Sie sind auf Seite 1von 50

Public International Law Midterm Notes 201

3
As usual, we will start with the definition of PIL. Any volunteer? Who has any idea of what PIL is?
The beauty of PIL is that a lot of concepts are not defined in a box type definition. Authors, publicists and
jurists also give their own definition of what PIL is.
The traditional definition is that PIL is the law that governs the relations between states. This definition is
not wrong, only that it is the traditional way of looking at PIL. The view then was to look at PIL as a body
of rules that governs relationship between states. The definition is specific as to the actor in that particular
legal system. Because when we talk about legal system, then we talk about actors in the legal system.
So, who are the actors in the legal system? In the definition, it seems that the states are the actors in that
kind of legal system. And that legal system that we are talking about is PIL. That is correct but there are
modifications of the definition because of the development in PIL.
Why is this traditional? Because maybe, the modern definition is no longer focused on the states as
actors. Maybe there are other actors in public international law. Other than the states.
What about international organizations? Dont you think PIL also deals with international organizations?
For instance: how states deal with international organizations and vice versa? For example, the United
Nations, the World Trade Organization. If these organizations are part of the study of international law,
then it must be an actor in PIL.
What about multinational companies, do they play a role in PIL?
What about individuals? Is PIL a kind of a legal system that deals with individuals? Yes or No?
If your answer is YES, then in what sense are individuals considered actors in PIL?
These are your guide questions.
Most authors however agree on what they consider as a more appropriate definition of PIL. Im not saying
it is the correct but at least more appropriate, comprehensive definition of PIL. Its quite ironic because
this definition is taken from a document of the Dept. of Foreign Affairs of the United Statesa highly
controversial actor of the international legal system.
So this is the definition given in the Restatement of the law by the American Institute of Foreign Relations
law of the United States Section 101. It is in your outline. IF you want to read the whole restatement, then
by all means go ahead.
[Now refer to the definition above: that not typed in italized format]
The Restatement is a document that some sort of declaring the understanding of the US government
about PIL. Something we do not have. But this is accepted by many authors as the comprehensive and
more appropriate definition.
As can be gleaned from the definition, the actors of PIL include the following:
States
International Organizations
Persons (Natural and Juridical)
Now, since we have the traditional definition of PIL, we can therefore say that it started with a type of legal
system that deals with states only. And so, dealing with international organizations and persons is more of
a modern approach to the study of PIL.
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 1

Public International Law Midterm Notes 201


3
Now, go over this problem class:
Problem:
The Chief UN Truce Negotiator Count Bernadotte, a Swedish national, was killed on September
17, 1948 in Jerusalem. The assassins were allegedly a gang of terrorists. Israel was not a member of the
UN at the time of the incident.
Issue:
1. WON the UN had legal personality to bring a claim with the view to obtaining reparations in
respect to the damage caused to itself, to the victim or persons entitled through the victim.
Discussion:
[Atty Largo reads the problem verbatim] Then proceeds to discuss:
Do you know the idea of Reparation for Damages?
This is a civil law concept but it is also a concept in PIL. You talk about Reparation for Damages when, for
example, a citizen of a state suffers damage in a foreign state. An American for example gets killed in
foreign soil. So we will study about the possible responsibility of the Philippines for example, and on the
part of the US, it may bring a claim for and in behalf of the American victim. The process is called
reparation for damages. US will ask for the payment of compensation for the injury inflicted on its citizen.
But this is not a situation where the compensation is given to the victim or the heirs of the victim. This is
considered as an injury suffered by the state. So it just depends on whether there is a domestic law in the
US for example that allows the payment of compensation after the US successfully recovers from the
Philippines by way of compensation. So we call it Reparation for Damages.
So why is that relevant to this problem? This is relevant because in this problem, it is not a state that acts
for reparations, but only or merely an international organization. And so we ask the question: Can the UN
pursue a claim applying international law for and in behalf of its officer or employee?
If we say YES, then we are saying that the United Nations possesses what we call International Legal
Personality. That is the idea. If you are able to insist on a claim through the process of Reparation for
Damages, then you possess an International Legal Personality. That is akin to the proper party or locus
standi in constitutional law, or real-party-in-interest in civil law.
So, does the UN have personality to ask for Reparation for Damages for and in behalf of its officer or
employee? What is the answer? Sige daw, try lang class.
Sir, naa na man to sa definition sir: Dili lang kay states but also international organizations.
Correct!
But what do you think is the best justification for the answer? Why say that the UN and international orgs
have international legal personality when it is not a state?
This is the first case that you will have to study. The is the Reparation for Injuries Case ICJ Advisory
Opinion in 1949.
So, we will try to answer that as we proceed with our discussion.
But the other concern, if you want to understand the concept of PIL, is to study the Subjects of PIL. And
how do we distinguish Subject from Objects of International Law?
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 2

Public International Law Midterm Notes 201


3
Authorities in PIL agree that states are the Primary Subjects of international law. And then we have some
subjects that we have to treat as secondary.
So in the MCQ, if the question goes: Which of the following is not a subject of international law?
a. States
b. UN
c. Individual
d. None of the above
So you of course know the answer.
But the next question is what makes it Primary or Secondary?
The idea class is, if you are the main actor in international law and therefore you are the main subject of
international law, then you can go directly to an International Tribunal like the ICJ and seek relief. You can
go there directly because you have the personality as a State, assuming you are a member of the UN.
Now, whether or not the jurisdiction is compulsory is another thing. You will learn later on that the
jurisdiction of the ICJ is not compulsory. There are instances that it is compulsory but generally, it is based
on consent. This is why it is really hard to enforce international law because of lack of a centralized
legislative department. There is no legislative department that creates Public International Law. We will
study later on how PIL is formed and enforced.
So if you can go directly to an international tribunal and seek for relief, then we can say that you are a
Primary Subject of International law, because the definition says capable of possessing international
rights and duties, including the right to bring international claims.
Now, if you are an individual, you suffered injuries at the hands of authorities in the Philippines and you
are an American, what is the proper way of repairing the damage or the injuries caused you? I mentioned
Reparation for Damages. So, what does it take to repair a damage caused to a foreigner? Can an
individual go directly to the ICJ and sue the Philippines and claim that Philippines have committed an
Internationally Wrongful conduct attributable to the Philippines?
Did you remember the case of the Comfort Women? Filipino women had been abused by Japanese
Military officers during WW2. So what did the victims do? Did they go to the ICJ and ask for
compensation? They coursed their claim thru the Philippine government because only the Philippine state
can represent them in an international tribunal. The Philippines is a state and therefore it is that entity that
possesses international legal personality. You cannot go directly to the ICJ. You have to ask for
compensation. You have to course thru the Philippine government your claim. It is the Philippine
government that will bring your claim to the ICJ. Except that in this case, the Philippine government
refused because at that time, rape was not considered as Erga Omnes or Jus cogens norm. Jus Cogens
is of course a peremptory norm that no state is allowed to violate. It is a non-derogable norm at that
time. Maybe now, had the incidence happened at present, maybe the Philippine government will be
compelled to bring the claim before the International tribunal.
So individuals are treated as secondary because they cannot pursue or bring international claims directly
but only thru the instrumentality of the state. So states are the primary subjects. Individuals can be
considered as actually objects of international law in that situation. So the individual is not a subject but
merely an object from that perspective.
But in some instances, even individuals can bring international claims directly. But only in specialized
circumstances. You think of National Liberation Movements for example. Have you heard of the right to
self-determination? In fact, the right to self-determination has already ripened into a customary norm. It is
already part of customary international law. Have you ever heard of what happened to Cosovo in the
former Yugoslavia?
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 3

Public International Law Midterm Notes 201


3
Groups of people, who share the same history, the same origin, culture may find themselves the minority
in a particular community. It may happen that the particular community, lets say a state tends to disregard
the unique culture. As a result this particular state or government will only pass one set of laws, one set
of legal system, one set of policy and disregarding the unique culture of this minority groups. It can
happen. Now, if that happens, after attempts for example by this group, to be recognized by the majority,
it may happen that in PIL, they want to secede. And this is the usual problem in state or territorial
secession. They cannot continue to live along with the majority with just one set of laws because they
have their own culture and practices, traditions. They want that the national government will also address
that. So that failure to do so would be a violation of their right to self-determination.
That is the idea of the right to self determination. They want to have their own laws, system, etc.
That is why in the Philippines, we address that. We have our civil law for the vast majority Christian
citizens. For our Muslim brothers and sisters, we also have different sets of legal system. We have in fact
different procedures in Sharia courts. And they have their own personal laws. If the national government
is unable to address that, then it may be a case of violating their right to self determination.
Are you following? Ok
But that is not my point because my point is: Suppose attempts to secede fail because any state also has
the right in international law to territorial integrity. That is also a right of any state. So this is one situation
that will require a lot of balancing. You have one group trying to separate because they want to exercise
their right in customary international law to self determination on one hand. And on the other hand, you
also have the state which has the right to territorial integrity.
There is one case that I will ask you to read. This is about Quebec trying to secede from Canada. You try
read how the Supreme Court of Canada decided on the right to secede by Quebec.
So assume for example that this conflict between the right of the state to its territorial integrity and the
right of the minority to self determination escalates into an armed conflict. Mind you, in public
international law, specifically in international humanitarian law, there is also a specific definition of an
armed conflict. There are standards and we will study that in IHL. So let us assume that there is already
an armed conflict. There is intensity in the fighting and there is uncertainty of winning. So we have one
group trying to insist that they separate from the state.
So with the existence of an armed conflict, what happens after?
There are at least three kinds of legal systems in PIL. You have the Laws of Peace, meaning when there
is no war. We have of course the opposite, the Laws of War, meaning there is an armed conflict. And the
third, the Laws of Neutrality. States not participating in the armed conflict, they are also governed by a
different system.
So when there is armed conflict, there is a new set of Law that operates between the participants in the
armed conflict.
So what are we doing here?
We are trying to pick a branch of PIL and make it applicable to individualsthose armed groups! They are
not states. They are not even organizations. They are just individuals. But why ask them to observe the
laws of war?

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 4

Public International Law Midterm Notes 201


3
We have rules in the conduct of war. For example, when you capture a combatants, they are to be treated
as Prisoners of War. There are rules under the Geneva Convention on the treatment of Prisoners of War.
Civilians also enjoy rights during an armed conflict. There are various principles governing the conduct of
war. For example, the principle of proportionality, the principle of military necessity. These
principles are PIL principles but we are making them applicable to individuals. To that extent, individuals
become Subjects of PIL because they too are compelled to observe the Laws of War.
Are you following? Well, as if you have a choice noh.
So, you have to distinguish therefor Subject from Object. The Object does not possess international legal
personality and therefore it cannot bring international claims. States are the primary subjects while
individuals normally are mere objects of PIL. But in some instances, they may be regarded as subjects,
that is when they exercise their right to self-determination. They may be treated as subjects when there is
already an armed conflict. But in this instance, they may be treated only as secondary subjects.
So a simple question in the essay: How do you treat individuals in public international law? How do you
deal with that question? Sir, give me ten pages and I will answer that! Haha
That is why I would say that states are primarily the subjects of PIL, and these are some of the reasons
why:
States still primarily the subjects of PIL because:

International law is predominantly made and implemented by states


International organizations are still dependent to a large extent on the willingness of states to
support them
Only states can be members of the UN
Only states are entitled to call upon the UN security council under the UN charter in case of threat
to peace and security.
Only states may appear in contentious proceedings before the ICJ
Only states can present a claim on behalf of a national who has been injured by another state
Generally, individuals do not possess individual rights. Only to certain instances that they may be
regarded as subjects albeit secondary subjects.

So in that case of Reparations for Injuries Case that one involving a truce negotiator of the United
Nations, who was killed in Israel, the UN espoused a claim (we call this Espousal of Claim). The UN tried
to sue Israel for compensation to represent the victim and the heirs of the victim. It is in this case that the
ICJ defined the meaning of International Legal Personality.
So that definition of International Legal Personality is not taken from an author. It is taken from the ICJ
advisory opinion. You will notice here that the ICJ is a special kind of body because if you remember
Consti 1, our Supreme Court is prohibited from giving advisory opinions. Otherwise, there will be violation
to separation of powers. Thus, before judicial review can be exercised, there must be an actual case or
controversy first. The ICJ is a different body because it can give advisory opinion.
Maybe we can say that this is a biased opinion because the ICJ is an organ of the UN. Plus, you have the
question of WON the UN has international legal personality. But obviously, the ICJ will say, Yes it has.
This is what the ICJ said:
What the ICJ is trying to say, although it did not mention in its opinion is that there is such a thing as
Derivative International Legal Personality. This is according to some authors about the opinion of the
ICJ. So there is such a thing as Derivative International Legal Personality. And this is the kind of
personality that the UN possesses that enabled it to espouse the claim of its employee or officer.
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 5

Public International Law Midterm Notes 201


3
So the importance of the Reparations for Injuries Case is that it defined International Legal Personality.
Second, we also learned tonight that while the UN is not a state, it possesses International Legal
Personality by way of a Derivative International Legal Personality.
We now go to the next Topic:
One important characteristic of PIL is that that kind of legal system is Horizontal.
First, what do we mean by vertical legal system? It means you have a higher law, you have an inferior
law. You have hierarchy of authority. You also have hierarchy of institutions. You have a supreme
institution, which enacts laws and commands obedience. This is typical of a domestic legal system. Thus,
under our jurisdiction, if the statute violates the constitution, the statute is null and void.
But we dont see this kind of system in public international law. Some authors even call it the Billiard Ball
Theory. In billiards, you hit one ball with another ball without affecting the inside or the interior of the ball.
It only affects the outside of the ball.
International Law therefore deals with States as a whole and not dealing with what is inside that state. It
does not deal with the domestic law of that state.
However, recent development shows that in some instances, international law problems are solved by
looking at domestic legal systems. And when we study later on the Sources of Public International Law,
we have one source called General Principles of Law. And where do we get General Principles of Law as
a source of PIL?
They are usually found in decisions of Local Courts. That is why, on the controversial issue for example of
the validity of Transnational Abduction of Criminals, (as invented by the US. They even killed Bin Laden in
a foreign soil) there may perhaps be a situation where an International Legal problem is solved by the
application of a domestic legal system.
For example, let me go back to espousal of claims. Reparations of damages when a foreigner gets
injured in a foreign soil. The process is for the state to bring the claim to the international tribunal. But
espousal of claims has requirements before it can be done. Reparations for damage requires:
1. That the victim must be a national of the espousing state. [a state cannot espouse a claim if the
victim is not a national of that state. The term national has a different definition in PIL. Mere
citizenship is not sufficient. There is a requirement of Effective Nationality]
2. Prior exhaustion of administrative remedies. [You cannot go directly and espouse a claim in the
international level if it can be shown that you have available remedies in the local or domestic
level. Here you have to look into the law of the offending state.]
International law will sometimes look at the inside of the billiard ball in order to apply it into international
controversy. Thus, some authors suggest that the definition of international law should be changed. There
are some also who resist the idea of using the term international law because international law, whether it
is a law or not is still debatable even up to the present, because of the difficulty of enforcing it etc. etc.
Some authors suggest why not call it transnational law.
This brings me to my next question: Have you ever heard of Private International Law or the so called
Conflict of Laws? How do we distinguish this from Public International Law?
Private International Law deals with individuals, private corporation when there is a foreign element or
when it crosses a border. Example, A German corporation and an Australian corporation entered into a
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 6

Public International Law Midterm Notes 201


3
joint venture agreement in the Philippines. The contract was prepared in the US, and perfected,
consummated in the Philippines. This is a typical problem of conflict of laws. This is how we distinguish
private international law from public international law.
And we should also distinguish it from Trans-National Law where Public International Law still makes
use of domestic laws to solve a public international law problem, as opposed to the Billiard Ball Theory in
public international law where PIL is not supposed to be dealing with internal or domestic legal system.
[the class stares blankly at Atty Largo]Why is that your reaction class?
The next time we meet, you should be able to answer the following questions:
Some questions during the Oral recit:
Is PIL a law?
Is PIL a binding law?
For as long as it is part of PIL, then it is binding to all states?
Class, in a particular legal system, like the Philippines for example, when we talk about domestic legal
systems, and I believe this is true also in most jurisdictions, especially the democratic ones, we subscribe
to the majority rule. We are governed by the majority rule. Even if some segments of the society will not
agree on the RH bill, we have no choice but to abide when it becomes a law. We have to abide by the
voice of the majority.
Is this also true in PIL? In what sense?
If for example there are 50 states agreeing on a particular principle in a convention, non-member states to
the convention are also bound?
Is there a majority rule in PIL?
So here, we will have to go back to the definition of Public International Law. You cannot therefore
conclude right away that the moment it is considered part of PIL, it becomes binding upon all states.
Or maybe you should ask first the question: Sir, what kind of public international law sir? Because under
Article 38 Par. 1 of the Statute of the ICJ, there are various sources of PIL that may be used by the ICJ in
deciding contentious cases. So that if you are talking of a treaty or convention, then the treaty or any
provision in the constitution is public international law in so far as the member or contracting states are
concerned.
So that gives you an idea that it doesnt necessarily follow that majority rule applies in PIL. Did you
remember the Anglo Fisheries Case (UK vs Norway), what was this all about?
UK vs Norway:
-Didnt the UK attempt to impose upon Norway a particular principle in the delimitation of its maritime
authority?
-What was the 10-mile rule that UK tried to impose upon Norway?
-Was Norway considered bound to observe the principle that the UK wanted to be implement in the
controversy?
-Didnt the ICJ mentioned of the fact that it cannot be applied to Norway because this principle had been
consistently rejected by Norway? Therefore we have this principle called the Persistent Objector
Principle. The other term for this is Persistent Dissenter.
Anyway, I am just testing whether PIL is really a law. At least now, we learned that in so far as a particular
international norm is observed and considered binding by states then they may be considered as law. But
to say that it is law is not to say that it is applicable and binding on all states. Not necessarily. It depends
on what kind of norm or PIL that we are talking about.
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 7

