PUBLIC INTERNATIONAL LAW – Prelim Reviewer Private international law is really a domestic law which deals with cases
where foreign law intrudes in the domestic sphere where there are questions of
CHAPTER I
What is International Law?
It is a body of rules and principles of action which are binding upon civilized
states in their relation to one another.
The Restatement of Foreign Relations Law of the United States defines it as
the law which deals with the "conduct of states and of international
organizations and with their relations inter se, as well as with some of their
relations with persons, whether natural or juridical."
Is International Law, a law?
Yes, because it binds States and all men. Man, in so far as he is a reasonable
being, is constrained to believe that order and not chaos is the governing
principle of the world in which he lives. Although the final enforcer is power,
fundamentally, there is general respect for law because of the possible
consequences of defiance either to oneself or to the larger society.
Theoretical Bases About International Law (What Makes It A Law)
1. Command Theory - Law consists of command originating from a
sovereign and backed up by threats of sanction if disobeyed. (This has been
generally discredited because the reality is that nations see international law
not as commands, but as principles of free and orderly interaction.)
2. Consensual Theory – International law derives its binding force from
consent of the states.
3. Natural Law Theory – Law is derived by reason from the nature of man.
Public International Law vs. Private International Law
Public international law governs relationships between and among states
and their relations with international organizations and individuals;
applicability of foreign law.
History of International Law/ Significant Milestones
1. The Peace of Westphalia (1618-1648) – Ended the Thirty Years War and
established a treaty based frameworks for peace cooperation. Pacta sunt
servanda arose during this time.
2. Congress of Vienna (1815) – Ended the Napoleonic Wars and created
multilateral cooperation and economic cooperation.
3. Covenant of the League of Nations (1920) – Included Treaty of
Versailles which ended WW I. Created the Permanent Court of International
Justice and United Nations.
3 Major Groupings of the United Nations
1. Western States;
2. Socialist States;
3. Developing Countries.
CHAPTER II - SOURCES OF INTERNATIONAL LAW
Classification:
1. Formal Sources – Refer to various processes by which rules come into
existence, such as legislation, treaties and judicial decisions.
2. Material Sources – Not concerned with how rules come into existence but
rather the substance and content of the obligation. They identify what
obligations are. Ex: UN resolutions, traties, writings of jurists, judicial
decisions.
Doctrine of Sources - Lays down conditions for verifying and ascertaining
the existence of legal principles.
Briefly Stated, the "Sources" Are:
1. Custom treaties and other international agreements;
2. Generally recognized principles of law;
3. Judicial decisions; and
4. Teachings of highly qualified and recognized publicists.
Basis:
Article 38 (1) of the Statute of the International Court of
Justice
(This is the most widely accepted statement of the "sources" of
international law)
1. International Conventions – Whether general or particular,
establishing rules expressly recognized by contesting states;
2. International Custom – As evidence of a general practice
accepted as law;
3. General Principles of Law - Recognized by civilized nations.
4. Judicial decisions and teachings of the most highly
qualified publicists of the various nations - as subsidiary means
for determination of rules of law.
Restatement of Foreign Relations Law of the US
1. Customary law;
2. International law;
3. Customary international law – results from a general and
consistent practice of states from a sense of legal obligation.
4. International agreements – created law for states parties thereto
and may lead to creation of customary international law.
5. General principles common to the major legal system – as
supplementary rules.
CUSTOMARY LAW – A general and consistent practice of states
followed by them from a sense of legal obligation.
How to determine the existence of custom?
The initial factor to determine the existence of custom is the actual
behavior of states (usus). This includes several elements:
1. Duration
2. Consistency (Asylum Case)
3, Generality of the practice of states
North Sea Continental Shelf Cases – Short duration by itself will
not exclude the possiblity of a practice maturing into custom, provided
the pracice should have been both extensive and virtually uniform and
have occured in such a way as to show a general recognition that a legal
obligation is involved.
OPINIO JURIS – The belief that a certain form of behavior is
obligatory. This is what makes practice an internationl law.
Nicaragua vs United States – For a customary rule to be formed,
the States taking such action must have behaved so that their conduct
is "evidence of a belief that the practice is rendered obligatory by the
existence of a rule of law requiring it."
It is possible for customary law to develop which will bind only several,
or even only two states, but the party claiming it must prove that it is
also binding on the other.
Would dissenting states be bound by custom?
Yes, unless they had consistently objected to it while the custom was
merely in the process of formation, as in the case of Anglo-
Norwegian Fisheries.
Fisheries Jurisdiction Case – It is possible that after a practice has
been accepted as law, contrary practice might arise, which can cast
doubt on the alleged law. If contrary practice should gain general
acceptance, it might instead become the law.
INSTANT CUSTOM- Comes about as a spontaneous activity of a Publicists – Institutions which write on Internationl Law. (Ex:
great number of states supporting a specific line of action. (Ex: International Law Commission, International Law Association and the
Coalition of forces supporting the US against Osama Bin Laden.) Hague Academy of International Law annual publication.)

