority to sign treaties for a State are
constitutional rules of fundamental importance. However, a limitation
of a Head of State's capacity in this respect is not manifest in the sense
of Article 46, paragraph 2, unless at least properly publicized. This is
 particularly so because Heads of State belong to the group of persons
who, in accordance with Article 7, paragraph 2, of the Convention "ln
virtue of their functions and without having to produce full powers"
are considered as representing their State.
o In this regard the Court notes that there is no general legal obligation
for States to keep themselves informed of legislative and
constitutional developments in other States which are or may become
important for the international relations of these States.

GROUNDS FOR INVALIDITY

1. Error (Art. 48, VCLT)
a. A State may invoke an error in a treaty as invalidating its consent to
be bound by the treaty if the error relates to a fact or situation 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.
b. Error cannot be invoked if the State in question contributed by its
own conduct to the error or if the circumstances were such as to put
that State on notice of a possible error.
i. It is an establishment rule of law that the plea of error cannot be
allowed as an element vitiating consent if the party advancing it
contributed by its own conduct to the error, or if it could have
avoided it, or if the circumstances were such as to put the party
on notice of a possible error. (Cambodia v. Thailand)
2. Fraud (Art. 49, VCLT) and corruption (Art. 50, VCLT)
a. If a State has been induced to conclude a treaty by the fraudulent
conduct of another negotiating State, the State may invoke the fraud
as invalidating its consent to be bound by the treaty.
b. If the expression of a State’s consent to be bound by a treaty has been
procured through the corruption of its representative directly or
indirectly by another negotiating State, the State may invoke such
corruption as invalidating its consent to be bound by the treaty.
3. Coercion
a. Types:
i. Coercion of a Representative of a State (Art. 51)
 1. The expression of a State’s consent to be bound by a
treaty which has been procured by the coercion of its
representative through acts or threats directed against him
shall be without any legal effect.
ii. Coercion of a State by the Threat or Use of Force (Art. 52)
1. A treaty is void if its conclusion has been procured by the
threat or use of force in violation of the principles of
international law embodied in the Charter of the United
Nations.
4. Conflict with a peremptory norm
a. Art. 53 (already existing jus cogens norms): [a] treaty is void if, at the
time of its conclusion, it conflicts with a peremptory norm of general
international law.
b. Art. 64 (Emerging jus cogens): ‘[i]f a new peremptory norm of
general international law emerges, any existing treaty which is in
conflict with that norm becomes void and terminates’.
c. Consequences:
i. (Art. 53) The parties are to eliminate as far as possible the
consequences of any act performed in reliance on any provision
which conflicts with jus cogens and bring their mutual relations
into conformity with the peremptory norm.
ii. (Art. 64) the parties are released from any obligation further to
perform the treaty, but this does not affect any right, obligation
legal situation of the parties created through the execution of
the treaty prior to its termination, provided that the rights,
obligations, or situations may be maintained thereafter in
conformity with the new peremptory norm.

GROUNDS FOR TERMINATION OR SUSPENSION

1. Material breach
a. A material breach of a treaty, for the purposes of this article, consists
in:
i. a repudiation of the treaty not sanctioned by the present
Convention; or
 ii. the violation of a provision essential to the accomplishment of
the object or purpose of the treaty.

2. Supervening impossibility of performance

a. A party may invoke the impossibility of performing a treaty as a
ground for terminating or withdrawing from it 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.
3. Rebus sic stantibus (TERMINATION, WITHDRAWAL, SUSPENSION)
a. This is a customary international law which provides that where there
has been a fundamental change of circumstances since an agreement
was concluded, a party to that agreement may withdraw from or
terminate it.
b. (WHEN APPLICABLE) A fundamental change of circumstances
which has occurred with regard to those existing at the time of the
conclusion of a treaty, and which was not foreseen by the parties,
may not be invoked as a ground for terminating or withdrawing from
the treaty unless:
i. (a) the existence of those circumstances constituted an
essential basis of the consent of the parties to be bound by the
treaty; and
ii. (b) the effect of the change is radically to transform the
extent of obligations still to be performed under the treaty.
c. (WHEN NOT APPLICABLE) A fundamental change of
circumstances may not be invoked as a ground for terminating or
withdrawing from a treaty:
i. (a) if the treaty establishes a boundary; or
ii. (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.

Termination, withdrawal from a treaty. How made.