Public International Law Midterm Notes 201


3
Can you think of a particular norm or PIL that perhaps may be binding on all states?
You must have encountered in your readings the prohibition against torture, slavery, genocide. How do we
call them in PIL? This we call the Jus Cogens.
So going back, is PIL a Law? It is a law between states that are compelled to obey it by reason of being a
party to a treaty or convention; or because the norm or the PIL partakes the nature of a Jus Cogens norm
that had been treated by all civilized states as non-derogable.
And so this brings me to the next question: Why do sovereign states obey international law? Is this not
contradictory because when you are sovereign, you should not be subject to any higher authority?
One theory offers: States obey PIL because probably they will be benefited by the practice of obeying it.
Or some states obey because there might be perhaps adverse consequences to disobedience, and so it
is the interest of that state to obey because of fear of adverse consequences to disobedience. For
stronger states, maybe their interest is perhaps expansion of possible peaceful agreements to be able to
enter into more commercial treaties and agreements. If you are known to be a disobedient state, it may
be hard for you to enter into such kind of agreements. That is self-interest that we are talking about.
These are based on human behavior. Why do people obey laws? Because we are governed by natural
law. We know what is right and wrong. We know the consequences of our actions. This theory on why
States obey public international law can somehow be likened to human behavior.
How is international law formed and enforced?
Is formed by agreement of states? If so, are we saying PIL is a positive law? (this is a highly controversial
question in international law)
Public International Law may be enacted or by agreement by a group of states. It may be considered a
positive law by the contracting parties. Thats correct! How else is PIL formed other than enactment?
PIL may come into existence as a result of a practice of states coupled with the belief that it is practiced
by states because the norm or conduct is binding upon states.
So it may be by convention, by treaties, by practice.
Now, the other concern is the enforcement. If it is really a law at least for those who are bound to obey
this law, how is it enforced?
Retorsion and Reprisal. How do you distinguish them?
Retorsion is a lawful act which is designed to injure the wrongdoing statefor example cutting off
economic aid (this is lawful because there is no legal obligation to provide economic aid, apart from under
special treaty provisions).
Reprisals are acts which would normally be illegal but which are rendered legal by a prior illegal act
committed by the other state. For instance, if state A expropriates property belonging to state Bs citizens
without compensation, State B can retaliate by doing the same to the property of State As citizens. This
must be proportional though.
We call this in PIL as Self-Help measures. You will notice that there is no international police or a sheriff
that implements or executes the judgment. There is no writ of execution that will be issued by the
international tribunal.
So that is one problem in PIL, that is how to enforce the norms effectively. There is no problem if states
obey them. The problem is if they dont.
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 8

Public International Law Midterm Notes 201


3
Other than self-help measures, what else? What are other ways of enforcing?
Are you familiar with WTO? What is this organization all about? Member states of the WTO are not
supposed to distinguish between foreign goods and local goods to the extent that it will restrict the trade
of these goods or hamper trade transactions between member states. The very idea of WTO is trade
liberalization. Now, what happens if a member state of the WTO passes a law that effectively prejudices
or unfairly treats foreign products in favor of locally produced products and in violation of the WTO?
It is possible that states have entered into a conventional way or mode of enforcing certain international
norms. Under the WTO, there are procedures by which a particular norm may be enforced as against a
member state. So in this case, the affected foreign state will be allowed to also do the same to the
product of the offending state. How is it done? It is allowed by the WTO itself.
So aside from self-help, there are conventional modes or methods of enforcing PIL as borne out by
treaties, conventions, mostly multilateral treaties. It is also a fact in international relations that some states
are bound to obey PIL because of bar of the public opinion. Some states easily comply with certain norms
for fear that they may be the subject of international criticism. Or, states of course may just voluntarily
comply with a public international norm.
These are some of the reasons why somehow, though not a product of deliberate enactment or not a
product of a higher authority imposing a law upon subservient entities yet, these laws get enforced just
the same.
So these are some of the reasons why sovereign states obey. You mentioned about Self Interest theory.
That is well accepted. Others offer what we call acculturation theory, meaning it is just part of the culture
of states that they easily obey to certain norms. In fact, even in the matter of the true concept of the rule
of law there has been a suggestion that rule of law is dependent on culture. Do you believe in that? If you
are familiar with the way laws are implemented in Singapore, it is hard to imagine why the Singaporean
government is able to do that. Is it just part of the culture of Singaporeans that they obey these kinds of
laws, while Filipinos dont? Is it cultural?
There is also the Legitimacy Theory. There is this feeling that a particular norm is maybe because it is
just, right, reasonable, or pragmatic. Even if we talk about certain policies in our company, there are rules
that we easily obey. It is not because we are compelled to obey it but sometimes, we obey the law
because we feel that it is a good law or that it is a sensible law. For example, it is reasonable for the
company to demand that you report on time at exactly 8:00am.
And the fourth one is the Positivist Theory. At least in so far as conventions and treaties are concerned,
states obey them because of consent. This is otherwise called the consent based theory. A contracting
party to a treaty of course is bound to obey because it had already consented to the terms and conditions.
Then we apply here what we have already learned about pacta sum servanda. You know that if you
enter into a treaty, you are to obey and comply to the terms and conditions of the treaty in good faith
because that is the consequence of entering into a treaty.
So practically, there are a lot of reasons why states obey PIL and we need to know why they do because
we need to be satisfied by the use of the name law in PIL to the extent that it may be binding under
these theories, then we can call PIL a law.
And these are some of forms of peaceful enforcement. Why highlight on peaceful? Because if it is
through the use of force, no less that the UN charter prohibits the use of force. So when we talk of
enforcement, we have to talk of peaceful enforcement of PILVoluntary compliance, public opinion, selfhelp and treaty based enforcement as in the case of WTO.
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 9

Public International Law Midterm Notes 201


3
Have you read the case of Nicaragua vs. USA. This is one case that you should not miss because there
is a very good discussion there about customary international law.
You will notice that this problem necessitated the application and understanding of customary
international law. The United States in this case argued that it made reservation in the UN charter that if
what is to be applied is a multilateral treaty, then it is required that there should be a consent on the part
of the USA before that multilateral treaty (the UN charter itself) may be made applicable only if the USA
consents. There was an issue on whether or not the application of certain norms would have to be
dependent on treaty or treaties. If we are to talk about the principle non-intervention which is another
principle in PIL, is it dependent on treaty such that if the ICJ is to rule that the UN charter is not applicable
or enforceable to the US because it made a reservation By the way, when states enter into multilateral
treaties or conventions, chances are some member states are compelled to make certain reservations on
certain provisions. You cannot expect all states to agree on all terms of the convention. A state that
doesnt agree on a particular term can make a reservation. We will study later on how reservation should
be done. In which case, the contracting party making a reservation becomes in fact a party to the
convention but the moment that particular provision is applied by the member states it is not bound to
comply with that particular provision because it has lawfully made a reservation.
This is what actually happened in here in the case of Nicaragua vs. USA. The US made a reservation as
to the application of the UN charter in so far as application of it being a multilateral treaty. This is just a
sort of introduction to my next topicSources of PIL.
When we speak of sources, we may refer to what we call the Formal Sources of PIL or the Legal or what
your textbook mentioned as Material Source of PIL. Can you distinguish one from the other? What is
Formal Source of PIL and what is Material Source of PIL?
When you say Formal, it is how international law is created or established. It is the method by which the
law comes into being. So when we say formal source in regard to customary international law, then we
can say: The mentioned in which Customary International Law is created is state practice.
When we speak of Material, what do we mean by that? So for example when we say, the way a particular
international norm is created is through the practice but where do we see the substantive law? Probably
in the decision of a Supreme Court of a particular state. In the Paquette Habana Case for example,
Official Declarations of Officials of State. So we are looking at where they are found, when we talk of
Legal or Material Source of PIL. So you have to be careful of the use of the term source because when
you say source, you may actually be referring to the way it is formed or where it can be found. So when
you say: How it is established, created, formed, you are talking about formal source. And when you say
legal or material, then it is where it can be found.
Now, let us talk about the first source.
You go to Article 38 Par 1 of the Statute of the ICJ, you will notice that the statute of the ICJ classifies
these sources into Primary and Subsidiary.
My next question is: Is there a hierarchy among the Sources of PIL? Since the statute mentions of
conventions, does it prevail over international customs?
While there is no some sort of hierarchy between them, one stands out as a set of norms that will be
considered as higher than any other international law. This is what we mentioned as Jus Cogens. This is
a valid observation.

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 10

Public International Law Midterm Notes 201


3
Historically, when the ICJ statute with reference to Article 38 Par 1 was formulated, there had been
suggestions to come up with a hierarchy but the member states were not able to do so. But they agreed
only on two kinds. The Primary and the Subsidiary.
In the Preparatory Works, which play a vital role in the way we interpret conventions and treaties. By
analogy, we recall what we learned in statutory construction. In the way we interpret treaties and
conventions, we also make use of the Preparatory Works that led to the treaty stipulation itself.
The ICJ statute uses the term convention but this of course includes treaties. In PIL, the terms
agreement, pact, charter, statute, covenant, treaty, convention, they do not matter at all. There is no
specific and peculiar treatment different from the others the moment a term is used in one agreement and
a different term is used in another agreement. Unlike in the Philippine Practice, we do make a distinction
between treaties and international agreements. And what is the relevance of distinguishing international
agreements from treaties? It is the requirement of concurrence by the Senate will be applicable only if
what is entered into by our executive department partakes the nature of treaty. So that if it is not a treaty
based on our evaluation or judgment, and may only amount into an international agreement under our
standards, domestically we do not require the concurrence of the Senate. So if it is an international
agreement, then the signature of the President is all that is required. But if it is a treaty, then we need the
concurrence of the Senate before it can be considered binding in out jurisdiction. So domestically, we find
relevance to that distinction. But not in PIL.
After treaties or conventions, we go to Customs.
In Article 38.1 of the ICJ Statute, it is described as a custom as evidence of the general practice accepted
as law. Then the Restatement of the US Document on Foreign Relations Law, Section 102 defines the
term Customary International Law results from a general and consistent practice of states followed by
them from a sense of legal obligations. There is practically no difference between both.
Even the US recognizes that these are the elements of Customary International law. [refer above]
So you have the objective element and the subjective element.
Why is it called the Objective Element? Objective because it is factual. You will see whether or not a
particular norm is being practiced by states. And where do we see that? How do we know whether a
particular norm had been practiced by states? Are there ways to determine how?
Let me go straight to the case of Nicaragua vs. USA. There was a contention on the part of Nicaragua
that the United States violated the Principle of Non-intervention when it aided the so-called Contras who
were then trying to overthrow the newly installed left-wing government of the Sandinista. And so there
was an intervention according to Nicaragua and this intervention violated customary international law. But
the US said this principle of Non-intervention that you are talking about is only based on the provision of
the UN charter which we have made a reservation that this is not applicable to us. And so the ICJ was
confronted with the question of Whether or not customary international should be dependent or
independent of treaty. And of course, I think you have encountered from your readings that the ICJ said
No, customary international law is not dependent on any treaty. In fact, it can co-exist with any treaty
stipulation. And so, when the ICJ said that somehow the reservation is applicable to the USA. And so, we
have to rule WON the principle of Non-intervention and other principles such as the prohibition against the
use of force, are independent of the UN charter because if they are independent of the UN charter, then
that argument of the USA becomes immaterial. With or without application of the UN charter, customary
international law can be applied. And so the ICJ went into visiting practices of the USA itself, WON it even
adhered to the principle of Non-intervention, the principle on the Prohibition on the Use of Force.

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 11

Public International Law Midterm Notes 201


3
The ICJ did as that. The ICJ found out that there was in fact a State Practice on the principle of nonintervention, use of force, respecting sovereignty of other states, etc.
What is the meaning of General Practice? This is the perspective of the ICJ: If some states do not follow
the norm, that should not be treated as an obstacle to that norm becoming a customary international law.
If it is not an obstacle, so how do we treat that? The non-practice may be considered violation or breach
of the norm. That is the better view: to call it a breach of that norm.
What is the requirement of General Practice as an Objective Element?
What do we mean by uniform and consistent practice? When we say consistent, can it be determined in a
short period of time? Because it is hard to tell that it has been consistently practiced by states when the
norm had been there by just 5 years. Is there such a thing as an Instant Customary Law? What did the
ICJ say in the North Sea Continental Shelf Cases (Norway vs. Denmark and Germany vs.
Netherlands)? The case mentioned of a possible Instant Customary International Law.
Very briefly, we have the Federal republic of Germany on one hand and Denmark on the Other and
Netherlands on the other. There was an issue as to the extent of the Continental Shelf. What is a
continental shelf? It is the extended territorial mass of a particular state. Of course, the landmass, when it
goes down towards the sea naa pa nai nahabilin nga extended foot sa continent. Below is a basic
illustration of a Continental Shelf:

Before the 1982 UN Convention on the Laws of the Sea (UNCLOS), there had been several issues as to
how the continental shelf should be computed. And one of the states which was heavily involved in the
controversy were these states of Germany, Denmark and Netherlands. Apparently, there was this
convention in 1958 that dealt with continental shelf. And what was the substance of that convention that
dealt with the continental shelf? How was the continental shelf supposed to be divided if for example you
have two states that are very close to each other and we cannot with precision determine the extent of the
continental shelf of one state? The 1958 Convention provided for the Equidistant Principle. And the main
objection to the 1958 Convention on the Continental Shelf is that it had been there for a period of just 5
years. So how can you invoke a provision in that convention (because at that time it did not take effect
yet). They said simply that the convention may not have been effective yet but it consisted of customary
international norm. And therefore, pursuant to the Nicaragua Case, it should be independent of any treaty.
And so on the question of WON it is possible to have an instant customary norm, what did the ICJ say
about it? The ICJ said that it may be possible to have an instant customary international law. But under
what condition?