MARTENS CLAUSE EQUITY

Even without practice, there can emerge a principle of law based on Under Art. 38 of the Statute, the Court has some freedom to consider
laws of humanity and the dictates of public conscience. In other words, principles of equity as part of the international law.
one need not wait for thousands of civilians to be killed before a ban
becomes effective. Kinds of Equity

Basis: A clause in the Hague Peace Convention, inserted by Fyodor 1. Intra legem (within the law) – law is adapted to the facts of the
Martens. case;
2. Praeter legam (beyond the law) – It is used to fill gaps within
TREATIES the law;

Treaties determine the rights and duties of states, their binding force 3. Contra legem (against the law) – refusal to apply the law which
comes from voluntary decision of sovereign states to obligate is seen as unjust.
themselves to a mode of behavior. It can be multilateral or bilateral.
Other Supplementary Evidence:
What happens when treaty and custom contradict
eachother? 1. UN Resolutions
2. Soft Law – Non-treaty agreements
If a treaty comes later than a particular custom, as between the parties
to a treaty, the treaty should prevail. However, if a later treaty is
contrary to customary rule that has the status of jus cogens, custom CHAPTER III – THE LAW OF TREATIES
will prevail. However, attempts should be made to keep the treaty alive
by efforts at reconciling treaty with the developing custom. What is the definition of treaties under the Vienna Convention?

A treaty is an international agreement concluded between States in written

JUDICIAL DECISIONS form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
Judicial decisions shall apply as subsidiary means to determine the designation.
rules of law. However, these do not constitute stare decisis. However,
decisions of the ICJ ar enot only regarded as persuasive in
international law circles, they have also contributed to the formulation
of principles that have become international law.

TEACHINGS OF HIGHLY QUALIFIED PUBLICISTS


Qatar vs. Bahrain (ICJ 1994) – The exchanges of notes between the two
heads of states was considered an international agreement. In this case, the
Minutes of the meeting do not merely give an account of discussions but
reaffirmed obligations previously entered into.
APPLICATION OF TREATIES
Fundamental Rules
1. Pacta sunt servanda or "every treaty in force is binding upon the parties to it
and must be performed by them in good faith." (Art. 26 of the Convention)

Australia vs. France, New Zealand vs. France – Even a unilateral
declaration concerning legal or factual situations may create legal obligations.
Requisites for a Binding Unilateral Declaration:
1. The commitment was very specific;
2. There was clear intent to be bound
2. A party may not invoke the provisions of its internal law as justification for
its failure to perform a treaty. (Art. 46)
3. As to territorial scope of its ability - unless a different intention appears
from the treaty or is otherwise established, a treaty is binding upon each party
in respect of its entire territory.
INTERPRETATION OF TREATIES

FUNCTION OF TREATIES 1. Objective approach – a treaty shall be interpreted in good fiath in

