SIL nations, as subsidiary means for the
determination of rules of law.
I. General
1. Who invented the word international law?
Jeremy Bentham
2. What is international law?
 It governs the relationship between and
among states and also their relations
with international organizations and
individual persons.
 It is a system of laws, effective,
governing interstate relations.
 It provides a normative framework for
the conduct of interstate relations.
3. Is international law necessary?
Yes. There are things which manifestly need
to be done which can be done only by
collective action. International law provides
a set of techniques for addressing huge
collective action problems.
4. Who is the father of IL?
Hugo Grotius
II. Sources of IL
1. Differentiate between formal and material
sources.
Formal sources are methods for creation of
rules of general applications which are
legally binding. Material sources provide
evidence of the existence of rules which are
binding and of general application when
established.
2. What are the sources of IL?
According to Article 38 of the ICJ Statute:
“1. The Court, whose function is to decide in
accordance with international law such
disputes as are submitted to it, shall apply:
a) International conventions, whether
general or particular, establishing rules
expressly recognized by the contesting
states;
b) International custom, as evidence of a
general practice accepted as law;
c) the general principles of law recognized
by civilized nations;
d) subject to the provisions of Article 59,
judicial decisions and the teachings of the
most highly qualified publicists of the various
Notes from the book of Prof. Ian Brownlie (Jj)
2. This provision shall not prejudice the
power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.”
3. Is there a hierarchy of sources under Article
38?
No. There is no express hierarchy of
sources, but the drafters stipulated an order.
4. Are all the sources listed under Article 38 of
the ICJ Statute binding upon a State?
No. Article 59 provides that decisions have
no binding force except between parties in a
particular case.
5. What is custom?
It is a rule 1) evinced by the consistency and
generality of state practice and 2) accepted
as law or opinion juris sive necessitas.
6. Elements of custom.
 State practice
 Opinio juris
7. Differentiate custom and usage.
Usage is a general practice which does not
reflect a legal obligation. Custom is a
practice which reflects a legal obligation.
8. What are examples of material sources
(state practice) of custom?
 Diplomatic correspondence
 Policy statements
 Press releases
 Opinions of government legal advisers
 Official manuals on legal questions
 Executive decisions and practices
 Orders to military forces
 Comments by governments on ILC
drafts
 Legislation
 International and national judicial
decisions
 Recitals in treaties and other
instruments
 Extensive pattern of treaties
 Practice of international organs
 UN general assembly resolutions
9. What are examples of sources from which
opinio juris may be inferred?
 General practice
 Scholarly consensus
  Decisions of international courts and
tribunals
10. Is complete uniformity required in state
practice?
No. Only substantial uniformity is required.
11. Is duration required in state practice?
No. The formation of customary rule
requires no particular duration. Examples
are the rules relating to airspace and
continental shelf.
12. What is regional or local custom?
It is a customary norm practiced only within
a particular region and is reducible to the
level of a bilateral relation.
13. What is a persistent objector?
A State which exempts itself from the
application of a new customary rule by
persistent objection during the norm’s
formation.
14. What is subsequent objection?
A substantial group of states asserting a
new rule, of increased defection,
complemented by acquiescence, may result
in a new rule.
15. Are there customary norms that even
persistent objectors have to comply with?
Yes. These are jus cogens or peremptory
norms of international law from which no
derogation is allowed.
16. What is treaty?
Treaties are the most important source of
obligation in international law. Law-making
treaties create legal obligations to govern
the conduct of parties. Bilateral treaties may
provide evidence of customary rules.
17. May non-parties to a treaty be bound by a
treaty?
Yes. This is when non-parties accept the
provisions by their conduct as representing
custom, or an unratified treaty is regarded
as evidence of custom.
18. What is the Baxter paradox?
Treaties declaratory or constitutive of
custom may arrest its development, and
until the treaty is revised or amended the
custom will remain the image of the treaty.
Notes from the book of Prof. Ian Brownlie (Jj)
19. May custom change the obligations in a
treaty?
Yes. Customary law may be called on to
mold and even modify treaty texts which
cannot realistically be amended. An
example is the requirement of necessity and
proportionality in Article 51 of the UN
Charter on self-defense.