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 12

Public International Law Midterm Notes 201


3
You will notice here class that when we talk of general practice, we are talking of practice of states. When
we talk about opinio juirs, then we are talking about (because it is subjective) how it is perceived by
states. All these elements necessarily require state participation. That is why it may be said that only
states make customary international law. Because you require state practice, you require opinio juris and
these are matters which only states can provide. And customary international law therefore is a result of
state practice and therefore it is a creation of states.
Take note also that customary international law evolves. This is the beauty here. It is evolving and
therefore one customary international law may be superseded by another customary international law
provided that the two elements are present. The new practice becomes the new customary international
law. That is possible but hard to achieve.
Your classmate was right in saying that Jus Cogens is the highest form of customary international law.
How is Jus Cogens defined? [refer to the definition above]
How do you test the validity of the terms and provisions of a treaty? Remember, there is no supreme law,
there is no constitution from which we can base the validity or invalidity of a particular treaty, unlike in a
domestic legal system. And so the states in coming up with one ground to invalidate a provision in the
treaty is when that provision violates jus cogens.
Jus cogens is a peremptory norm, a non-derogable norm. The problem of course is how to identify norms
that may have achieved the status of jus cogens norm. Probably, we can rely on state practice, we can
rely on opinions of international tribunals. And so authors of PIL will all agree that these three for example
are jus cogens norms: Genocide, Torture, Slavery.
So if you enter into a treaty that allows torture, it may be invalidated on the basis that it violated jus
cogens norm. So that the legitimacy of torture may be questioned by the victim, even if it is so allowed
under a treaty. It is non-derogable. By analogy, we can also apply this domestically. How do we determine
the validity or invalidity of a constitutional provision when it is already the highest law? The Supreme
Court said in the case of Planas, we may be able to do so if a constitutional provision violates jus cogens
norm.
Considered the most important source of international legal obligations. It doesnt have to be universal.
What is required is generality of the practice. There is wide acceptance of states involved in the activities.
Discussion:
Here, we have the basis characteristic of Customary International Law (CIL). Take note of the requirement
of repeated state practice.
Cases on Custom as Sources of PIL
[Atty. Largo enumerated here the cases but you may just refer to your syllabus]
Discussions:
Let me talk about the Paquette Habana Case, and how it is related to customary international law?
This involves privately owned commercial vessels. These fishing vessels were under the Spanish
Flagship and these were taken by US ships and deemed as prices of war. What happened back then was
that there was a war between Spain and USA. The owners of the commercial fishing vessels should not
be considered as prices of war because it has been a practice in customary international law that private
commercial vessels are not to be considered as prizes of war. Was it shown that the USA had also agreed
on that kind of norm that fishing vessels may not be considered as prizes of war and exempt from
capture? The US Supreme Court said that even the USA had believed and in fact practiced such
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 13

Public International Law Midterm Notes 201


3
customary norm. The US Supreme Court went into mentioning various treaties entered into by the US
that involved the recognition of exempting fishing vessels from capture as price of war.
Barcelona Traction case
Our main concern here is the propriety of Belggium as a State to represent the Belgian nationals
stockholders of the company in asking for compensation. What was the pronouncement of the ICJ in this
matter?
Classmate: The ICJ thought that initially the Belgian government has the legal standing in representing
the case of the Belgian nationals because if they dont have the standing then it would be tantamount that
claims are not taken but then in the second case which was decided on 1966, the ICJ reversed its
previous ruling and held that Belgian Government had no legal standing and..1970? (sir clarified the
year). In this case the ICJ said that ..diplomatic ... international law are continuously evolving and that
municipal legal system must be applied. It was shown later that there is a firm distinction between a
companys right and right of that of a stockholder. And in the international level, the State can seek
redress for any injuries or damages obtained by the company in that said state, but then nowhere in
international law that can be said that the state can represent the shareholders interest.
Sir: the reason why you were ask to read the Barcelona Traction case is to learn the possibility of applying
a law that is neither customary nor conventional, correct? And in fact as you have learned last time, the
reason, general principle of law are included as the third primary source of international law is because of
the possibility that indeed, there may be a controversy where no customary international or conventional
international law like a treaty law, may be applied to the case. And the difficulty here lies in the fact that,
specially at the time the statute of ICJ was created or the ICJ was established through that statute,
because only the ICJ which was accepted and recognized as an international tribunal. Okay? In the past
there had been ad hoc tribunals but which were created only for a particular purpose. Notably for the
prosecution of certain war crimes, rights against humanity, genocide and all those atrocities committed
usually during the First World War and up to the Second World War. Because only very recently that we
successfully after many attempts to create another permanent court in international criminal court or the
ICC as created by the Rome Statute. Okay?
And so the thinking then was it would be hard for the ICJ to look into possible references from decisions
of another international tribunal because there was no other international tribunal at that time. And so it is
expected that the ICJ will have to look into principles of law that have been practiced by domestic courts.
Okay? Mixed principles of law of course are generally practiced that why the are called general principles
of law. But since their applications are domestic then they may not have attained the status of a
customary international law. Principles such as what? Equity, prescription, estoppels, prior exhaustion of
administrative remedies, sot those are examples of general principles of law.
Now, all these principles of law as you will observe are most likely applied in a domestic controversy,
because seldom it is applied in an international controversy. Now, in this case of Barcelona Traction case,
what principles of law were applied? Which is not customary nor conventional?
Classmate: in this case the ICJ applied the municipal law with regard the State in representing the Spain.
Whose municipal law?(sir ask) Municipal law of Belgium sir. Of Belgium, or is it the municipal law of any
state for that matter? If you are to talk about rules governing, who among you here studied corporation
law? Nagjoke si sir..nangatawa ang klase. Katong nay background sa commercial law, are you familiar

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 14

Public International Law Midterm Notes 201


3
with what is called or termed as a derivative suit? Have you ever heard of derivative suit in corporation
law? Who remembers? Who eats onions a lot?
Did I show this last time? And the pronouncement of the ICJ? The ICJ made mention of the need to apply
municipal law. So in a derivative suit for example which I believe is a common practice among civilized
states. Whether you are probably democratic state or non democratic for as long as there is commercial
activity, for as long as there are corporation participating in commerce, I believe the concept of
corporation is similar anywhere in the world. Maybe a being that youve create a new personality and so
if there is an incorporation or creation of a new personality, can that personality may also have the
characteristics or the treats of any person? This type of course as a juridical entity and therefore it can
acquire assets. The properties of the corporation do not belong to the stockholders, do not belong to the
officers, theyre owned by the corporation as an artificial being. I think you have that principle learned in
other subjects without having studied corporation law. Yes? That the idea of distinct and separate
personality , I believe is a general principle of law in any corporation practice, otherwise, usual distinction
between a partnership and a corporation. And so if Barcelona Traction companies suffered losses as
result of what was alleged to be unreasonable refusal on the part of Spain to credit its foreign currencies
in the investment of sterling bonds. It was the company which actually suffered losses and of course
eventually, that will have to cause the losses also to the stockholders. If that is the idea and if there are
acts that are considered done against the company then it should be the company that has the
personality to claim that suit.
Are wrong done to the company frequently cause prejudice to its shareholders but this did not imply that
both were entitle to claim compensation. Whenever theres interest were harm not done to the company
towards the company that has to look to institute appropriate action. This is actually derivative suit. This
happen usually for example here, very common in family corporations. Some directors, stockholders, will
go out of the country leaving for example the elder brother or sister as the president, the CEO and the
COO at the same time of the company because there are no other siblings around. After five years,
perhaps the company will now go bankrupt and so the other siblings will start to investigate what happen
and when for example they realize that a lot of assets had been disposed of without the consent of the
majority of the stockholders. Many operations had resulted to loses not to mention that perhaps the
president may have misappropriated millions of company funds. If one stockholder may have the guts to
sue the elder brother or sister in order to prevent further loses to the company then he may institute
derivative suit in court. That derivative suit actually is filed for and in the name of the corporation and not
by the stockholder in his personal capacity. You will learn that in your corporation law. Okay? So instead
of saying, X as a stockholder against Y, president of ABC company, its going to be, ABC company
represented by stockholder X against etc. as a derivative. That is the principle practiced in, I believe in
most countries, especially in developed country. It was used by the ICJ because there is no available
principle that will apply to the question of whether or not Belgium would have the personality to bring the
suit for and in behalf of its nationals. But this is not to say that States cannot bring the suit for and in
behalf of national because you have learned in espousal claims the State is the proper party. In cases
where another State for example offends, violates the right of another citizen, of the citizen of that State
rather then it may espouse a claim. But this is different story because it involves a company. What about
this case of Southwest Africa? Let me just lead you right away to this principle on actio popularies. What
is action popularies and what is the status of action popularies in international law?

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 15

Public International Law Midterm Notes 201


3
My understanding of actio popularies is this is a question of the propriety or validity of filing a suit in
international courts. Being a suit in international courts for and in behalf of the victims, when the one
bringing the suit is not wanted. So what is actio popularies?
Classmate: actio popularies is that when a State represent a, like in the case of Southwest Africa wherein
the Liberia and the Ethiopia. So this involves nominee states binding Liberia and Ethiopia? So what was
the claim all about? They claim that Southwest Africa, they had the duty to promote the interest and
wellbeing of the inhabitants. Ethiopia and Liberia said that southwest Africa, they did not comply with the
requirement to enhance the wellbeing of the inhabitants.
And you mention of that its not recognize principle of law, so actio popularies is a municipal law, its a
local law actually, that has not yet ripen into a general principle of law as source of international law. So
let me go straight to the case of Netherlands vs. Belgium. Once again the, this time around the PCIJ,
because this is an earlier case, so before the ICJ, we have the PCIJ under the League of Nations, the
same principle was declared that the statute or the charter directs the application of the general principles
of law recognized by the civilized nations. I want to know what general principle was applied in this case.
(Classmate answered) The general principle that was applied in that case is the principle of equity. The
principle of equity is a broad principle and there could be so many specific principles that are basically
principles of equity. So in this case what is the specific and particular principle of equity that was applied?
Im sure this principle, you had already learnt in your civil law. It is recognized as one of the principle
involving estoppels. What about those who come to court must bring a rubbing alcohol.
So the complainant here is Netherlands because what did Belgium do that impelled Netherlands to bring
the suit? It is about a canal. A canal by the way class is not the canal we see here. We never you heard
about canal rest assured that is not the kind of canal that we see in Colon. Any man-made river is a canal,
ok? If its a man-made river, its a canal. And so what happened to the creation of a canal? What did it
cause Netherlands? What was the effect of building a canal by Belgium? Belgium had a defense that
Netherlands cannot complain because some time earlier, before the filing of the case Netherlands had
also did something similar to what Belgium did. Also in violation of the Treaty. And so resolving on the
propriety of bringing a suit by one who is also equally guilty, the CIJ or the ICJ rather applied that general
principle of law. That if you are equally guilty because you have also performed more or less similar
violation complained of by the other party then you are not a party who come to court with clean hands.
So another principle that is not of international law origin but practiced by municipal courts. But then
again, for lack of principle in international law then the International Tribunal applied general principle of
law.
So lets go back to the sources of public international law. In the context of course of ICJ resolving the
controversy, the following are the sources as you already learned. 1.) international conventions 2.)
international custom 3.) general principles of law.
For international conventions, this concept includes treaty. International conventions or treaties are
sources of international law of course only in so far as the parties are concerned. Is it possible for a nonparty to be bound by the norms in the convention? If the norm is originally a customary international norm
then the non-party may still be bound not by the treaty norm but by the customary international norm.
Although there had been so many conventions and therefore treaty norms that have incorporated and
transformed customary international norms, always remember your case of Nicaragua vs. US that the
same customary international norms have not lost their applicability. They can therefore co-exist
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 16

Public International Law Midterm Notes 201


3
alongside treaty norms so that in the event and for whatever reason the treaty norm may not be applied
the customary norm from which that treaty norm had been established may still be made applicable. That
is why the most important area of the study of international law would have to be the study of all
customary international law. That is why I invited you to read a book, we have a book there in the library
just about customary international law. Unya na sir when I pass the subject and I will have the time I will
read that. My concern now sir is to be able to learn as many principles as possible before going deeper
into each one. Bitaw sad, sakto na.
International custom no. Remember always your elements, Objective element, the state practice and the
subjective element of opinio juris. For the objective element of state practice, remember always that you
have to look into the relevant state practice not just any practice but what is important is for you to look for
the relevant state practice and the relevant state practice of course would be the practice of states
involved in the activity regulated by the norm. but you dont necessarily determine or evaluate state
practice of those states that are not involved in that activity governed by the norm but you have to look
into the states that are affected by the practice. So if for example the practice is to exempt commercial
vessels as subject of capture in times of war then it is relevant to look into the practice of those states
engaged in war in the past. That is the relevant state practice. Then as for opinio juris its an additional
element. Even if it is generally practiced by the states, if the practice is not by reason of the belief of the
practicing state that the norm is a binding law then there is no opinio juris. So that is an important and in
fact an indispensable element. And you need to know how to look into the proof of that opinio juris in the
same manner that you also have to know how to look into state practice. I think I showed you the way to
look for the state practice and to look for opinio juris. General assembly resolutions have been
considered as perhaps the best manifestation of the belief of states to a particular norm whether it is a
belief that the norm is a binding law or not. And in view of the possibility that controversy may not be
actually covered by customary norm or by conventional or a treaty law, then there is a need for the ICJ to
apply general principles of law which are normally municipal law practiced by civilized states and this is
expected because the ICJ does not have the venue to look for possible sources other than conventions
and customary international law. But you can include the practice of domestic courts of states. So these
are the primary sources of international law.
If, after the attempt to look for customary, conventional and general principle of law, the IVJ cannot still
resolve international controversy then it may resort to what we call the subsidiary means of looking for the
sources of international law. It has been said however class that judicial decision and teachings of most
highly qualified publicists are not in themselves the sources of the law. They are but the means and tools
by which these sources of international law may be discovered. So you dont say for example that this is
the norm because this is what Antonio Cassesi said because what Antonio Cassesi said, a well-known
authority in international criminal law , may perhaps be based on state practice, observations, and other
acts of the international players. So authors agree that the better approach is not to look at these
decisions and teachings as the sources of the law themselves. Unlike international customs and
international conventions where you can invoke a provision as the international law as between the
parties in so far as the conventional law is concerned. You can say Ahh, that section 1 is our law
because we are parties to the contract. But you cannot say that what Cassessi said is the law. What he
said would only be based on international law as he observed it. You have to take note of that. That is
why it has to be treated as subsidiary and by subsidiary we only refer to the tool by which you can
discover and look for international law applicable to a case.

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 17

Public International Law Midterm Notes 201


3
Question during class: Once the ICJ invokes the teaching of the highly qualified publicist Sir in its
decisions, can we say that once the ICJ uses it and how it interprets it, it becomes an international law
Sir?
Atty Daryl: No. because what the most highly qualified publicists, we have to use this term jud huh kai
mao jud ni ang wording, what the most highly qualified publicists. The ICJ is not invoking, its like
including what this most highly qualified publicist say not because what they say is the law but because
they have observed that that is the law. Kakuha kas difference? So you cannot say that is the norm
according to Cassesi but you can say that is the norm as observed, opined and evaluated by Cassesi.
Because its hard to imagine that a person is the source of international law. To put it differently ba.
It has been said and it has been asked in the bar exam many times that the principle of stare decisis is
not observed in ICJ decisions. First lets take a look at the legal basis for that. Is that true? Sir, you said it
already. Ahh, ok but what is the basis for that? By the way what is your understanding of stare decisis?
To be accurate at least in so far as the Philippines is concerned when we say decisions forming part of
the judicial system we of course refer to the decisions of the Supreme Court. So decisions of Court of
Appeals and trial courts even after they have become final and executor will not form as part of the law of
the land. But forming part of the law of the land is not the idea of stare decisis. Just so I can make that
clarification, when we talk about forming part of the land we are only talking about Supreme Court
decisions. But is stare decisis? Maayo pa lgi ug nag assign ko ug case ana. If in one case we have a
controversy and we brought that case to SC for example and on the process of resolving that conflict the
court made a pronouncement about our relationship whether we are partners or not in a business etc.
And it so happened that a case involving different issue but more or less the same facts but different
issue, ok. Then what the SC said about our relationship, lets say SC said that we are partners in the
business so I dont owe you money because we are partners. So in another controversy, that
pronouncement by the court that we are partners will have to be considered as the law of the case
between us. That is the law of the case.
So stare decisis would have to mean what? (Naay nianswer ani pero di maklaro ang voice.. ) I should
rather say the similar facts, similar issues, should be similar issues as well but involving similar parties.
Thats when our SC will say that the case before us is not novel. Diba usually ing ana. In the year 1980 in
the case of blah blah blah blah bah we have ruled that blah blah blah so on and so forth. In this case, the
cases of blah blah blah in 1980 and the doctrines proclaimed or pronounced therein are squarely
applicable to the case. There is no reason for us to depart from this ruling. In fact we warned counsels for
the petitioners not to be hard-headed and do research before filing a case in court. Stare decisis noh.
Thats basically a common law concept but practiced in a civil law country as well. Although at the end of
the day its not, what you called this, a super hard law that the court will always be bound by its earlier
decision. In any case, the court may perhaps depart from an earlier ruling for a good cause or for a good
reason. Let us not of course mention the possibility of graft and corruption but just for good reason.
Probably the same case, the same facts, the same issues but with little difference in some aspects and
probably because of a development at present, di ba. Pwede man na nga modepart because of that. Lahi
to ang thinking sauna because then we look at the state as more of really respecting Laissez Faire and
so the state was acting as referee in the international market for example or economic forces rather. But
now things have changed. In the 1987 constitution we look at the state for example as more of parens
patriae so may development na. So they may perhaps begin from that.