(Art. 54) 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
Suspension of a Treaty (Art. 57)
The operation of a treaty in regard to all the parties or to a particular party
may be suspended:
(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.

Art. 59. Termination or suspension of the operation of a treaty implied by

conclusion of a later treaty

1. A treaty shall be considered as terminated if all the parties to it conclude a later

treaty relating to the same subject matter and:

(a) it appears from the later treaty or is otherwise established that the parties
intended that the matter should be governed by that treaty; or

(b) the provisions of the later treaty are so far incompatible with those of the
earlier one that the two treaties are not capable of being applied at the same time.

2. The earlier treaty shall be considered as only suspended in operation if it

appears from the later treaty or is otherwise established that such was the intention
of the parties.

Hungary v. Slovakia
- Czechoslovakia violated the Treaty only when it diverted the waters of the
Danube into the bypass canal in October 1992. In constructing the works
which would lead to the putting into operation of Variant C, Czechoslovakia
did not act lawfully.
- the notification of termination by Hungary on 19 May 1992 was premature.
No breach of the Treaty by Czechoslovakia had yet taken place and
 consequently Hungary was not entitled to invoke any such breach of the
Treaty as a ground for terminating it when it did.
- During the proceedings, Hungary presented five arguments in support of the
lawfulness, and thus the effectiveness, of its notification of termination; one
of which was the occurrence of a fundamental change of circumstances -
political nature, diminishing economic viability, progress of environmental
knowledge, development of new norms of international law.
- The changed circumstances advanced by Hungary are, in the Court's view,
not of such a nature, either individually or collectively, that their effect
would radically transform the extent of the obligations still to be performed
in order to accomplish the Project.
- In the Court's view, the prevalent political conditions were thus not so
closely linked to the object and purpose of the Treaty that they constituted an
essential basis of the consent of the parties and, in changing, radically
altered the extent of the obligations still to be performed.
- The same holds good for the economic system in force at the time of the
conclusion of the 1977 Treaty.
- The Court does not consider that new developments in the state of
environmental knowledge and of environmental law can be said to have
been completely unforeseen. What is more, the formulation of Articles 15,
19 and 20, designed to accommodate change
- The negative and conditional wording of Article 62 of the Vienna
Convention on the Law of Treaties is a clear indication moreover that the
stability of treaty relations requires that the plea of fundamental change of
circumstances be applied only in exceptional cases.

The Actors in the International Legal System (Part 5)

(The Subjects of International Law)
- Are those to whom the international legal system gives the capacity to hold
rights, powers, and obligations.

1. States (primary actors)

2. International organizations
3. Individuals
4. Companies
5. Groups

Legal personality/subjectivity is relative. Not all participants in the international

legal system hold the same rights and obligations.

Subjects are not necessarily identical in their nature or in their extent of the rights,
and their nature depends upon the needs of the community. (ICJ Reparations Case)

Principal Features of International Legal Personality

1. The capacity to bring claims in respect of breaches of international law;
2. The capacity to conclude treaties; and
3. The enjoyment of privileges and immunities from the exercise of national
jurisdiction.

Only States have all these principal features. Others will only possess those rights
and obligations they have been given by the State through international agreement
in the form of treaties and conventions.

Non-state actors derive their legal personality from States it is the latter’s will on
what rights to give and what obligations to impose.

“It is not uncommon for the security council to make demands and actors other
than states and international organizations that it would require case-by-case
evaluated on to determine for home the security council intended to create legal
obligations.” (Advisory Opinion on the Unilateral Declaration of Independence in
Respect of Kosovo)

STATES
- The only actors that can create international law.
- Recognition
o While the state is the legal entity under international law, the
government is the representative of the state that is entitled to act on
the state’s behalf. The actual effects of lack of recognition of the state
 or of greater legal importance than those relating to lack of
recognition of a government.
o But the state must not be identified with its government; the state’s
international rights and obligations are not affected by a change of
government

STATE
Acknowledges that the entity fulfills
the criteria of statehood
Can be accorded without also
accepting that a particular regime is
the government of that state
A willingness to deal with the new
state as a member of the international
community
GOVERNMENT
Implies that the regime in question is in
effective control of a state
Necessarily has the consequence of
accepting the statehood of the entity
which the regime is governing

Recognition is not a criterion for statehood.