accordance with the ordinary meaning of the words.
1. Sources of international law;
2. Serve as charter of international organizations; 2. Teleologial approach – Interpretation should be according to the telos or
3. Used to transfer territory; purpose of the treaty.
4. Regulate commercial relations;
5. Settle dispute; 3. Subjective approach – It honors special meanings given by the parties.
6. Protect human rights;
7. Guarantee investments.
Air France vs. Saks – Liability under Art 17 of the Warsaw Convention
CLASSIFICATIONS (As to relevance as international law sources) arises only if a passenger's injury is caused by an unexpected or unusal event or
happening that is external to the passenger, and not where the injury results
1. Multilateral treaties open to all sates of the world– creates norms from the passenger's own internal reaction. The drafters of the Convention
which are the basis for a general rule of law. understood the word "accident" to mean something different than "occurence."
2. Treaties that create a collaborative mechanism
3. Bilateral treaties – in the nature of contractual agreements which create GROUNDS FOR INVALIDATION OF TREATIES
shared expectations such as trade agreements of various forms.
1. Error of fact;
2. Fraud;
How are treaties made? 3. Corruption or durress;
4. Violation of jus cogens.
1. Through negotiation;
2. Authentication of text; JUS COGENS
3. Consent to be bound;
4. Accession; Also known as peremptory norm of general international law; It is a norm
5. Reservations; accepted and recognized by the international community of States as a norm
from which no derogation is permitted and can be modified only by a
subsequent norm of general international law having the same character.