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 18

Public International Law Midterm Notes 201


3
In ICJ decisions, theres no such thing as stare decisis. What is the legal basis? Is there anything in the
statute of the ICJ that supports the principle that stare decisis is not observed? Thats practically my
question. (read Article 59) see? Only with respect to the parties and only in a particular case. So even if
two cases have practically the same issue, the ICJ is not bound. But in practice though, the ICJ cannot
help but invoke, well not really invoke but perhaps apply and mention to support its ruling in a particular
controversy. It shouldnt be invoking otherwise the stare decisis is being practiced. Its like the ICJ notes
that in the earlier cases of..the ICJ has pointed out this and that... In this case, practically stare decisis
but it shouldnt be construed as the ICJ deciding a particular case because it is bound to decide the case
in the same way it resolved the controversy in the past. But the reality of course is that the ICJ cannot
help but mention earlier rulings of the ICJ.
Another observation that we should take note is the ICJ decisions are independent of judicial decisions of
international court tribunals such as the ICC. Remember that there is no formal relationship between
these tribunals. These are practically different and independent tribunals. But then again reality as
observed finds that the ICC for example finds it relevant to talk about ICJ decisions especially in the case
of Nicaragua vs. USA which had been invoked in ad hoc tribunals that have jurisdictions similar to ICC. in
the pas we have International Criminal Tribunal for Yugoslavia, ICT for Roanda, all these ad hoc
international tribunals mentioned of self-defense, principle of intervention. All these taken from Nicaragua
vs. USA ICJ decision sya but these ad hoc tribunals have been applying it. Thats the reality. Theoretically
of course you do not have any formal relationship. And why should one international tribunal for example
mention a ruling of another international tribunal? May be this is perceived as an international tribunal
mentioning a principle in a decision by another tribunal because this may perhaps be an evidence of
opinio juris, an evidence of state practice. And so they can use that, an evidence of state practice or
evidence of opinio juris. Thats why let me just share this with you. I found this statement of Justice
Cardozo (dili ko sure ani,pakicheck nalang ) of the US Supreme Court in New Jersey vs Delaware. And
this is of course I think a very good observation talking about the nature of judicial decisions in
international law. If you are familiar with common law practice, that is basically the nature of the decision
of the ICJ. Diba in common law, in England for example, ang tawag nato sa mga law nila dili man civil
law so walay statute nga nagprovide kung unsa particular law for a particular controversy. But of their
cases have been resolved by their courts on the basis of this peculiarity of the facts between the parties
involved.
Many of the cases have been resolved by their courts on the basis of these peculiarities of the facts
between the parties involved. And so, in fact, a case may be decided differently in another case involving
different parties. Thats why it has been said that this law in England may considered judge-made law,
kinsay nag himo sa law? Ni evolve lang from their decisions. Havent you noticed that in common law
countries even in the US, partly civil law common law, but of common law tradition, they are fond of
experimenting on legal principle, they want to test case before the Supreme Court, kita dili man ta, well
settled na na, we cannot change the thinking of the Court. Ex. Suing Mac Donalds as the culprit for
obesity among the youth. But that is good. They want to know the law but are also conscious on how to
develop the law.
Justice Cardozos quote:
There are other possible sources, what are these?
Babasanta:.......soft law
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 19

Public International Law Midterm Notes 201


3
What is a soft law as distinguished from a hard law?
has no binding effect to the parties, they have yet to decide if they are to be bound by it
Largo: maybe they are not bound by it because they have not yet reached the stage of the treaty may
already be binding, ?
Yes sir,
You are agreeing with me? What is legally binding? A treaty may be a hard law or a soft law?
a hard law sir
inani na lang, What is an example of a soft law?
General principles of law?
General Principles of law are other sources of international law. And in your outline its called other
sources meaning not forming part, except with equity which may still be argued as still forming part of
general principles of law. Can you give an actual example?
Declaration, 1982, where it specifically states that it is a non-legally binding....
International environmental Law, class, is a new field of Public International law. Because it is just recently
that states began to be concerned about global warming, in the past we didnt have that concern, so
environmental principles have not been considered customary international law. States have just started
to act together in a treaty, or convention, or any informal organization, usually in what we call, IGO, Intergovernmental Organizations. So states, come together, meet, come up with mutual understanding in
certain areas and concerns, and mostly environmental concerns, ex. Stockholm convention.
A good example of a soft law is a UN declaration. Universal Declaration of Human Rights. While these
declarations are indeed principles of law, yet states are not bound by the declaration, meaning they are
not, if they do not obey, cannot make that as a basis for liability. These are declarations only of certain
norms, for states to follow, how? To enact legislations at the domestic level. Thus if it states that you
should not discriminate by reason of gender, if the Philippines fails to pass legislation that prevents
discrimination on the basis of gender, or failing to legalize same-sex marriage, there is no liability there.
What you can do perhaps, is to lobby. That is soft law.
Ang binding law ra gyud, katong sa sources. In fact, some authors say, ang true hard law, CIL,
Conventional law, mao gyud na ang hard law, since its legally binding, non-observance of which has legal
consequences. Soft law, pub opinion ra man na. Most of the time, you can invoke sovereignty, but it will
just be public opinion or just possible in your economic relationship,. Like perhaps the suggestion in the
UN declaration, there is a suggestion to adopt a democratic society, to protect freedom of expression. As
a sovereign state, we can have a communist state. Liable diay ko for choosing a communist state? Dili
diba. That explains why these norms could hardly pass the test of Customary International Law because
of legitimate invocation of sovereignty among states. Mostly environmental law principles.
Equity is another.
What is this ex aquo et bono?
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 20

Public International Law Midterm Notes 201


3
according to what is right or good
What is the rule here? When is it applicable to a controversy?
Art 38 (2) of the ICJ Statute: this provision shall not prejudice the power...........
What is the important condition? Justice, equity, dili na sila primary sources, daghan man na equity
principles, estoppel, even prescription. If possible, the general concept of fairness will be applied, is it
possible that the ICJ will apply that? Yes, provided?
If the parties agree. What is the paramount consideration, consent of the state? Why? Because we talk of
sovereign states.
So it may be possible in which equity may be allowed to override other rules, provided that the parties
agree.
What is the distinction between custom and usage?
...........
Custom is International law. Usage is just a practice, but without opinion juris. Custom is with opinion juris,
usage is without opinion juris. But both are usage.
One more consideration, whether or not there is hierarchy in the sources of international law. That was
previously the intention, as shown in the preparatory work of the International Law Commission, but
ended up to dividing the sources to primary and secondary. While there is no hierarchy among sources,
there is a consensus among states, that of these sources, jus cogens should be considered as always
superior to other norms.
So how do you solve a problem where a Customary International Law runs in conflict with another CIL, it
seems that a new international law had been developed to replace an old one. Akehurst mentions of the
usual principle lex posterior derogate priori, lex speciali derogat legi generali, basic principles in statutory
construction, a later general law cannot supercede an earlier special law. But these are just opinions, only
guidlenes, not rules.
What is Jus Cogens, and where do we find this?
article 53: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present Convention, a peremptory norm of general international
law is a norm accepted and recognized by the international community of States as a whole as a norm
from which no derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character.
What is Erga Omnes Norm
somehow related to jus cogens but specifically pertains to a specific act of a state should do to perform
It is more of a duty towards the international community, while jus cogens are peremptory norms,
derogation of which is not permitted, so it is a non-derogable. But if we talk of erga omnes norm, it is more
of a duty towards the international community.
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 21

Public International Law Midterm Notes 201


3
If we talk of the obligation to punish international crimes, that is erga omnes norm. That these crimes are
punishable, is jus cogens. Genocide is punishable, that is jus cogens. You cannot put in the Consti or
Treaty, that you allow genocide in certain cases, since genocide is jus cogens. Duty to punish genocide is
erga omnes. Duty to respect the right to self determation, is erga omnes. Thus if it is happens that in your
jurisdiction, there is a well-defined minority, you should pass a law that respects that minority, their culture.
That is erga mones. But that the right to self determination is worthy of respect, observance, is jus
cogens. The right to self-determination is jus cogens.
In the Philippines, how do we treat international law? Are they legally binding norms? Or applicable in
ceratin cases?
our country sir, as stated in the constitution, that generally accepted principles of international law form
part of the law of the land
So, what does these GAPIL generally refer? Refers to what? Are we talking about Customary
International law, conventions?
i believe that it does not distinguish on what type of international law, it forms part of the law of the land
as long as they are generally accepted
What about treaties, how do we make treaties part of the law of the land, if they are not part of
international law?
as long as the Philippines is a signatory, and ratifies the treaty,
Then it becomes part of the law of the land?
I believe you have studied this in Consti 1, the doctrine of incorporation and the doctrine of
transformation.
Art II, is perceived as the incorporation clause. Do we transform or just incorporate them.
we incorporate them. If it is not a GAPIL, ex. a treaty, the congress has to pass a law.....
What are automatically incorporated are GAPIL,
I believe you have studied this in your Consti 1, the Doctrine of Incorporation and the Doctrine of
Transformation. I understand Section 2, Article II of the 1987 Constitution is perceived as the
Incorporation clause. Do we transform international law or we just incorporate them pursuant to Section 2,
Article II of the 1987 Constitution?
You know what are incorporated automatically are of course generally accepted principles of
international law. If the principle of law is not a generally accepted principle of international law then in
what way may be it incorporated as part of the law of the land. Well its not by incorporation because our
incorporation clause only says generally accepted principles of international law. That principle of law
however may still be part of law of the land if we transform them.
And by adopting incorporation clause, incorporation theory rather, it doesnt mean that we do
away with transformation. We have in fact transform international law or any norm for that matter as part
of the law of the land. If not by incorporation it could be by transformation. And it can be done by simply
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 22

Public International Law Midterm Notes 201


3
passing a statute covering the same subject matter or as evidenced by the fact that treaties when
concurred by the Senate will make the Philippines binding or bound rather by the terms and conditions of
the treaty. And so if that treaty had been affirmed rather concurred in by ratifying by the Senate to the
extent that we are already bound by the terms and conditions of the treaty then that principle of law have
been transformed. So transformation of international law that perhaps does not partake of a generally
accepted principle of international law but its really controversial because were not using customary
international law. Were not using principles of public international law; we simply say generally accepted
principles of international law as forming part of the law of the land.
Kuroda vs. Jalandoni
We had as early as 1935, 1973 and 1987 Constitution adopted generally accepted principles as
part of the law of the land. So it is immaterial whether the Philippines was a signatory to the Hague
Convention because the Convention anyway covered customary international law of making liable those
persons whether military or civilian whove been guilty of planning and preparing or waging war
convention and of commission of crimes, that they are to be held liable or accountable therefore.
The rules and regulations of The Hague and the Geneva Convention form part of and are only
based on generally accepted principles of international law.
All right, so lets take a look at some cases, domestic ones, just to see how our Philippine Supreme Court
used international law with respect to the sources of public international law. So you take out of course
this provision which you have already studied since first year, even in your college years. You have the
provision in Section 2, Article 2, which says that the Philippines renounces war as an instrument of
national policy. But lets talk about this next phrase which follows: adopts the generally accepted
principles of international law as part of the law of the land. So, this is what we have already called the
incorporation clause, as opposed to what we call the doctrine of transformation.
Incorporation clause
So what is the significance of an incorporation clause in the Constitution? Well it simply means that
Generally Accepted Principles of International Law (GAPIL) law form part of the law of the land
automatically, and without need of an affirmative act of the government. Is that necessary? Not
necessarily in the case of customary international law because once an international law has attained the
status of a customary international law by being a member of the family of nations, we are bound to
observe any customary law, with or without domestic laws, but note that our Constitution does not use the
word customary international law. It simply says GAPIL meaning, to the extent that a principle of
international law may not have attained a status of customary international law, it may still form part of the
law of the land because of the incorporation clause. But when the norm is settled as a customary
international law, you dont need an incorporation clause. That is of course from the perspective of
international law.
On the perspective of our local courts, then the effect of the incorporation clause, or the importance of the
incorporation clause, is that it allows the courts to apply GAPIL law because no less than the Constitution
itself acknowledges that GAPIL automatically form part of the law of the land. Thats the trouble with
studying international law because you have to be conscious about your perspective. If your perspective
is that of the Supreme Court, its a bit different from the perspective of an international tribunal.

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 23

Public International Law Midterm Notes 201


3
Transformation
What about Transformation? There are two ways of making, or adopting international law as part of
domestic law. One is by incorporation, or when it would not require a positive act on the part of the
government in order to have the international law part of the domestic law; the other kind of making
international law part of domestic law is by transformation. From the word itself, you transform an
international law into a domestic law. If the question is, which one is being observed by the Philippines, it
would be wiser if you answered both, because transformation is an option, while incorporation is there
already. There is already a declaration by our Constitution of the incorporation of the GAPIL. But is it
possible to transform an international law as part of the law of the land? Well, for GAPIL, you dont need
transformation because its already deemed incorporated, but if the principle of international law does not
have the status of a GAPIL, may it be considered part of a domestic law? The answer is yes, by
transformation, and transformation is an option, or a prerogative of the state. How is transformation done?
Because we transform, it would seem that we need for a positive or an affirmative act on the part of the
government. Which agency of the government may transform international law into domestic law?
Ralph answers: Legislative branch of government.
Sir: How? It can be done directly by Congress of course, by passing a law, just like what we did in our
Rome Statute, the International Criminal Court. If you look at the Rome Statute, it had been copied in toto
by Congress just to show that we are implementing our commitment to the Rome Statute. So the
definition of genocide, the crime against humanity, war crimes, they have been copied in toto, so assume
for example that those definitions do not partake of customary international law, or do not partake of a
GAPIL, but just the same, these have been transformed by the direct act of Congress, or by passing a
law.
Treaty
Second, you know that a treaty is a source of international law, as far as the contracting parties are
concerned. You have also learned that the substance of a treaty may or may not partake of the nature of
customary international law. In many cases, treaty provisions are codifications of customary international
law but what if the substance of a particular treaty does not partake of the nature of customary
international law or a GAPIL? May it be transformed into our domestic law? Of course you know the
answer to that is yes, when the Senate concurs in the ratification of that treaty entered into by our
executive department. So that is one way of making an international law part of our law, or being
transformed into our domestic law via the treaty-making process. Thats why it has been said that this
could possibly be the backdoor to the incorporation clause, or those norms that do not partake of the
nature of a GAPIL, because these practices can still be considered part of our domestic law via
transformation and via the treaty-making process -- but indirect in a way. In contrast, passing a domestic
law is a direct way of transforming international law.
Case: Kuroda vs Jalandoni
So, what did the SC say in Kuroda vs Jalandoni? Kuroda was prosecuted after the Philippines created a
War Commission through the issuance of EO 68. The prosecution is for alleged acts of atrocities
committed by Kuroda by participating in the planning, the preparation, and the waging of war and
aggression and the commission of offenses considered violations of international laws and the customs of
war. This involved torture, rape, acts on civilians and other acts of atrocities considered by customary
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 24

Public International Law Midterm Notes 201


3
international law as punishable. The argument of Kuroda was that the Philippines cannot invoke that
because it seems that the Philippines based its authority to prosecute him from the provisions of the
Hague Convention. Its a good argument because the Philippines was not a party to the Convention, so
how can a state invoke a provision of a Convention to which it is not a party? Basic is the rule that if you
are not part of a Convention, then you are not bound by the basic provisions of that Convention. And if
you are not bound, then you cannot avail of the provisions. But Kuroda forgot of course that, as I
mentioned earlier, conventions and treaties may partake of the nature of customary international law or
not. It so happened that the prosecution of war crimes is a customary international law, and therefore with
or without the Hague Convention, the provisions that are there, which are of customary international
norm, may still be invoked by the Philippines. The SC noticed that even Japan is a party to the Hague
Convention.
Case: USA vs Guinto
In USA vs Guinto, you have the Court saying that certain principles may be applied by the SC when they
partake of the nature of customary international law. There are two justifications: one, because of the
incorporation clause, and second, even in the absence of an incorporation clause, it is customary
international law, and being a member of the family of nations, we are bound to observe customary
international law. And what customary international law is involved in this case? Its the principle of nonsuability of the state; that the state cannot be sued without its consent. You notice that there are reasons
for the adherence to the principle of state immunity, and in international law, the primary reason for
adherence and observance of the state immunity principle is of course the principle of what? What
principle in international law is considered the basis for the observance of this rule?
Lulu: We cannot assert a right as against an entity which is the source of such right.
Sir: Kabantay mo sa akong question nga premised in international law? Because domestically, there are
several justifications for state immunity, and one of them is what we call the positivist theory in your Consti
1. That since to sue is a right and that right obviously comes from a state, therefore you cannot use this
right as against the source of that right. But that is only applicable if it is a citizen of the Philippines suing
the Philippine state. But since were talking about international law, there must be another reason.
The character of being sovereign, thats one, and the principle of co-equality of course. Because if the
state is compelled to be the subject of a particular jurisdiction, then it would seem that that state is inferior
compared to the state exercising jurisdiction over it. This is expressed in this Latin term (wa ko ka gets) or
all states are sovereign equals and cannot assert jurisdiction over one another. Of course, the
consolidated cases involved in USA vs Guinto involve the application of the principle of state immunity,
and this involved the filing of local cases in Philippine courts against the USA. This is a case where the
Philippine courts will exercise jurisdiction over the USA.
What particular principle was applied, insofar as state immunity from suit is concerned? This one is of
course customary international law. My understanding in this case is that it involves principles governing
contracts. What about contracts? More specifically, in determining the application of the principle of state
immunity from suit, it is customary international law to distinguish between governmental and proprietary
functions. If you were under me in Consti 1, I think I emphasized the fact that even if the state had
entered into a contract, it does not necessarily mean that it had already waived its immunity, that just
because it has gone to the level of a private individual, then it becomes an ordinary party to a contract.
This is not necessarily the case, because its possible that the state enters into a contract under its
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 25