Nature of Recognition
Theories
 Declaratory
o The creation of states is first and foremost a matter of law in the
fulfillment of legal criteria
o The relevant criterion for acquiring statehood is essentially one
of effectiveness
o Recognition is immaterial to be considered as a state; as long as
territorial entity meets the requirements for statehood
o Recognition has no legal effect; the existence of a state or
government is a question of pure fact, and recognition is merely an
acknowledgment of the facts. If an entity satisfies the requirements of
the state objectively, it is a state with all international rights and
duties and other states are obliged to treat it as such.
 Constitutive
o Recognition by other states is a precondition for statehood
 o Highly problematic
 Relativism – one entity is recognized by one state but is not
recognized by others; inconsistency
 Quantity – how many states must recognize in order for an
entity to be considered as a state; is recognition of some states
more important than that of other states?
o A state or government does not exist for the purposes of international
law until it is recognized; thus, an entity is not a state and
international law until it has secured its general recognition as such
by other states.

Legal effects of Recognition

- Constitutive theory – a state or government does not exist for the purposes
of international law until it is recognized
o Ex. If the establishment of a state or government is a breach of
international law (illegal establishment), the state or government is
often regarded as having no legal existence until it is recognized
 Government overthrown by insurgency or rebellion, and a new
government was established by the people who led the
insurgency or rebellion; other states won’t recognize the new
government that illegally toppled the former government
 By constitutive theory, the newly formed government is not a
government at all because other states do not recognize it. The
illegality of the establishment of the government or state will be
cured only when recognition by the other states happens.
- Declaratory theory – recognition has no legal effects; the existence of a
state or government is a question of pure facts, and recognition is merely
an acknowledgment of the facts
o The illegal establishment of the new state or government is not a
breach of international law.
o No general rule of international law which forbids a group of people
from overthrowing the government of their state or to break away and
form a new state (secession).
Tinoco Doctrine (Recognition of a Government)
Tinoco’s regime was the government of Costa Rica because it was clearly in
effective control of Costa Rica, and the fact that it had not been recognized by
several states made no difference.
A distinction was made between recognition having evidential value and
little evidential value.
- With evidential value
o When it is uncertain whether a body claiming to be a state
fulfills the factual requirements of statehood, the evidential
value of recognition can have a decisive affect (constitutive)
- Little evidential value
o Where are the facts are clear that an entity claiming to be a state
fulfills all the criteria for statehood, the evidential value of
recognition or non-recognition is not strong enough to affect the
outcome of statehood. (declaratory)

Three Important Doctrines in Recognition of Government

1. Estrada Doctrine
a. Upon establishment of de facto governments in other countries,
Mexico did not support giving recognition because it is considered
degrading practice. By injuring the sovereignty of other states,
recognition puts them in a vulnerable position because their internal
affairs can be judged by other governments, which assume a critical
attitude when deciding about the legality and legitimacy of foreign
governments.
b. International law allows states to exercise great discretion when
granting or withholding recognition especially when a new
government comes into power in an existing state by violent and
illegal means of establishing a new government. Recognition is
accorded to the head of the state and so no problem of recognition
arises when the revolution does not affect the head of state or when
there is a constitutional change in the head of state election.
 c. Recognition is a political equipment in international relations. But it is
not all political; it is sometimes based on a belief that the new state is
not in effective control of the territory.
d. Non-recognition can and has often been used as a mark of disapproval
which was more often than not is misinterpreted.
e. In order to avoid this misinterpretation, some states have adopted the
policy of never recognizing a government.
f. Mexico’s foreign minister Don Genaro Estrada ordered that diplomats
should issue no declarations amounting to a grant of recognition.
g. States should not make positive or negative judgments about changes
in government of other nations, because it would imply breach of
sovereignty.
h. BOBBIE DOCTRINE

2. Tobar or Wilson Doctrine (Non-Recognition of Unconstitutional

Governments)
a. Recognition of government should only be granted if its
administration came to power in legitimate democratic means.
States do not generally recognize government that come into power as
a consequence of military coups or revolutions.
b. EXCEPTION: if the people, without coercion, affirmed and accepted
the new government even though it was established by military coups
or revolutions; states that follow this approach does accept a new
government when a coup is accompanied by an immediate vote
confirming the new government or a national referendum approving
the constitution.
c. Myanmar today: military has significantly taken over the government
of Myanmar. Pursuant to this doctrine, international community will
not recognize the government of Myanmar because it is established
illegitimately (through a coup de etat)
d. Wilsonian Doctrine (US)
3. Stimson Doctrine (US Secretary of State Henry Stimson)
a. The US will not recognize territorial changes produced by force or
aggression.
1933 Montevideo Convention on the Rights and Duties of States
The political existence of the State is independent of recognition by other
States.