RULES TO BE CONSIDERED TO BE JUS COGENS
1. A state can lose the right to assert invalidity of a treaty.
2. A state, with limited exception, may not plead its municipal law as a ground
for invalidating a treaty that has been entered.
COMPETENCE TO CONCLUDE TREATIES
Art. 46. Provisions of internal law regarding competence to
conclude treaties:
1. State may invoke that its consent to be bound by 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.
AMENDMENT OF MULTILATERAL TREATIES
Art. 40. Amendment of multilateral treaties
1. Any proposal to amend must be notified to all the contracting States,
each of one shall have the right to take party in:
a. The decision as to the action to be taken in regard such
proposal;
b. Negotiation and conclusion for the amendment.
2. Every State entitled to become a party to the treaty shall also be
entitled to become a party to the treaty as amended.
3. Amending agreement does not bind any State already a party, which
does not become a party to the amending agreement.
4. Any state which becomes a party to the treaty after the entry into
force of the amending agreement:
a. shall be considered a party to the treaty as amended
b. considered a party to the unamended treaty in relation to any
party to a treaty not bound by the amending agreement.
MODIFICATION OF MULTILATERAL TREATIES
1. Two or more parties to a multilateral treaty may conclude an
agreement to modify the treaty alone:
a. if the possibility for modification is provided by the treaty; or
b. the modification is not prohibited by the treaty;
c. does not affect the parties' rights
d. does not relate to a provision, the derogation from which is
incompatible wit he object and purpose of the treaty.
2. The parties shall notify the other parties of their intention to
conclude the agreement and of the modification to the treaty for which
it provides.
TERMINATION OF TREATIES
1. Material breach
2. Impossibility of performance
3. Supervening impossibility of performance; and
4. Procedure for the Termination of Treaties.
CHAPTER IV – INTERNATIONAL LAW AND MUNICIPAL LAW
Under the dualist or pluralist theory, international law and municipal law
are essentially different from each other.
Municipal Law vs. International Law
Municipal law is a product of local custom or of legislation whereas the
sources of international law are treaties and custom grown among states.
Municipal law regulates relations between individual persons under the state
whereas international law regulates relations between states.
Municipal law is a law of the sovereign over individuals whereas
international law is a law between sovereign states.
When there is a conflict between international law and domestic
law, which is to prevail?
Under the Dualist Theory, when international and domestic law conflict, it is
the domestic or municipal law that must prevail.
Opposite this, the Monistic Theory or Monism, where it is believed that
international law and domestic law belong only to one system of law.
There are 2 Monist Theories, one which holds that municipal law
subsumes and is superior to international law. While the second theory
supported by Kelsen, holds that international law is superior.
How does international law become part of domestic law for
Dualists?
Through the doctrine of transformation and doctrine of incorporation.
DOCTRINE OF TRANSFORMATION
As held in Exchange of Greek and Turkish Population Case, this is a principle
which holds that a state which has contracted a valid international obligation is
bound to make in its legislation such modifications as may be necessary to
ensure the fulfillment of the obligations undertaken.
DOCTRINE OF INCORPORATION
In the alw of nations, whenever any question arises which is properly the object
of its jurisdiction, is here adopted in its full extent by the common law, and it is
held to be part of the law of the land.
What does Philippine law follow?
The Constitution manifests its adherence to the dualist theory and at the same
time, adopts the incorporation theory.
International law and treaties become part of the law of the land when
concurred by the Senate in accordance with Art. VII, Sec. 21 of the
Constitution.
International law, therefore, can be used by Philippiene courts to settle
domestic disputes in much the same way they would use the Civil Code and
Penal Code.
Examples of cases where International Law was used to settle
controversies in the Philippines
Mejoff vs. Director of Prisons – A Russian descent who ha dbeen detained
pending execution of the order of deportation invoked the Universal
Declaration of Human Rights.
Kuroda vs Jalandoni – Here, the court held that the Philippines is not
confined to the recognition of principles as contained in treaties which it
entered into. Even though it was not a signatory of the Hague Convention, the
court considered jurisdiction over war crimes in the Military Courts, part of
customary law.
THE RULE ON CONFLICT BETWEEN INTERNATIONAL LAW AND
DOMESTIC LAW
The rule will depend on whether the case goes to a domestic court or an
international court.
1. The International Rule – Pacta sunt servanda; "Every State has the duty
to carry out in good faith its obligations arising from treaties and other sources
of international law, and it may not invoke provisions in its constitutions or its
laws as an excuse for failure to perform this duty."
EXN: If it is a constitutional violations that is manifest and concerns a
rule of its internal law of fundamental importance.
2. The Municipal Rule – Domestic courts are bound to apply the local law.
Courts are very rarely confronted with this problem, because courts are
generally able to give to domestic law a construction which does not conflict
with international law.
Edye vs. Robertson – In case of conflict, the latter law will prevail.
CHAPTER V – SUBJECTS OF INTERNATIONAL LAW: STATES
Subjects of international law - are entities endowed with rights and
obligations in the international order and possessing the capacity to take
certain kinds of action on the international plane.
Objects of international law – are those who directly have rights under or
are beneficiaries of international law through subjects of international law.
When does Statehood arise (Characteristics?
1. A permanent population;
2. Defined territory;
3. Government;
4. Capacity to enter into relations with other States.
STATE – a community of persons more or less numerous, permanently
occupying a definite portion of territory, independent of external control, and
possessing an organized government to which the great body of inhabitants
render habitual obedience.
4 ELEMENTS OF STATEHOOD
1. People or Population – a community of persons sufficient in number and
capable of maintaining the permanent existence of the community and held
together by a common bond of law.
2. Territory – a definite territory over which an entity exercises permanent
sovereignty.
3. Government – that institution or aggregate of institutions by which an
independent society makes and carries out those rules of action which are
necessary to enable men to live in a social state.
4. Sovereignty – independence from outside control. The capacity to enter
into relations with other States.
5. Self-determination – they are free to determine their political status,
pursue their economic, social and cultural development.
RECOGNITION OF STATES
Recognition – means the act of acknowledging the capacity of an entity to
exercise all the rights belonging to statehood.
Can an entity claim to be a state before it is recognized by other
states?
1. Declaratory Theory – recognition is merely declaratory of the existence of
the state and its being a state depends upon its possession of the required
elements and not upon recognition.
2. Constitutive Theory - recognition constitutes a state, that is, it is what
makes a state a state and confers legal personality on the entity.
SUCCESSION OF STATES
Succession to territory
1. Rights and duties of the predecessor state with respect to that territory
terminate and are assumed by the successor state.
Succession as to state property
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FUNDAMENTAL RIGHTS OF STATES - IEP
1. Independence – capacity of a state to provide for its own well-being and
development free from the domination of other states, providing it does not
impair or violate their legitimate rights.
2. Equality – Equality of legal rights irrespective of the size or power of the
state.
3. Peaceful co-existence – mutual respect, mutual non-aggression, non
interference and principle of equality.
SOME INCOMPLETE SUBJECTS - PFMT

1. Protectorates - states which have control over their internal affairs but
whose external affairs are controlled by another state.
2. Federal state – union of previously autonomous entities. Various
arrangements are possible.

3. Mandated and Trust Territories – Territories placed by the League of

Nations under one or other of the victorious allies of WWI. Carolines,
Marianas, and Marshall Islands.

4. Taiwan – Non-state territory which de jure is part of China.

5. The Sovereign Order of Malta

6. The Holy See and Vatican City