Public International Law Midterm Notes 201


3
governmental function, in which case, the state immunity from suit may be applied. So, this distinction
between two functions, proprietary and governmental, for purposes of determining the application of state
suability is a customary international law.
Case: Reyes vs Bagatsing
In the case of Reyes vs Bagatsing, Im sure you were asked to stud this in your Consti 2, since this is
about freedom of expression. Have you read the facts of the case? Its a classic clash between the
freedom of expression, in particular, the freedom to peaceably assemble, and the commitment to the
Philippines of the Vienna Convention on Diplomatic Relations adopted in 1961 and to which the
Philippines is a party. We learned in Consti 2 of course that freedom of expression is not an unlimited
right, as in any other right, and so one of the possible limitations is of course our commitment to the
international community. We have agreed to the international community that we will have to take the
appropriate steps to protect the mission against any intrusion or damage, or any event that would prevent
the mission from being realized in our country. The rallyists here, of course, needed to go near the US
embassy, because part of their plan was to submit a paper calling for the non-extension of the military
bases agreement.
Incidentally, they were there within the proscribed distance of 500M from the gate of the embassy. It was
considered by the SC as a lawful restriction to freedom of expression. So our commitment to the
international community had been affirmed as a valid limitation to our freedom. If you have watched the
movie Agro by Ben Affleck (segue about VCD 1 and VCD 2, joke, banter, happiness), the Iran hostage
case was the factual backdrop of that movie. One of the longest, if not the longest hostage-taking
incidents that ever occurred. Dili lang local ha, pero international, 14 months of hostage-taking, kay
nangayo man ug asylum tong leader sa Iran nga considered to have committed crimes, and gi-grantan
man ug asylum ni US President Carter. So the rallyists and demonstrators, mostly students ha, they
stormed the US embassy, and held hostage the personnel and asked that this former leader of Iran be
handed over to them, but which the US refused for so long until Carter was replace by Reagan.
Namatay man pud ang leader eventually, so no more reason for the hostage-taking. As segue, one of the
cases that you will be reading of course is the liability of the host state in failing to protect the mission,
because it was shown in the movie in fact, the local police in Iran did not do anything to stop the rallyists.
They were just there as observers. Actual to ha ang pagkadirect ni Ben Affleck. Siyay actor, siyay
director.
The local police in Iran did not do anything to stop the rallyist They were just there as observers. Factual
to ang pagka direct ni kuan, ah!! kinsa ni?.. ben afflect xay actor xay director xay co-producer. Iya nalng
tanan (haha) its a good movie sa asa na.Sa torrent! Bahala nka dha!
The provisions by the way as you will learn later on as we study diplomatic relations regarding the rights
and obligations, privileges of consuls, ambassadors and diplomatic bishops. You will learn there that the
provisions in the Vienna convention on diplomatic relations were actually taken from customary
international law. So, with or without the Vienna convention on diplomatic relations that is customary law
to protect the mission and that duty, of course, pertains to the host state. The Court even stated that the
Vienna convention is a restatement of the GAPIL. It should be part of the law of the land. You also have of
course the exemption, the privilege granted to foreign sovereign and in protecting their right to acquire
property by the receiving state which is also found in the Vienna convention on diplomatic relations. We
bound ourselves to grant diplomatic and foreign immunity from civil and administrative jurisdiction of the
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 26

Public International Law Midterm Notes 201


3
receiving state. We talk about the nuances of these privileges later on. Just take note on the part of the
Vienna convention on diplomatic relations, the substantive provisions partake of the nature of GAPIL as
declared by our Court.
Treaties
Can you answer the 1st question here Ms X?
May the rules found in the the Vienna convention on the law of treaties be applied in the following:
1. A dispute involving an agreement between state A and IMF world bank
X: No sir, because a treaty as an agreement between states involving(34:49)
Sir: What is your bases for saying so?
Based on the definition of a treaty, it is an agreement between states in written form
Sir: If we change IMF world bank to Australia, will you now say that dispute may be resolved through the
application of the Vienna convention on the law of treaties?
Yes, Sir provided there is a written agreement between the States
Sir; so the written agreement is enough?
X: And if it is also governed by International Law Sir
Sir: What do you mean by is governed by international law?
X: Provided that the provision does not violate International law
I understand that you have enumerated what are practically the elements of a treaty.
1. international agreement
2. entered into by states
3. in written form
4. to be governed by international law
Here, you will say that element number 2 is absent. So the Vienna convention on the law of treaties may
not be applied because the IMF world bank although it has a international legal personality, it may have a
derivative legal personality at least or it may have a secondary subject of international law but since it is
not a State so this particular agreement is not to be governed by the Vienna convention on the law of
treaties.
Sir: Ill accept that!
What if we change IMF world bank to Australia, and you said that it depends if the agreement is to be
governed by international law. Did you say that?
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 27

Public International Law Midterm Notes 201


3
X: Yes sir!
Sir: So if its to be governed by international law, then Yes?
X: It must also be in written form Sir
Sir: Ah so it must be in written form and to be governed by International law
Ang imong interpretation that it is to be governed by international law is?
X: Provided that it does not violate international law
Sir Ah mao nay meaning sa to be governed by international law?
Later class, you will learn that a treaty has primarily two characteristics.
1. It may be an embodiment or codification of already existing customary international laws which is
usually the case.
2. it may represent an evolution of a new customary international norm
So, you dont say that it shouldnt violate international law. The only correct statement would be that the
treaty should not violate jus cogens because that is one of the grounds of invalidating a treaty (article 53
vienna convention on the law of treaties). But if it is just an ordinary customary international law, parties
can enter into treaty provisions that are not necessarily in accordance with customary international law
and this will be interpreted merely as a new practice among States. Not that it violates customary
international law.
Sir: Whats your other concern here?
I think the phrase that it is to be governed by international law also implies that the agreement between
the State must not be governed by municipal law.
Sir: So, any dispute shall be governed by international law. Okay!
Thats correct. When we say to be governed by international law , the resolution of a dispute arising out of
the substantive provisions of the agreement will have to be resolved by international law and not by
domestic or municipal law because as you will see later on there may be agreements entered into by
States but are to be governed by municipal law by reason of the nature of their agreement.
Whats your other concern?
I think that what is practiced nowadays is that a treaty must be written as opposed to being oral.
What else?
Maybe you will have an idea we go straight to letter B.
Can you answer the question on letter B?
X: I believe no sir because the Vienna convention on the law of treaties was enacted on 1954
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 28

Public International Law Midterm Notes 201


3
Sir: Okay, so ana lang na xa? the mere fact that the treaty was concluded in 1954 and since the Vienna
convention on the law of treaties took effect in 1980 although it was , of course, drafted beginning 1969.
So, thats it? Can you not, for example, take a cue from the question? When I said in the question may
the RULES found in the Vienna convention on the law of treaties be applied in the following. Why did I
phrase this in this manner? may the RULES found. Whats the difference between may the RULES
found in the Vienna convention on the law of treaties and may the Vienna convention on the law of
treaties? Unsay kalahian class? (n.yaw2 c Ralph) Whats the significance in phrasing the question in this
manner? may the RULES found in the Vienna convention on the law of treaties be applied?
Can you help Ms. X? Is there significance?
X: In phrasing it like that may the RULES found in the Vienna convention on the law of treaties be
applied, it pertains to specific rules of the said treaty which is to be applied between States who have
assented to such convention be applied to their relation Sir
Sir: When I said RULES, did I literally refer to the provision or did I refer to the RULE itself? Rule is
different from a provision. Provision is that you will find in the text of the Vienna Convention but Rule is
different. Rule is a principle, not a section, not an article but the Rule in that section or article.
We still have to realize class that the Vienna Convention on the law of treaties is a treaty itself and do not
forget the fact that a treaty may just be an embodiment or codification of customary international law.
Always remember your Nicaragua v. US, okay! dual character of a provision, possible dual character of a
rule found in a treaty. So, when I said , for example, Rules then it maybe that the rule as embodied in the
Vienna convention on the law of treaties may actually be a customary international law. The Vienna
Convention on the law of treaties is a codification of customary international law. Remember, it took effect
in 1980 and it was drafted as early as 1969 and one author said by the way that even for those
provisions, I am talking about provisions now, even for those provisions found in the Vienna convention
on the law of treaties that may have not yet attained the status of customary international law at that time
may have actually attained the status of customary international law now. So, unsa tong tuiga 1969 so
ginapraktis to sa mga signatories, more than a hundred signatories. Imagine, more than a hundred States
practiced that norm, even if during that time it may have not attained the status of customary international
law, but it may have attained such status now because of the long period of time, practice and universal
practice. Liman ka more than a hundred States..Hmmm! Kuha mo punto ko? So how do you resolve this
now?
Now, let me go back to X.
Sir: In other words, my first answer Sir is we do not apply because apparently this was concluded before
the effectivity of the Vienna convention on the law of treaties. Article 4 provides for non-retroactivity of the
provision. So, treaties entered into before the effectivity of the Vienna convention on the law of treaties will
not be governed by the Vienna convention on the law of treaties. But that is just the general rule. Now,
taking into consideration the fact that rules in Vienna convention on the law of treaties are customary
international law then you may still argue that this particular rule that is to be applied to this particular
issue partakes the nature of customary international law then this treaty will have to be governed by the
customary international law. That is, of course, found in the Vienna convention on the law of treaties. But
you dont say that the Vienna convention on the law of treaties will be applied to this treaty because of the
non-retroactivity principle. Kakuha mo class? Mga bryt btaw mo dali rana makuha ninyo, simple rana.
That is the reason why I asked this question. Is it possible to apply a rule in the VCLT to a treaty
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 29

Public International Law Midterm Notes 201


3
concluded before its effectivity? Apparently, the answer would have to be yes because ang VCLT lage is
just a codification of customary international law. So, the rule is applicable but not the Vienna convention.
Letter C Ms X.
Accession would require an application to be bound by the treaty. So without accession, how is it possible
to apply the rules in the VCLT if the treaty is entered into by non-parties?
Sir, going back to the earlierd ma klaro (52:30)
Sir: So they are States, they are members of the family of nations so they are bound by customary
international law so even if they are not members or parties to the Vienna convention the rule in all
probability partakes of the nature of customary international law so it may be applied to State A and State
B. So, again it is not the Vienna convention that is made applicable but the rule that partakes of the nature
of customary international law.
Sir: Mr. X, are there treaties that are not necessarily themselves sources of international law? From Article
38 of the Statute of the ICJ, one of the primary sources of international law for the ICJ to apply in
contested cases before it are treaties and convention.
X: Yes sir, there are treaties necessarily themselves sources of International law. Those applicable only to
host countries
Wait, when we say treaties of international law we say treaty is a source of international law for the
contracting parties. If you talk about bilateral treaties then treaty provisions between State A and State B
are international law for the two of them.
If you will try to answer the next question, I think you can have an idea on how to answer the first
question. They are related. United states enterd into an agreement with the Philippines .. US naval
forces are allowed to lease Sumilon Island in Cebu. In the north ba aw in the south kita mo ana. For its
naval and military exercises in the Philippines for 5 years. Is this a treaty? Why or Why not?
Mr. X: The agreement entered between the Philippines and the US is suppose to be governed by
municipal law
Sir: Why? Why municipal law may be applied here? What law? What particular law? It is our civil law
provisions on law, lease contracts so if there will be a question whether or not USA violated the terms and
lease agreement and so we look into our law and the applicable provisions on rescission, for example,
pre-termination we look back into our domestic law. The agreement is not to be governed by international
law but domestic law. Meaning, it is not covered by the concept of a treaty because the fifth element that it
is to be governed by international law is absent but this kind of agreement, by its very nature, is to be
governed by domestic law. How do we call this kind of contract?If we speak of treaty that is to be bound
by international law we only refer to what we call as law-making treaty as opposed to contract-treaties.
Even if the parties of a particular treaty call the agreement treaty but it is not mandating for a rule of
conduct to be observed by the States under international law then it may be just a contract-treaty and
therefore it may not necessarily be a source of international law. Most treaties when they are to be
governed by international law and if they are to partake of the nature of a law making treaty they must be
more or less permanent in character. You remember your ..
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 30

Public International Law Midterm Notes 201


3
You remember your Sino British Declaration in 1984 where the United Kingdom declared that it will give
possession of Hongkong to China by July of 1997? It does not partake of the nature of a treaty in the
sense that it is not permanent because after July 1, 1997, after the obligation found on the treaty has
been complied with, then theres no more declaration to speak of. So, contract treaties may be the source
of obligations of States but not necessarily sources of international law. So, you can see rights, you can
see obligations in contract treaties, but you dont see norms, you dont see laws, you dont see rules that
will perhaps evolve and become customary international law. Lets take a look at treaties then. Those are
just questions that you should answer before delving into the studies of treaties. The process of course,
you will see how you experience them, that will be next week, the presentation.
Important points to consider. If we are to talk about treaties as for the parties to the Vienna Convention on
the Law of Treaties, there are more than a hundred signatories to the VCLT, then we have to read the
VCLT. For non-parties to the VCLT, they will still be governed by practically the same rules but not on the
basis that they are parties to the Vienna Convention but on the basis that those rules are customary
international norm. So this entered into force on January 27, 1980. Under Article 4, you have correctly
stated that as a rule the VCLT applies only to treaties after entry into force, not after signing, not after the
expression of the consent to be bound, but after entry into force, and therefore January 27, 1980 is the
relevant date. The law of treaties, meaning not conventional law but customary international law of
treaties and they are now codified and as I have said the VCLT may now be treated as customary
because of the long period of time from 1969, 1980 and up to the present. And how many states adhere
to the principles found there? More than a hundred! So if they have complied with state practice, the
objective element. Opinion juris? There have been a lot of decisions, domestically and internationally, that
apply the provisions of the Vienna Convention, so these are manifestation of your opinion juris. Later on,
we will talk about interpretation of treaties and this one tells you that the preparatory works, called travuo
perpetua in treaties, conventions of the International Law Commission, are great sources or basis or
guidelines for interpretation.
And then you have the definition of the treaty. And as I mentioned earlier, from the definition, we can have
the following elements: it should be international agreement concluded with States, in written form,
governed by international law. And I underscored the phrase in whatever its particular designation
because as you have already learned, they may actually come in various nomenclatures. I already
mentioned that it could be called, agreement, pact, understanding, protocol, charter, statute they dont
mean a lot, these names. What is important is the nature of the agreement. What nature? The definition!
Those are the elements, international agreement entered into by States, in written form, and governed by
international law.
And as mentioned last time, the names only matter in the way they are initiated and the subject matter of
treaties. Most treaties that are institutional, we call them institutional treaties when they have an objective
of creating an institution like a tribunal, a court like the ICJ, we call it a Statute. The Rome Statute also
created the International Criminal Court. Protocol usually is used when the treaty is simply an
amendment, a revision or a supplement to an already existing treaty and so on and so forth.
Then I asked that question, precisely because there is still a need for you to distinguish between a lawmaking treaty and a contract treaty. Only law-making treaties are considered sources of international law
as between the parties although contract treaties embody rights and obligations of States, they are just
rights and obligations, not norms, not rules, not law.