CRITERIA FOR STATEHOOD (Art. 1, 1933 Montevideo Convention)

The State as a person of international law should possess the following
qualifications:
a. A permanent population;
b. A defined territory;
c. Government (Effective control);
d. Capacity to enter into relations with other States.

A. Permanent Population
- This criterion is connected with that of authority and constitutes the
physical basis for the existence of a state.
- It is not a requirement that the population has a certain size.
- A community of persons sufficient in number capable of maintaining
a permanent existence and perpetuating through natural reproduction
- Ex. Antarctica has no inhabitants, it is not a state under international
law.
- The fact that large numbers of nomads moving in and out of a
country, as in the case of Somalia, is in itself no bar to statehood as
long as it has a significant number of permanent inhabitants.
B. Defined territory
- The control of territory is the essence of a state
- Nothing precludes an entity with a tiny landmass from fulfilling the
requirement of a territory
- The entity’s boundaries need not be precisely demarcated and settled.
- Control over a consistent area of undisputed territory is essential.
- Ex. The lack of a definite territorial delineation of parts of Israel did
not prevent its acceptance as a state by majority of states, likewise the
 political uncertainties about the exact location of potential territorial
border between Israel and Palentine are not decisive to the issue of
Palestinian statehood. As long as there is control over a consistent
area of undisputed territory
- What matters is that a State consistently controls a sufficiently
identifiable core of territory
- State may be recognized as a legal person even though it is involved
in a dispute with its neighbors as to the precise demarcation of its
frontiers, so long as there is a consistent band of territory which is
undeniably controlled by the government of the alleged state.

Island of Palmas Case (Netherlands v. US)

- Dispute concerned the sovereignty over the island of Palmas which was
included in the territory of the Philippines which was in 1898 was ceded by
Spain to US by virtue of the Treaty of Paris.
- The same island of Palmas was claimed by the Netherlands as forming part
of its possession on the basis of having exercised sovereignty for more than
200 years.
- US: Hinges her title on cession (Treaty of Paris), as successor to the rights of
Spain over the Philippines and in the first place of discovery. (Since Spain
was the first to discover this island, then the same belongs to Spain)
- Netherlands: Spain’s discovery is not proved. Even if Spain had a title, such
has been lost. The Netherlands, through the East India Company, have
possessed and exercised rights of sovereignty out of convention entered into
with the natives and princes of the island, establishing the sovereignty of the
Netherlands over the territories of these princes, including the Palmas.
- PCA (Permanent Court Arbitration):
o Discovery alone is not sufficient to confer title on the discovering
state. It must have been coupled with another element which is
continuous and peaceful display of territorial sovereignty.
 A constituent element of territorial sovereignty is not only
based on the conditions of the formation of independent states
and their boundaries as well as on an international
jurisprudence and doctrine widely accepted.
 o “Territorial sovereignty involves the right to display the activities of
a state and the obligation to protect within the territory the rights of
other states as well as the rights with each state may claim for its
nationals in foreign territory.”
o Proved by The Netherlands (Ex. The flags waved by the natives are
Dutch flags; Dutch Government provide ayuda during calamities;
agreement between the Dutch and the natives; the affairs of the island
of Palmas were administered by the Dutch)
o The inchoate title that Spain had by virtue of its discovery of the
island of Palmas could not prevail over the continuous and peaceful
display of authority by another state
o The prevailing view of international law is that an inchoate title must
be completed within a reasonable period by the effective occupation
of the region claimed to be discovered.
 Effective control is the basis of territorial sovereignty
establishing the exclusive competence to take legal and factual
measures within that territory with the exclusion of other states.
- It was a private company (East India Company) that administered the affairs
of the island of Palmas. (being a private entity, EIC is not a state under
international law)
o PCA: The acts of EIC must be assimilated as acts of the Dutch
Government. It was a norm back then for the government to send
private entities to South Asia to colonize territories.
o The EIC was given the public powers for acquisition and
administration of colonies. They were acting under the instruction of
the Dutch government. It was an extension of the personality of the
state of he Netherlands
- The Netherlands have the right over the island; Spain could not have
successfully ceded the same to the US via Treaty of Paris pursuant to the
doctrine of nemo dat quod non habet.