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 31

Public International Law Midterm Notes 201


3
A treaty may just be a codification of already existing customary international law, or an evidence of an
emerging customary international law, or evidence of the practice of an emerging customary international
law. You cannot say that a treaty will be invalidated by the mere fact that it does not conform to customary
international law, the only exception of course is when it violates jus cogens. And customary international
laws are not always laws, not always jus cogens.
What about agreements called treaties but not by States? We also have the Vienna Convention on the
Law of Treaties entered into by international organizations. So there is also a the Vienna Convention on
the Law of Treaties for international organizations but in PIL we study only the treaties entered into by
States and we only deal with the 1969 VCLT.
Now, treaty-making is a process, of course and unfortunately the process is not that simple. What usually
is the beginning or the precursor to the creation or establishment of a treaty? Of course it has to start from
a person, an entity. Im sure its not possible to readily come up with a treaty simultaneously with all
States coming together and create right away a treaty so we have for example the stages of proposal and
negotiation and drafting of the terms. A good example of this one is your Geneva Convention governing
armed conflict. How did it start? If you know, Henry Dunant, he was the first person awarded the Nobel
Peace Prize. He founded Red Cross in 1863 or something. It was in 1864, I think, that he asked for a
meeting with the Head of the Department of Foreign Affairs of Switzerland and initiated the process of
making Switzerland the seat of a conference to draft a permanent rule on the rules governing armed
conflict. That made him the first recipient of the Nobel Peace Prize. So the first Geneva Convention on
this matter was drafted on 1864, the second in 1901, the third in 1929 and the fourth in 1949.
You have to identify how a treaty is initiated. It could be from a person, a highly influential one. It could be
an organization, usually an international governmental organization. In this case could be a regional
association or organization of States. Maybe for example in an ASEAN summit, you can probably state
there that a resolution has been passed whereby all concerned States to the Spratly Islands had agreed
to sit down and talk about the possibility of negotiating or come up with a treaty. And later on of course,
there may be a case wherein one State may offer a proposal. Although from the perspective of
international law, it is not usually done because of mistrust as to the interest of that initiating State. But in
many case, it will be an international governmental organization that will initiate the drafting of a treaty.
Then you have adoption and authentication of the text of the treaty by the negotiating States. Then you
have ratification of the treaty by individual States.
But first, you will have to take a look at the capacity to enter into treaties. It is an inherent power or right of
any State that it has the capacity to contract or enter into treaties. It is a necessary consequence of
Statehood. Thats why we studied State in Consti 1 because it is important to distinguish a State from a
non-state. There are important attributes found in a State that are not found in non-states and one of the
attributes of State is capacity to enter into treaties. It is customary international law that it is inherent in
every State. Article 6 of the VCLT: Every State possesses capacity to conclude treaties. In our State,
we require concurrence by our Senate. The Capacity to enter into treaties is inherent. It is recognized by
Article 6 of the VCLT.
States are juridical entities and so they are represented by officers or representatives. The concern is who
is authorized to represent the State? General rule is that you must have full powers. What is the definition
of full powers? It is a document. Article 2 (c) of the VCLT: full powers means a document emanating
from the competent authority of a State designating a person or persons to represent the State for
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 32

Public International Law Midterm Notes 201


3
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.
Well, even ratification is an executive function, the more that it is an executive function to adopt,
negotiate, authenticate, and express the consent to be bound. And there are different ways by which a
state can express its consent to be bound. The legislative department will come in only where the
constitution requires the participation of the legislative department. So this process becomes a political
act. That full powers must emanate from the chief executive. In domestic cases, this would be the Special
Power of Attorney.
Article 7, 1 (b).
1. A person is considered as representing a State for the purpose of adopting or
authenticating the text of a treaty or for the purpose of expressing the consent of the State to be
bound by a treaty if:
(b) it appears from the practice of the States concerned or from other circumstances that their
intention was to consider that person as representing the State for such purposes and to
dispense with full powers.
Atty. Largo: Paquete Habana case talks about the objective element of state practice and this
element would require also of how to determine state practice, what is the element of such state
practice. Example official act of govt, even decision of court, declaration of president would be also
source of the norm, treaties entered by statespractice through a particular norm look at the treaties
entered by state.
Issue in Paquete Habana case : Whether commercial fishing vessel be exempt from capture as
prize of war. And the US SC no less declare even US have acknowledge that part norm as customary.
The US SC went over certain acts by US to prove that US itself believe that norm. These are acts entered
into by US that constituted state practice. You have for ex. King Louis of France started itremember the
movie Patriot- France US Alliancegiving of gift, that statue of liberty.
Nicaragua vs US: Norms involve
The leftist in Nicaragua succeeded in overthrowing the rightist government and thereafter as
alleged by US supported the leftist government of El Salvador against the legitimate government of El
Salvador and El Salvador being an ally or having friendly relationship with US sought the help of US and
considered the act of Nicaragua in supporting the rebels in El Salvador as an act of aggression. And
invoking a collective self- defense, the US indeed helped El Salvador and initiated certain military and
paramilitary activities in Nicaraguan soil which included the making of mines in Nicaraguan ports, the
flying of aircraft across or over the airspace of Nicaragua and another military activities which Nicaragua
claimed violated the principle of non- intervention and the prohibition against the use of force.
The US counter argued that principle found in the UN Charter cannot be made applicable to US
because what appeared to be that they made a reservation (Art 36 of the ICJ). But Nicaragua argued.
The US said if prohibition against the use of force will be considered as customary international law, it
may have lost its force because that customary law cannot be transformed into a treaty law. And
according to the ICJ that is not correct because in fact customary international law can co- exist alongside
with treaty norm so that even if the ICJ argued that the reservation must be in fact applicable and
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 33

Public International Law Midterm Notes 201


3
therefore the UN Charter could not be applied to the US especially that El Salvador, a third party that may
be affected with the judgment, was not made a party to the case filed by Nicaragua.
And so it was the ICJ said, that well even if the UN Charter will not be applied, customary
international law can be applied to the United States. And the same customary law that prohibits the use
of force will give you this information.
Principles declared in Nicaragua case:
General customary international law must be determined by the general practice of the states and
not just by the states party to the dispute before the ICJ. Opinio Juris may be deduced form the attitude of
the parties concerned and that of states certain to General Assembly Resolutions. General Assembly
Resolutions, we are talking about the general assembly resolutions of the UN, which is its largest organ
it is the assembly of all the members of the UN. Every time there maybe resolutions that should be
treated as the manifestation of the belief of member states towards a particular norm found in that
General Resolution so that if the General Resolution for example says use of force should be prohibited
then, because General Resolution is a product of the General Assembly, then that must be considered as
the expression of the member states. And that expression translates into the belief that that norm is
binding otherwise it would not be stated in a resolution of the UN.
What is important in opinio juris is the belief that it is a binding law. Practice, in fact is irrelevant if
it is not coupled with the belief that the law is practiced because they believe that it is binding. Even if the
practice is 100% practice by the states but it is practice by reason of convenience, by reason of
protocol just a practice not out of legal duty to practice the same is not binding.
General Resolutions are full indicators of the belief. Then the prohibition of use of force is jus
cogens according to the ICJ. Principle of non- intervention is customary international law and not affected
by treaty stipulations. And as I have discussed earlier, customary international law can co-exist alongside
with treaties. And quoting the ICJ in this case, it said even if the customary norm and the treaty norm
were to have exactly the same content, this would not be a reason for the court to hold that the
incorporation of customary norm into treaty norm must deprive customary law to be deprived of its
applicability as distinct from that of a treaty norm.
Citing Continental Shelf cases, ICJ opinioned, it is of course axiomatic, it is immaterial for customary
international law to be looked for the actual practice and opinio juris of states even though multi- lateral
conventions may have important role to play in recording and defining rules deriving from customs.
Although, of course, multi-lateral conventions or treaties, when they for example do not follow customary
international law then that may perhaps an attempt on the part of the states to generally establish a new
norm, if it so happen that it is different. But if it is just the same then it has no effect at all It is just another
belief that it is a binding law.
What constituted proof of opinio juris in Nicaragua case about prohibition of use of force and nonintervention?
Resolution 2625 entitled 'Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of the United Nations'.
Resolution 3314 a Definition of Aggression it may be considered to be agreed that an armed
attack must be understood as including not merely action by regular armed forces across an
international border, but also 'the sending by or on behalf of a State of armed bands, groups,
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 34

Public International Law Midterm Notes 201


3
irregulars or mercenaries, which carry out acts of armed force against another State of such
gravity as to amount to' (inter alia) an actual armed attack conducted by regular forces, 'or its
substantial involvement therein'.
Automatic submarine contact mines of 18 October 1907(the Hague Convention No. VIII) provides
that 'every possible precaution must be taken for the security of peaceful shipping' and
belligerents are bound 'to notify the danger zones as soon as military exigencies permit, by a
notice addressed to ship owners, which must also be communicated to the Governments through
the diplomatic channel' (Art. 3).
Neutral Powers which lay mines off their own coasts must issue a similar notification, in
advance (Art. 4). It has already been made clear above that in peacetime for one State to lay
mines in the internal or territorial waters of another is an unlawful act; but in addition, if a State
lays mines in any waters whatever in which the vessels of another State have rights of access or
passage, and fails to give any warning or notification whatsoever, in disregard of the security of
peaceful shipping, it commits a breach of the principles of humanitarian law underlying the
specific provisions of Convention No.VIII of 1907.
resolution of the Sixth International Conference of American States condemning aggression (18
February 1928) and ratification of the Montevideo Convention on Rights and Duties of States (26
December 1933), Article 11 of which imposes the obligation not to recognize territorial
acquisitions or special advantages which have been obtained by force. United States acceptance
of the principle of the prohibition of the use of force which is contained in the declaration on
principles governing the mutual relations of States participating in the Conference on Security and
Co-operation in Europe (Helsinki, 1 August 1975), whereby the participating States undertake to
'refrain in their mutual relations, as well as in their international relations in general,' (emphasis
added) from the threat or use of force.
Even if the US did not sign the Montevideo Convention, this should be proof of the belief
of the states to prohibit the use of force especially if we consider the membership of a
particular convention. So you have to take this all together and the ICJ will adjudicate
whether or not there is in fact a general practice and that this general practice had been
done because the states believe them to binding norms.
Libya vs Malta
This just tells you that the rules regarding EEZ had been considered already as
customary international norm. In the past there had been issues whether or not a particular
delineation would be considered as customary international norm, the establishment of United
Nation Convention on the Law of the Sea(UNCLOS, there had been the establishment of certain
customary international norm.
And then you were asked to talk about Asylum case. It was argued that being a grantor of asylum, it has
the prerogative to determine the nature of the offense, whether or not it was covered by its ( Havana)
Convention. And there was opposing evidence of that principle practiced by Latin American States but the
ICJ was not convinced that there is such a practice especially considering that it was a regional custom,
greater uniformity is demanded of the states practicing the alleged custom.
So we go to this concern. May a State validly exempt itself from the application of customary international
laws? Are all States bound therefore of customary international law? Is there such a thing as majority rule
in international law?
Mr. J: Yes, Sir. It depends on what customary international law we are talking about. If its a jus cogens
norm, then it cannot validly exempt itself but if it is not jus cogens then perhaps it can as when the State
parties enter into a treaty and that treaty establishes a regime which is different from a customary
international law.
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 35

Public International Law Midterm Notes 201


3
Sir: Ah so you were saying for example, States A and B will enter into a treaty that provides for terms and
norms that do not conform to customary international law then at least as for the parties to that treaty they
are bound by that practice and that practice is not in accordance with customary international law. Ok. If it
is jus cogens, it is non-derogable. No state is permitted to violate that. Any other situation where a state
may exempt itself from customary international law assuming the international law is not a jus cogens?
Mr.J: Doctrine of Persistent Objector. If there is a custom among states that a state does not conform or
shows deliberate acts resistant to and non-conforming to that custom then such custom will not apply to
that state.
Sir: So if a country exempt from customary international norm what is needed is simply to disagree to the
practice.
If you will not observe a customary international law you are not a persistent objector but a violator of
customary international law. You become persistent objector and may be exempt from observing such
customary international law if from inception of the formation of customary international law, (So wala pai
customary international law kay i-form pa mn xa), you had already persistently objected to that practice.
So that in case that practice had already ripened into a customary international law then you will not be
bound by that, unless that customary international law has reached the status of jus cogens, in which
case even if you objected to it from the beginning you are still bound to observe such norm.
But later on we will also learn that even the establishment of jus cogens is controversial in public
international law. But the concept of jus cogens of course is just found in the treaty, VCLT.
In any case, that is what we call Persistent Objector Doctrine.
In the Third Restatement US, it is called Persistent Dissenter.
US also believed that there must perforce be objections from the beginning before that norm had already
ripened into customary international law. What happened in this UK vs. Norway? This involved a
controversy which arose from particular practice of Norway in delineating its baseline. Apparently Norway
delineated its baseline on the basis of?
Remember your basic Consti I, national territory, Under UNCLOS 1982, in determining your territorial sea
you first have to identify your baseline. This baseline may be established by applying either:
a) straight-line method which is applicable in archipelagic state or
b) low-water mark baseline where you follow that low-water mark and that is where you start counting
your 12nm in determining territorial sea.
Since it is hard to apply low-water mark method in archipelagic state, UNCLOS permitted certain states to
apply straight line method which requires delineation of the baseline by creating an imaginary lines
connecting the outermost points of the archipelago. In this case of Norway its base, its coast is deeply
indented.
According to Norway it is to its advantage it will not to apply strict low-water mark because it will only have
very limited internal waters and it is in fact also hard as because of that deeply indented coastlines.
Siguro dunay mga curvatures na grabeh kaayu nga kung imo nang i-follow, ang mo-come up na 12nm
wala pa ka extend farther the natural contour or formation of coastline.
What is the argument of UK?

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 36

Public International Law Midterm Notes 201


3
Mr. J: UK contended that 10 mile limit rule was contrary to customary international law but ICJ said that
because Norway was persistently objecting to the 10mile limit rule then it is exempted from the application
of that rule.
Sir: so, the ICJ ruled that this straightline baseline method has been commonly practiced. But remember
that this ws discussed by ICJ in 1950s wala pa ang UNCLOS. Indeed by dispute on how to delineate the
baseline but now settled na na by UNCLOS. ICJ said that if UK wanted Norway to adopt the 10mile rule
rather than using the straight baseline method, assuming that this was the customary international law
because the ICJ said that what appeared to be customary international law was the straight line method,
it cannot be imposed upon Norway because it has persistently objected to the practice.
And this case of UK vs. Iceland, principle of rebus sic stantibus. (ObliCon) Legal and physical
impossibility to perform an obligation in the contract by reason of sudden material change of circumstance
that renders the obligor unable to perform the obligation the normal way or as expected under the
contract. So anyone can seek exemption from complying with the obligation.
In relation to treaty obligations; Even if assuming, it is not mentioned by VCLT, since it is a CIL that is still
an exemption to the compliance of treaty obligation. But of course, in UK vs. Iceland, ICJ did not find the
circumstances warranting the application of Rebus Sic Stantibus.
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapon. How general assembly
resolutions become relevant in determining opinio juris. These are clear expressions of how states think
about a norm. These are expressions of their belief that the norm is binding and so for example in this
cse, how did the ICJ render an opinion on the matter?
Mr. J: ICJ looked at the different treaties that would show any prohibitions to the use of nuclear weapons
but ICJ failed to find express prohibitions of its use. So ICJ looked into CIL and it examined the
resolutions adopted by UN General Assembly but ICJ still failed to find it.
They did not definitively rule that the use of nuclear weapon was illegal.
There was a parallel principle of self-defence, doctrine of deterrence.
States were divided on their perception on the legality of the use of nuclear weapon.
Sir: So, this is a good illustration on how opino juris or state practice will have to be evaluated. How did
ICJ do this? ICJ asked the questions,
1) Has there been a treaty or convention allowing the threat or use of nuclear weapon
2) Has there been treaty or convention allowing it?
3) Has there been a treaty or convention disallowing it?
ICJ voted. Out of 15 justices only 14 voted.
On the principle that there is indeed either customary or conventional customary international law, any
specific authorization for the threat or use of nuclear weapon? Is it allowed by CIL or at least by treaty or
convention?
ICJ: No CIL, no treaty also that allows or permits the use or even the threat of the use of nuclear weapon
But they are a little bit divided on the issue that neither is there in a customary nor a conventional
international law any comprehensive and universal prohibition on the use of nuclear weapons. Maybe
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 37

Public International Law Midterm Notes 201


3
those that said that there are conventional International Norm that prohibit maybe invoked a provision on
UN Charter prohibiting the use of force in general and that the use of nuclear weapon should be
considered a use of force.
They were also unanimous on that principle that the threat or use of force in by the means of nuclear
weapon contrary article 2(4) UN Charter which pertains to the prohibition of the use of force, and fails to
comply with the requirements of article 51, [self-defense (individual or collective): a) there should be
unlawful aggression; b) since self-defense is expected to be an instant reaction on the part of the state,
they have to report to UN security council, all the things that they are doing in the meantime that the UN
security council has not taken steps to address the threat by the aggressor.
Simple story: if mo.violate sa article 2 and cannot comply with article 51, then it is Unlawful. This is
obvious.
Unanimous also: that the threat or the use of nuclear weapon should be compatible with the requirements
of international law applicable to article 2
3 laws applicable in international law:
Laws of peace
Laws of War
Laws of Neutrality not engaged in war
Under the laws of war, the treatment of nuclear weapon: threat of the use or the use itself: the principle is
that it should be compatible with the requirements of international law and with international humanitarian
law and including the treaty obligations dealing with nuclear weapons. That it should be compatible is
obvious. This principle does not say that it is compatible. It simply says it should be compatible. Why is it
relevant in IHL? Because a lot of principles that may be applied to the use of nuclear weapon. One of it is
the principle of proportionality in IHL. And the kind of weapon used is relevant in determining the
proportionality. The principle that the use of nuclear weapon should conform with IHL standards is clear.
Divided: (highly controversial. ICJ was not definite on its pronouncement.) While the threat or the use of
nuclear weapons will generally be countered by the rules by itself, that it would generally .. The court
cannot conclude deliberately whether it would be lawful or even unlawful in the extreme circumstance in
the sense that the very survival of the state is at stake.
Remember common law as opposed to civil law. Civil law, everytime you solve a controversy, a civil law
thinker think first of statutes, then jurisprudence, then perhaps practice and tradition. In common law
countries like England, they dont look for statutes right away, a case is lifted differently from all other
cases. A common law country, the law really evolves a lot. Possible that one thing is decided in different
manner and stare decisis is not as strictly applied and so common law is a judge-made law.
International law may also be likened to a common law according to Justice Cardozo. Instead of saying
judge-made law, it is state-made law. Positive, through enactment by practice. Remember, CIL how it is
formed, state practice mn. So it is hard to come up with principle that will foreclose the possibility of
development in international law and relating rule less than the most important right of all states- right to
self-preservation unya himo-an lang nimo xa ug strict na standard? Awh, ingon ang ICJ, wah. Kani ha, di
ta klaro ani ha. It involves the right to self-defence, maybe, probably, welcoming the idea that it is the only
way that the state may be able to defend itself through the use of nuclear weapon that it may be lawful.
Do you subscribe to that? Thats the beauty of CIL because you can really come up with your own
thinking and probably we can later on one of the highly recognized publicist, ha. And your work will be
considered a subsidiary means of determining the existence of international law, hastang ngilngiga! ^_^
Nuclear weapons and the Right to Self-defense
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 38

Public International Law Midterm Notes 201


3
FRANCE vs TURKEY
This case of France vs Turkey, is very relevant to the opinion of the ICJ on the legality of the threat for the
use of nuclear weapons. Kay unsa man tong mga declarations? This one, restrictions upon the
independence or sovereignty of states cannot be presumed. Mao nay basis maong dili maka comeup og definite opinion ang ICJ on the validity of the use of nuclear weapon. Whats the thinking of an
international tribunal, whether ICJ or any intl tribunal for that matter, if we are to determine whether a
particular act of a state is valid or not? We look for a customary law; we look for a conventionaI
international law, if you see nothing about it, then you will not pass judgment on the validity or invalidity of
the practice of that state. Restrictions upon the independence or sovereignty of states cannot be
presumed. Mao bitaw mangita gyud kag clear evidence of the prohibition against it. Clear evidence of
the norm or practice against it. Asa mana nimo pangita-on? Customary international law. Later on, we will
talk about publicists, jurists thats where you can perhaps get evidence of the practice. And then you will
have to look into treaties or conventions. If you dont see anything from there that prohibits the practice,
whats the thinking? You cant say that its lawful or unlawful. Mo ingon lang gyud ka nga it cannot be
prohibited because theres no customary intl law or conventional intl law that prohibits it. Is it lawful or
unlawful? Di sad ka ka-ingon, di lang siya prohibited.
What happened in this case, kay kini bang mga French officials ni traverse(?) *dili gyud klaro guys,
sensyaaa!* pa gyud sila sa Constantinopole sa Turkey. Maybe while on their way to turkey, ga study sila
sa jurisdictional rule on crimes committed on board a merchant vessel on high seas. Pag basa nila, ahh
high seas, walay maka exercise og jurisdiction except the flag state.
What is a flag state? Its the state where the ship or vessel is registered. Kani siya nga vessel, nakaregister ni sa France. Flag state niya is France. Ingon sila, ahhh, moadto lage ta didto, di lage ta hilabtan.
France will have exclusive jurisdiction on what will happen on high seas. Asa ka nga gi dakop? Gi
prosecute. France objected to the exercise of jurisdiction of Turkey because indeed the vessel was
registered in France and that therefore the flag state principle will apply. Gi unsa mani sa ICJ?
What was the issue? WON a particular state can exercise jurisdiction over acts committed outside of the
territorial jurisdiction of that state?
PCIJ said: Whether to say it is limited or not, we have to look for customary or conventional intl law
that prohibits the state from exercising jurisdiction outside its territorial jurisdiction, kay kung naa na sa
conventional intl law, ato i-check kung member ba ang Turkey. Otherwise, ato sang i-check kung
customary intl law bana siya. Unsa ato ng gipangita? A norm that says a state cannot exercise jurisdiction
over acts committed outside its territorial jurisdiction. Unsa may nakit-an sa PCIJ? WALA. In fact, on the
contrary, gina practice man gani nang pag exercise og jurisdiction by states even for acts committed
outside.
In our case for example, we adopt EXTRA-TERRITORIAL JURISDICTION, even in our Criminal Law.
Article 2 of our RPC - Acts committed by our ambassadors outside and in line with their functions, maka
exercise man tag jurisdiction. For certain crimes like counterfeiting of coins, naa tay jurisdiction. And we
are not the only state doing that. It is also practiced by many states. So dili ka ka-ingon nga naay Rule or
Principle prohibiting the exercise of jurisdiction by a state for acts committed outside. Mangita ka dapat og
customary or conventional intl law that prohibits the practice para ka maka ingon nga it shouldnt be
allowed. Nya wala man.

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 39

Public International Law Midterm Notes 201


3
Nya sir, unsa man diay nang principle nga ang flag state mao naay exclusive jurisdiction? Korek na siya!
(siyay ni ask, siya rapod ni tubag. Nice ka sir! Hehe) That is the principle adopted by all states in the
world meaning under the principle of monopoly of power, kita, states, mura bag ni ingon ang PCIJ iconsider ra gud na ang vessel nga state. Okay. I-consider ang vessel as state. Kung State A na siya for
example, diba ang ruling kay State A exercises exclusive jurisdiction over acts committed within its
territory. Ingon ang PCIJ, korek mana! But that doesnt mean that other states cant exercise jurisdiction in
their place over acts committed outside. Kakuha ka class? Klaro mana! (hmmmmmm)
But if we talk of acts committed ON the vessel, aw lahi na siya class. Naa tay gitawag nga Extra-Territorial
Jurisdiction naa sad tay gitawag nga Subjective or Objective Territorial Jurisdiction - where the crime
was committed or where it was started, pwede nang naay jurisdiction. A classic situation: Border sa
States. Unya ang killer (nag dala daw og sniper) naa sa state A. Ang object sa iyang crime tu-a sa State
B. A classic example where State A or B may exercise jurisdiction. Depende na siya sa law sa state
involved. Kung mo ingon ang State A nga even though the effects of the crime naa sa B but the
commencement of the acts naa sa State A and it can exercise jurisdiction then it should be so. Wala may
international law whether conventional or customary that prohibits that. You dont allow the state to
practice that if there is an intl law that prohibits that, unya kay WALA MAN.
SOURCES of PIL:

Treaties - as a rule is a source of PIL insofar as the contracting parties are concerned. Then well
prably say that what if the SUBSTANCE of the treaty/convention partakes also of the nature of
CUSTOMARY Intl Law? Then, NICARAGUA vs US said that even if it had been transformed into
a Treaty Law, that status of it as CUSTOMARY intl law still exists. And in that, as we will study
Phil practice on sources of PIL, SC pronounced in one case that even if the state is non-member
to the convention, it still may be bound by the provision/s of the convention if such provision/s
partakes the nature of a CUSTOMARY Intl Law.

General Principles of Law What is GPL and what does it constitute? Still controversial even
up to this time. Under the ICJ Statute, it was only considered as recognized by the civilized
nations. There was an article talking about whether to treat GPL as NOT a source of PIL but only
when it is applied by the ICJ. Gi tawag na nila og Transmutation. Ni transmute ba ang GPL into
an Internatinal law. So therefore, dili na nimo siya i-treat og Intl law until the ICJ applies it. Unlike
sa Customary intl law nga whether its applied or not, IT EXISTS. And as far as conventions are
concerned, whether the ICJ will apply it or not, that is INTERNATIONAL LAW as far as the
contracting parties are concerned. But when you talk of GPL, those are dormant rules. They are
not actually international law principles but they will be transmuted by the ICJ and when applied
to a particular controversy then they become PIL insofar as that CONTROVERSY is concerned.
(Ingon si sir, iya ra daw nang Opinion. Iya rang interpretation of what GPL is) Honestly, that
makes sense. Why? Usually, awa ha, usually, these GPL are based on LOCAL or DOMESTIC
State practice. Nya if you have read the preparatory works to the drafting of Art 38(1) of the ICJ,
that is a good source for understanding/interpreting provisions of the ICJ Statute and the UN
Charter in general. The Intl law Commission explained the reason for putting the 3 rd source, they
just call it GENERAL PRINCIPLES OF LAW because they knew that there may perhaps be
controversies where there is NO treaty law that may be applicable or NO customary law
applicable. Then they said, wala rabay laing intl tribunal nga i-consult. Karon naa na, at least. We
have ICC (Intl Criminal Court). Ang Rome Statute. Pero mga bag-o pana. Pero at the time the Intl

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 40

Public International Law Midterm Notes 201


3
law commission thought of the sources of PIL, and ICJ lang ang permanent tribunal (exc the Ad
Hoc tribunals) Ingon ang commission, asa man ta mangita og authorities? Kita raman ang ICJ.
Wa gyud tay laing choice. We have to look into laws of domestic origin. So in case wala
conventional or customary law, they may resort to GPL such as ESTOPPEL, GOOD FAITH,
Exhaustion of Local Remedies, Prescription, Equity and Principle that those who come to court
must come with alcohol (haha) clean hands bitaw.
Institutionalized General Principles of Law: Exhuastion of Local Remedies. Applicable na xa
sa Intl Criminal Law. Imong i-prosecute og War Crime ang usa ka General, youre not allowed to
go there right away and invoke the authority of the intl criminal court or ICC. It must be
established that you have exerted efforts and attempted to avail of local remedies in order to
prosecute the general. It is only when all those efforts have failed because probably the domestic
courts are unwilling to prosecute because normally most crimes punished as WAR CRIMES are
state-sponsored or initiated. Nya kana nga general, should a general of a regular armed force.
Tan-awa ang sa Nazi sa Germany and lot more. It is expected that local courts would be unwilling
to prosecute their own generals. And that is where you have the legal standing to go to ICC if you
have exhausted local remedies.
BARCELONA CASE vs SPAIN
The rule here as pronounced by ICJ is that, in the absence of applicable intl law, cognizance
must be given to the relevant institutions of domestic law. Ingon ICJ, murag kita raman usa ani
dah, way lain. Adto tag domestic institution. And this is the reasoning oh, Otherwise the ICJ
would lose touch with reality particularly as there are no responding institutions of intl law in
which the court could make reference. Wa gyud silay kapadulngan. And besides, decisions of
intl tribunals are not necessarily binding on other intl tribunals, wa man ganiy Stare Decisis
sa decisions sa ICJ, how much more decisions sa other intl tribunal? Well, of course, this was
made by the ICJ at that time where there was no other permanent court, now we have ICC. Even
ICC, its not a general court, its a special court for international crimes. So what GPL is applied to
this case? (Oral recitations ensued)
Let us go to reservation and let us be guided by the following questions:
1. What is reservation?
2. How is it distinguished from declaration?
We have a definition of reservation in article 2(1)(d) in the Vienna Convention:
reservation means 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;
L:Usually, when is reservation resorted to by a State?
G: the reservation is usually done by a State before accepting, ratifying and approving the treaty
L:Is it possible to have reservation in a bilateral treaty?
G: It depends on the stipulation in the treaty, because if such reservation would affect the.. (g putol ni sir)
L: do you think it is relevant in a bilateral treaty to have a clause on reservation?
-why is it irrelevant to provide in a bilateral treaty anything that has something to do with reservation?
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 41

Public International Law Midterm Notes 201


3
G: no sir. It will not go with the purpose of having the treaty and such reservation will not be applicable to
the State making the reservation
L: that is the same thing with a multi-lateral treaty, because that is the very nature of reservation, a State
wants to exempt itself from the application of a particular provision. Well, it is not a relevant to talk about
reservation in a bilateral treaty because normally, if it is just bilateral, there are only two parties, the
reservation will only come out as a more of a counter-offer on the part of the reserving State. For that
reason, it is obvious that the other State must accept it or not. So if the other State will accept it, it ceases
to be a reservation because the counter proposal had been accepted. So in the case of a multi-lateral
treaty, that is where you begin to talk with reservation. It is common to see reservation clauses in multilateral treaties. Except that in reality, more than 80%-90%, no State will make a reservation to a particular
multi-lateral treaty
What is declaration?
-Declaration that is more or less relevant to a reservation, because if you did a reservation in your
activity (bla bla)
A reservation may not actually be. what appears to be a reservation may not actually appear as a
reservation but a declaration. And that declaration may not in fact require an approval from the other
States
Usually declaration is done if a State tries to explain its own understanding on a particular provision of a
treaty. It would perhaps simply declare that this provision is understood to us, this is this and this is that,
and therefore, it is up to you WON our understanding is against the very object or purpose of the treaty.
Because if what appears to be a declaration is actually contrary to the object and purpose of the treaty,
then it should be treated as a reservation. In which case, the rules of reservation must be applied. Of
course, it is the nature of a declaration. So if the treaty for example provides that this treaty shall enter
into course by mere ratification, then one state would make a declaration that by ratification we mean that
this is the process of ratification, it can be done that way.
L:So when is reservation allowed and when is it not allowed?
G: GR: reservation is allowed in all treaties
Exc: if it is stipulated in the treaty that reservation is not allowed or a certain provision is not
allowed to be reserved
Can you please answer the 4th question:
L:Can a reserving state be regarded as being a party to the treaty while still maintaining its reservation, if
the reservation is objected to by one or more of the parties to the treaty but not by others?
G: the reserving State can be regarded as a party to the convention if such reservation is compatible with
the purpose of the treaty. However, if it is incompatible to the purpose or the fundamental principles of the
treaty it will not become a party to the convention. But such reservation must be approved by the member
States (advisory opinion concerning reservation to the convention on prevention and punishment of
Genocide)
L: explain why ICJ made a special formula for the Genocide convention and I believe that the formula was
adopted only because it involved a particular convention, the genocide convention. And therefore what
would be the general rule if the convention involved did not or was not about genocide?
G: since the ICJ, laid down the general rule that a reservation can be made by any State but while
maintaining it, it must be concurred by the member States and such (g putol)

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 42

Public International Law Midterm Notes 201


3
L: but what do you think is the rationale behind the requirement of unanimity of the concurrence of
reservation. Why require unanimous concurrence by States?
G: because a State cannot be a member to a treaty if it is not with consent. So a reservation must be
consented by member States so that it can be declared a party or a non-party to the convention
L: and here I think if you read the entire opinion of the ICJ, the ICJ likened the convention to a contract
where consent plays an important role.
So, if we go to the first three questions. You have definition here.
As a general rule, reservation is allowed only when the reservation is accepted by all the States which by
the way, States which had signed, not necessarily ratified. Because ratification comes after the signature.
Ok? Not unless the treaty or convention itself provides for the rule. So you mention about reservation is
not allowed if the treaty does not allow. And where the treaty allows reservation it lists down certain
provision or subject matters that while reservation may be allowed in some provision, they are not allowed
in certain provisions. So it is either absolutely prohibited by the treaty, so there is no reservation possible
there. And if it is allowed, it is the usual practice that the treaty will list down what may not be the subject
of reservation and where it is incompatible of the object and purpose of the treaty
Questions:
Can the reserving State be regarded as being a party to the convention, while still maintaining its
reservation?
L:If reservation is objected to by one or more of the parties to the convention but not by the others and
you said, whats that?
G: it depends, on whether the reservation is compatible or incompatible to the purpose or object of the
treaty?
L: the question here is who determines the compatibility or incompatibility?
A: it is up to the State who will accept or object to which is a criterion WON it is compatible or
incompatible to the subject or purpose of the convention
L: if the answer to the above question is yes, what is the effect of that reservation as between the
reserving state and number one to the parties which object the reservation and second to those who
accepts it? And so we have to ask those who rejected the reservation, WON the reservation is valid or
what? WON. what is the objective of determining whether the reservation is compatible or incompatible
with the purpose or object of the treaty
A: if a reservation is held not to be compatible with the purpose of the treaty, that party who made that
reservation would not be considered a part of the treaty
L: so the issue is not on the validity of the reservation but WON on the part of the party objecting to the
reservation, the reserving State may be considered a party. Because that is the question in number one:
Can the reserving State be regarded as being a party to the convention, while still maintaining its
reservation? Later on, of course I would be asking the question as to the distinction of the party and a
signatory. This of course presupposes that we are to make the State a party not just a signatory to the
convention. Anyway, we would go to that later on. So, the objecting State is given the option to evaluate
whether the reservation is compatible or incompatible with the purpose and object of the treaty. The
objecting State, if it deems it incompatible then the objecting State will treat the reserving State as a nonparty. Correct?. But if the objecting State feels that the reservation is not incompatible, so it is likened to a
declaration for example, then it will treat and consider the reserving State a party to the convention
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 43