C. Government

INTERNAL (CONTROL) EXTERNAL

The existence of a government implies
the capacity to establish and maintain a
legal order in the sense of
constitutional autonomy.
- Exercises all the inherent powers
of a State
It means the ability to act
autonomously on the international level
without being legally dependent on
other states within the international
legal order.

The mere existence of a government in itself does not suffice if it does not
have effective control.

Advisory Opinion on the Aaland Islands, 1920.

Finland would not fulfill the conditions for statehood until a stable
political organization had been created and until the public authorities had
become strong enough to assert themselves through the territories of the State
without the assistance of foreign troops.
Effectiveness of a Government
It seems that there is a need to distinguish between, on the one hand, those
situations where the entity attempts to secede from within an existing state
structure, in which case secession will often be contested, and, on the other,
instances where the claim to statehood flows from a grant of independence to the
territory by a former sovereign.
Where the criterion of statehood is applied strictly in the former situation
(secession), the standard appears to be less stringent in the second one.
There is no rule in international law which forbids secession from existing
states nor is there any rule which forbids the mother state from crushing the
secessionary movement. Whatever the outcome of the struggle, it will be accepted
as legal in the eyes of international law, and so long as the Mother State is still
struggling to crush the secessionary movement, it cannot be said that secessionary
authorities are strong enough to maintain control over their territory with any
certainty of permanence.
Secession is innate to the right of the peoples to self-determination.
IMPORTANT TO NOTE, the government in question does not necessarily
have to be in a position where it can’t exercise its authority throughout the entire
territory.
Principle of State Continuity
The requirement of effective control over territory is not always strictly
applied; a state does not cease to exist when it is temporarily deprived of an
effective government as a result of Civil War or similar upheavals.

De jure government – the legal or legitimate government that is recognized by

other states; established through constitutional means

De facto government – in actual possession of authority and control of the state but
is not necessarily that it has been established constitutionally or legally.

Are the acts of a de facto government valid?

It is a legal truism in political and international law that all acts and
proceedings of the legislative, executive, and judicial departments of a de
facto government are good and valid. (Co Kim Cham v Tan Keh)
It cannot be nullified and cannot be rendered void even though there are
other occupation made by other sovereign. The government which was temporarily
established by the occupying sovereign is not legal and binding (?).

Kinds of de facto government:

1. In its proper legal sense
 That government that gets possession and control of, or usurps, by
force or by the voice of the majority, the rightful legal government
and maintains itself against the will of the latter
2. Government of paramount force
 Established and maintained by military forces who invade and
occupy a territory of the enemy in the course of war
3. Insurrectional government
 Established as an independent government by the inhabitants of a
country who rise in insurrection against the parent state.

Right and duty of a belligerent occupant (Co Cham v. Tan Keh)

The belligerent occupant has the right and is burdened with the duty to
insure public order and safety during his military occupation, he possesses all the
powers of the de facto government, and he can spend the old laws and promulgate
new ones and make changes in the old as he may see fit, but he is enjoined to
respect, unless absolutely prevented by the circumstances prevailing in the
occupied territory, the municipal laws in force which enforce public order and
regulate the social and commercial life of the country.
International law obligates the belligerent occupant to insure public order
and safety even if it successfully occupies another state by force.

What about laws of political nature (i.e freedom of speech, right to vote, freedom
of the press, fundamental rights), EFFECT OF BELLIGERENT OCCUPANCY
On the other hand, laws of a political nature or affecting political relations,
such as, among others, the right of assembly, the right to bear arms, the freedom of
the press, and the right to travel freely in the territory occupied, are considered as
suspended or in abeyance during the military occupation. Although the local and
civil administration of justice is suspended as a matter of course as soon as a
country is militarily occupied, it is not usual for the invader to take the whole
administration into his own hands. In practice, the local ordinary tribunals are
authorized to continue administering justice; and the judges and other judicial
officers are kept in their posts if they accept the authority of the belligerent
occupant or are required to continue in their positions under the supervision of the
military or civil authorities appointed by the Commander in Chief of the occupant.
These principles and practice have the sanction of all publicists who have
considered the subject, and have been asserted by the Supreme Court and applied
by the Presidents of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on
International Law: "The right of one belligerent to occupy and govern the territory
of the enemy while in its military possession, is one of the incidents of war, and
flows directly from the right to conquer. We, therefore, do not look to the
Constitution or political institutions of the conqueror, for authority to establish a
government for the territory of the enemy in his possession, during its military
occupation, nor for the rules by which the powers of such government are
regulated and limited. Such authority and such rules are derived directly from the
laws of war, as established by the usage of the world, and confirmed by the
writings of publicists and decisions of courts—in fine, from the law of nations * *.
*. The municipal laws of a conquered territory, or the laws which regulate
private rights, continue in force during military occupation, except so far as
they are suspended or changed by the acts of the conqueror * *. *. He,
nevertheless, has all the powers of a de facto government, and can at his pleasure
either change the existing laws or make new ones."

In Co Cham v Tan Keh, two kinds of government that were established: (1)
Philippine Executive Commission and (2) Republic of the Philippines.
It is evident that the Philippine Executive Commission, which was
organized by Order No. 1, issued on January 23, 1942, by the Commander of the
Japanese forces, was a civil government established by the military forces of
occupation and therefore a de facto government of the second kind.
The government established over an enemy's territory during the military
occupation may exercise all the powers given by the laws of war to the conqueror
over the conquered, and is subject to all restrictions which that code imposes. It is
of little consequence whether such government be called a military or civil
government. Its character is the same and the source of its authority the same. In
either case it is a government imposed by the laws of war, and so far as it concerns
the inhabitants of such territory or the rest of the world, those laws alone determine
the legality or illegality of its acts."
The fact that the Philippine Executive Commission was a civil and not a
military government and was run by Filipinos and not by Japanese nationals, is of
no consequence.
The so-called Republic of the Philippines, apparently established and
organized as a sovereign state independent from any other government by the
Filipino people, was, in truth and reality, a government established by the
belligerent occupant or the Japanese forces of occupation. It was of the same
character as the Philippine Executive Commission, and the ultimate source of its
authority was the same—the Japanese military authority and government.
For it is a well-established doctrine in international law, recognized in
Article 45 of the Hague Conventions of 1907 (which prohibits compulsion of
the population of the occupied territory to swear allegiance to the hostile
power), that belligerent occupation, being essentially provisional, does not serve
to transfer sovereignty over the territory controlled although the de
jure government is during the period of occupancy deprived of the power to
exercise its rights as such.
 The formation of the Republic of the Philippines was a scheme contrived by
Japan to delude the Filipino people into believing in the apparent magnanimity of
the Japanese gesture of transferring or turning over the rights of government into
the hands of Filipinos. It was established under the mistaken belief that, by doing
so, Japan would secure the cooperation or at least the neutrality of the Filipino
people in her war against the United States and other allied nations.

Q: Given that it was the people’s free will that established the RP, could that
government be considered as a de facto government still (or de jure na hiya)?
A: Still a de facto government. Even if the Republic of the Philippines had been
established by the free will of the Filipino people who, taking advantage of the
withdrawal of the American forces from the Islands, and the occupation thereof by
the Japanese forces of invasion, had organized an independent government under
that name with the support and backing of Japan, such government would have
been considered as one established by the Filipinos in insurrection or rebellion
against the parent state or the United States. (DE FACTO GOVERNMENT OF
THE THIRD KIND)

According to that well-known principle in international law, the fact that a

territory which has been occupied by an enemy comes again into the power of its
legitimate government or sovereignty, "does not, except in a very few cases, wipe
out the effects of acts done by an invader, which for one reason or another it is
within his competence to do.

PRINCIPLE OF CONTINUITY OF LAW

Law once established continues until changed by some competent legislative
power. It is not changed merely by change of sovereignty.

“There can be no break or interregnum in law. From the time the law comes into
existence with the first-felt corporateness of a primitive people it must last until the
final disappearance of human society. Once created, it persists until a change takes
place, and when changed it continues in such changed condition until the next
change, and so forever. Conquest or colonization is impotent to bring law to an
end; in spite of change of constitution, the law continues unchanged until the new
sovereign by legislative act creates a change."
FORM of a government
International law is in different words the nature of internal political
structure of states. It is in different to the form of government in question.

D. Capacity to enter into relations with other states

- In short, to be a state an entity must have the ability to act without
legal interference from other states. Importantly, commitments and
obligations undertaken or in post under international law or not an
impediment to statehood.
- As long as restrictions do not place the state under the legal authority
of another state, the former remains an independent state however
extensive and burdens of those obligations may be. (Austro-German
Customs Union Case)
- It is the lack of independence that prevent an otherwise state-like
entity from fulfilling the conditions of statehood.