Public International Law Midterm Notes 201


3
L: Why such special rule by the way? Whats peculiar about the convention on genocide?
A: the peculiar circumstance that surrounded the making of the convention on genocide justified the rule
that states the State depended on the universal act that wanted genocide to be a crime in the
international law. And so if that if they wanted universal application, it could not have intended that a party
could easily be considered not a party.
L: or excuse itself to be not a party to the convention by the mere expediency of making a reservation that
will defeat the purpose of the convention. So this rule that you have learned applies only to the genocide
convention or a similar convention for that matter. Note that genocide of course is part of jus cogens. So
the idea that it should not be affected by indiscriminate reservations by members State. So it is possible
for an objecting State to really still treat you as a party to the convention or not a party to the convention
as the case may be. K? so this is the rule, because we are dealing here with the genocide convention
So lets take a look at the opinion of ICJ as to question number 1, on account of its abstract character, it
cannot be given an absolute answer. Thats why, it should be flexible because, precisely the intent was to
make the genocide convention applicable universally. Its a case to case basis. So how is this
accomplished?. So this is the rule, the reserving State can be regarded as a party to the convention if the
reservation is compatible with the object and purpose of the convention.
So that, as to question number 2, each State objecting to the reservation will or will not on the basis of its
individual appraisal (not the appraisal or evaluation of all) but as to the objecting state, considered the
reserving State considered to be a party to the convention?
Answer: if the objector deems the reservation as incompatible with the object and purpose of the
convention, it can in fact consider that the reserving state is not a party to the convention
-voting here was not conclusive. So in a moot court, you can have it as a defense.
-no stare decisis in international court
So, we were talking about registration. So just take note of the effect of non-registration. Every treaty
entered into by any member of the UN, so members of the UN, well, most of course are, if not all, are also
parties to the Vienna Convention on the Law of Treaties, shall register to the secretariat the treaty which
the secretariat will publish.
L:So what is the effect of non-registration with the UN?
A: no party to that treaty could invoke it before a body (international courts, like the ICJ)
L: so it has no effect on the validity?
A: it has no effect sir
L: the treaty is still valid, but it cannot be enforced in a way, since you cannot invoke it in any organ of the
United Nations. So if the treaty provides for a different venue where a controversy may be resolved, and
that venue happens to be a non organ of the UN, then article 102 would be irrelevant.
L: Can you answer the first question here? Distinguish a signatory from a party to a treaty. Your
understanding first
A: a signatory signs the treaty but is subject to ratification whereas a party is already bound by the treaties
because it has expressed its consent.
L: do you agree Ms. Seville? Do you think that is the distinction between the two, cant we use it
interchangeably?
A: I agree with Miss Plaza sir.
Entry Into Force
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 44

Public International Law Midterm Notes 201


3
- Treaty enters into force in various ways:
a. mere signature if treaty so provides
b. upon ratification (commonly practice)
- manifested by domestic ratification and the exchange of instruments accompanied later on
by the deposits of the instruments on the designated depositary.
State Signatories and Parties to a Treaty
- state is a signatory but may not necessary be a party
Signatory - if state through its duly authorized representative signs and expresses its consent to be
bound through signature.
Party treaty is already entered into force in sofar as the party is concern, only when the mode of
entering into force have been observe in the form of ratification
Legal Obligations
Signatory
- Even a state is merely a signatory, not yet a party, there are obligations that should still be observe
- Before entry into force a signatory is not bound to a substantive provisions of the treaty...but applying
Art. 18..
Article 18 VCLT
Obligation not to defeat the object and purpose of a treaty prior to its
entry into force
A State is obliged to refrain from acts which would defeat the object and
purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the
treaty subject to ratification, acceptance or approval, until it shall have
made its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the
entry into force of the treaty
and provided that such entry into force is not unduly delayed.
- Most authors perceive this rather as broad or vague declaration because it is hard to determine what
particular act would defeat the object or purpose of the treaty.
Case: Bayan muna vs Executive Secretary (2011)
- After signing a wrong statute the Philippines entered into a unique kind of agreement with US
which by the way later on withdrawn its signature from the wrong statute. The agreement provided for a
special arrangement that any citizens when prosecuted under the ICC statute may be not surrendered
subject to certain conditions for jurisdiction of the ICJ by the party to be agreed. SC also interpreted the
wrong statute and it was found out that it did not violate the provision of Art. 18. It should have been
filed into international tribunal not just locally because nowadays our SC upholds pact sunt servanda.
Party
- It is rather bound to obey and observe the substantive provisions of the treaty because it has already
entered into force.
- Complies the stipulations of the treaty in good faith (Pacta Sunt Servanda)
Withdrawal
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 45

Public International Law Midterm Notes 201


3
Signatory
- No state is compelled to become a party to a treaty so it can withdraw from the treaty anytime and
without any procedure.
Party
- Is now governed by Pacta Sunt Servanda and its effects is that it cannot unilaterally withdraw from the
treaty.
- Pacta Sunt Servanda: promises should be kept
- Terms and conditions of the treaty are may be considered as a law between the contracting parties.
- Allowed to withdraw if other states consent unless treaty so provides for withdrawal and the manner or
procedure on how would it be done
usually it provides notice (12 mos notice in Vienna Convention)
- The concept of rebus sic stantibus (Latin: things standing thus) stipulates that, where there has been
a fundamental change of circumstances, a party may withdraw from or terminate the treaty in question.
Article 61 VCLT
Supervening impossibility of performance
1. 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.
2. Impossibility of performance may not be invoked by a party as a
ground for terminating, withdrawing from or suspending the operation of
a treaty if the impossibility is the result of a breach by that party either of
an obligation under the treaty or of any other international obligation
owed to any other party to the treaty.
Case: Ichong vs Hernandez
Domestic law was upheld over treaty obligation with the qualification that domestic law should
be a character of a police power measure. Police power cannot be bargain by a treaty because we treat
treaty obligations as statutory obligations.
Held- The treaty is always subject to qualification or amendment by a subsequent law, and the same may
never curtail or restrict the scope of the police power of the State.
Domestic law cannot be invoked to excuse or exempt a contracting party from the terms and obligations
of a treaty based on international law. It may be different domestically but since we are studying PIL we
should all be thinking first before we go to Philippine practice that this issue will be resolved at the
international level.
What is constitutional requirement, constitutional provision affecting treaty making? Inherent in the
position of the president that it is executive. It had been affirmed by at least two cases that we will see
later on.
Conditions fundamental concerned the rule of its internal law of fundamental importance. Internal law
based on statute. Domestic law, is it an internal law of fundamental importance?
The Vienna Convention has to state it. It shouldnt say concerning a rule that is of constitutional
something because we do have different legal systems in the world. In the Philippines, we look at the
constitution as supreme. In United Kingdom there is no such thing as treaties constitution so the only way
by which this can be interpreted is to also look at the legal systems in that particular State. In our case, it
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 46

Public International Law Midterm Notes 201


3
is definite that Constitution prevails over all other laws and so probably, I can only say probably because
this is just fiction anyway, a rule that is internal in character of fundamental importance should be a rule
that is of Constitutional origin. But that it is the Secretary of the Department of Foreign Affairs that should
sign etcetera, is that a constitutional concern/requirement? Yes or is that different because it would
tantamount to, is it evident?
Even the definition of executive powers is not found in the Constitution.
If it is a situation where a treaty has not been submitted to the Senate for concurrence, stubbornly by the
President despite plea, despite lobby, despite petition, despite demand, will the Philippines be able to
excuse itself from not complying with the terms of that treaty on the basis that the president is not
submitting the treaty to. If the Senate has not yet concurred with the ratification, may the Philippines still
be bound by the treaty? Is it not an option on the part of the Philippines not to be bound by not ratifying it?
Because in our case, ratification involves two processes: 1. By the President, 2. 2/3 Concurrence by the
Senate
Bayan vs. Executive Secretary in October 10, 2000
Plimental vs. Romulo
-Whether it is compulsory for the president to submit it for ratification. In any case, what probably
confuses us is the probability that ratification may be interpreted differently by our domestic courts so at
least in our case, we say the president cannot be compelled to submit mandamus on the treaty to be
submitted by concurrence in the Senate. It may not be the same principle in other states.
Different effects of treaty once entered into Courts
-Pacta sunt servanda (agreements, promises, commitments must be kept NOT that every treaty enforced
is binding by the parties to it and must be performed by them in good faith. That is just the consequence
of Pacta sunt servanda) Since agreements, commitments, must be kept, it is therefore, as a consequence
of that, required that it must be performed in good faith. What do we mean by performed in good faith?
We cannot of course probably, just design or fabricate a ground just so we can invoke change in
circumstance.
Exceptions:
- jus cogens
- rebus sic stantibus
Article 27
A party cannot invoke a provision in its domestic law to evade compliance
A party to a treaty is bound by the terms and conditions of the treaty and cannot therefore unilaterally
withdraw or exempt itself without complying with the rules on termination of treaties. And one of the
exceptions of course would be rebus sic stantibus in which case a party may not comply with the terms
and conditions.
And you have jus cogens that obligation that is sought to be performed by the state happens to be in
contrary to jus cogens so the state cannot be compelled to violate jus cogens. Obviously, a treaty cannot
give you this third state without the latters express consent. Some of these rules you will notice are rules
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 47

Public International Law Midterm Notes 201


3
that you have learned even in the study of the law on contracts. So we have here, Article 46 as you have
read earlier. We studied Article 7 (on who are the authorized representatives in regard to Article 46) Then
you might perhaps go to Article 29, 35-37, 30 (on the following territorial scope of treaties) It is obvious,
the treaties can be applicable in the territory of the contracting party except to the extent that if you have
read the work of Akeherst, he mentioned about what used to be in the past found in many treaties. Im
referring to colonial clauses. Treaties may or may not be applied to colonies depending on what is found
in the colonial clause but that is already no longer applicable at present because we dont have colonies
anymore. Just in case, you will be asked, what is a colonial clause in relation to the territorial application
of treaties, at least you have something to write. As a rule of course, treaties applying principles in
contracts, cannot bind third states without their consent especially if the treaty would burden the third
state.
Article 2 (6) of the UN Charter and its relevance to third states
The UN Charter in Article 2 (6) provides for some sort of an obligation on the part of non-parties to
treaties. That should be taken as applicable to members of course of the UN but apparently, there is an
obligation still, on the part of third states, in relation to treaties entered into by members of the UN. What
is that obligation? It may be considered general principle of law not to defeat of course the purpose and
object of the treaties. So the principle of neutrality in the part of third states in relation to terms and
conditions of treaties entered into by UN members.
Take note of Article 30 of the UN Charter on this matter.
Study the different grounds that will make the treaty defective. They are just codal law but they happened
to be asked in the bar exam. Maybe its too technical to be asked but just the same. You cannot
underprepare the bar examination. Basically, these are principles also found in contracts. These
conventions are basically contractual.
Go over also the different grounds of termination of treaties. One of which of course is the principle of
Pacta sunt servanda. We mentioned about impossibility of performance in Article 61. Dont forget that it is
confined to the disappearance of the object of the same principle in your obligations and contracts. Loss
of the object would result to the impossibility of performance. Of course, emergence of new jus cogens. If
the stipulation is now in contrary to a new jus cogens, it shouldnt be complied with. Outbreak of war is
relevant only during those times when States entered into bilateral treaties. As mentioned by Akeherst, it
may not anymore be relevant at present because most treaties are multi-lateral. Outbreak of war means
termination of treaties for those parties to the treaties which are also involved in that war. So that is
automatically terminated.
We go to rebus sic stantibus. I believe this is the most relevant. So you know rebus sic stantibus is not
implied but applicable only in the most exceptional circumstances. And if you look at Article 62, it provides
for narrow limits in the areas of the conditions under which it may be invoked. Its highly exceptional. It is
only applicable in most exceptional circumstances such as when the existence of those circumstances
constituted an essential basis of the consent of the parties to be bound by the treaty. The effect of the
change is radically to transform the extent of obligations skipped to be performed under the treaty and the
limitations, basically it came out in one of the bar examinations, is this situation where rebus sic stantibus
is not applicable in so far as treaties that involve boundaries. One relevant case is Hungary-Slovakia
case, 1997. What happened here by the way was the ground invoked not to comply with the treaty
considered a ground for rebus sic stantibus.
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 48

Public International Law Midterm Notes 201


3
Mere change in the social, political and economic system is not a ground for non compliance in the treaty.
Is it because it was not established clearly and convincingly that it prevented the party to comply with the
obligation so the ICJ went on discussing that Rebus Sic Stantibus can only be made applicable in highly
exceptional circumstances and it seems to be that a highly exceptional a circumstance, no? So mere
change in a social system, economic system, political system, legal system will not be considered as a
ground for non-complying with the treaty in the basis of Rebus Sic Stantibus, it is not enough
circumstance for Rebus Sic Stantibus to be applicable.
Distinguished International Law Agreement, Treaty and executive agreement.
Is a treaty an International Agreement or an International Agreement a Treaty?
What agreement on international concern may be nullified by our Supreme Court btw? Definitely the
Supreme Court CANNOT nullify a Treaty because a Treaty is governed by International Law.
Did you think its a, an awkward situation where the Philippines will nullify a treaty when it is to be
governed by International Law? So the Philippines, the Supreme Court is limited to determining whether
or not the Treaty should be complied and if there is a more paramount interest that is involved
domestically we go by the domestic thinking of the Supreme Court, another law may be upheld prevailing
over a Treaty but does it mean that the Treaty is nullified by the Court? The same thing with International
Agreement or Executive Agreement?
Is a Treaty an International Agreement? It is an International Agreement but not all International
Agreements are Treaties. Because we have different provisions. We apply the Vienna Convention on the
Law of Treaties.
What about Executive Agreement, is it a Treaty?
So what makes the Treaty a Treaty? Is when it is concurred in by the Senate? So, if it is an executive
agreement and then ratified by the Pres and concurred in by the Senate, then the Executive Agreement
becomes a Treaty? Because in International Law, all these terms do not matter. Only when if we go by
Exec. Order No. 459 that these terms may matter. And if we go by the requirement of the Senate
concurring in with Treaties and not with any other. So what is in an executive agreement that is peculiar
that is, that makes it different from a treaty btw?
EO459, who shall represent Philippines to the different States in. information? Who decides whether it
is International agreement, treaty or executive agreement? Someone should decide so that at least
Congress, Senate in particular will be compelled to whether or not concurred with it or not after it is
submitted or whether the President in the first place should submit it to Congress. The Department of
Foreign Affairs. So, the characterization, whether it is a treaty, international agreement.. So the moment
when the DFA makes the characterization then that will guide now the President whether to submit it or
not but may the President be compelled to submit a treaty to the. Senate? Its concurrence.
Pimentel vs. Romulo
The signing of the treaty and the ratification are two separate and distinct steps in treaty making process.
The signature is primarily intended as a means of authentication and a symbol of good faith of the parties.
Good faith means that we are willing to be bound by the terms and conditions until of course it does
Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 49

Public International Law Midterm Notes 201


3
settled in court. Ratification on the other hand is a formal act by which the State confirms and accepts
subrogation it is an executive act, undertaken by the head of the State or of the government. So at the
end of the day it is the President that decides whether the Philippines should be bound by the treaty
whether or not the treaty should enter into course, you cannot compel the President to submit it for
concurrence. It is within the authority of the President to refuse to submit a treaty to the Senate, or even if
it had secured its consent for ratification it may even withdraw its ratification, that is domestically, the
President will do that.
What is its effect in international level, thats different, unless its an internal rule of fundamental nature,
then the Philippines cannot excuse itself, from complying with the terms and conditions of the Treaty.
Bayan Vs Executive Secretary 2000 Case
The Visiting Force Agreement.
This one may not necessarily be considered as a treaty? And that if it is ratified there is no great abuse of
discretion? May the Senate be questioned for ratifying what perceived to be an invalid agreement? What
is the rule on treaties that involved military based? Military facilities? Under the Constitution? Is there a
special rule on the way treaties including military bases and facilities? Yes.
And on the part of the other State? What? It should be recognized as? But whether it is recognized to be
a treaty or not should it be a determined on how it went through the process in that other state because
just like in the US even if it didnt have the concurrence of the Senate internationally they are still
considered treaties, correct? And of course in Bayan muna vs Romulo 2011
Its just a reiteration of the rule that concurrence of the Senate is not required in executive
agreements. Usually an executive agreement is entered into as supplementary to already existing
treaties. Treaties are more permanent in character and most at least the way we distinguished one from
the other, in many cases political in character, permanent, institutional, formal. While executive
agreements are not permanent, temporary in character, not institutional, not formal and usually agreed or
entered into by the Philippines and another State as supplementary to existing treaties.

Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza;
Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero
This material is for review purposes only, exlusively for the benefit of:
USC College of Law Second Year AY 2012-2013

Page 50