20. Examples of GAPIL?
 Estoppel
 Acquiescence
 Litispendence
 Res iudicata
 Circumstantial evidence
21. Differentiate general principles of law and
general principles of international law.
General principles of law are rules accepted
in the domestic law of civilized states.
General principles of international law
alternately refer to rules of custom, general
principles of law, or certain logical
propositions underlying judicial reasoning
based on existing international law.
22. Does the principle of stare decisis or doctrine
of precedent apply before the ICJ?
No. There is no doctrine of precedent
observed, except on procedure. However, it
strives to maintain judicial consistency.
23. What is the most important requirement to
be a publicist?
The work must be internationally published.
24. Are equity infra legem and ex aequeo et bono
the same?
No. Equity ex aequo et bono involves
elements of compromise and conciliation.
Equity in a general sense finds application
as part of normal judicial function and refers
to considerations of fairness and
reasonableness in decision-making.
III. IL and National Law
1. Differentiate monism and dualism.
Dualism emphasizes the distinct and
independent character of the international
and national legal orders, and that municipal
law governs relation between individual and
the state, while international law regulates
relations between states. Monism postulates
that national and international law form one
 single order or at least a number of
interlocking orders which should be
presumed to be coherent and consistent,
and either of which prevails in two theories.
2. Can a State use its domestic law to
derogate from international law?
No. A state cannot plead provisions of its
own law in answer to a claim against it for
breach of international obligations. There is
a duty to bring national law into conformity
with obligations under international law.
3. What is the status of national law in
international tribunals?
National laws are merely facts which
express the will and constitute activities of
States. Its distinct aspects are that it: is
evidence of conduct in violation, may be part
of applicable law in a claim, is required to be
proven before tribunals, is interpreted by
each state and not tribunals, is not to be
declared unconstitutional or invalid by
tribunals, and it is to be applied as such
when applied in tribunals.
4. What is an umbrella clause?
It is a clause contained in an investment
treaty which may also be breached when
there is a breach of a contract between an
investor and host state.
5. Is there res judicata in international courts?
There is no effect of res judicata from the
decision of a national court so far as an
international jurisdiction is concerned.
Moreover, a decision of the International
Court, does not of itself create res judicata.
However, it does not follow that a national
court should not recognize the validity of the
judgment of an international tribunal for
manifest competence and authority.
6. Differentiate incorporation and
transformation.
Incorporation refers to the common law
approach under which customary rules are
to be considered part of the law of the land.
Transformation refers to the approach under
which custom will only become part of the
law of the land once codified in statute or in
prior authoritative judicial decision.
7. What is judicial restraint?
Courts do not adjudicate on matters of
international law arising in disputes between
Notes from the book of Prof. Ian Brownlie (Jj)
foreign states. It is a discretionary principle,
but if applied, it is a substantive bar to
adjudication.
8. What is act of state?
It refers to the non-justiciability in a national
court of the acts of a foreign state within its
own territory or outside. Every sovereign
state is bound to respect the independence
of every other sovereign state, and the
courts will not sit in judgment of another
government's acts done within its own
territory.
9. What are the exceptions to act of state
doctrine?
 Where a court can look to a treaty or
other unambiguous instrument regarding
controlling legal principles
 When the State Department guides the
courts as to the applicability of the act of
state doctrine
 Where the act of state complained of is
commercial rather than official
 For the enforcement of arbitration
agreements
 Where there are claims concerning
allleged expropriations in violation of
international law
 Where there are civil suits against
individuals who, acting in an official
capacity for a foreign nation, have
committed torture or extrajudicial killing
10. What are the elements for the Alien Tort
Statute to apply?
 Plaintiff is an alien
 Defendant is responsible for a tort
 Tort in question violates international
law, including customary international
law
11. Differentiate acts jure gestionis and acts jure
imperiia.
Acts jure gestionis are private or commercial
acts of the government of a state. Acts jure
imperiia are public or governmental acts of a
state
IV. Statehood
1. What is a State?
 Political entities equal in law, similar in
form, and the direct subjects of
international law.
  It is the basic unit under international
law.
 It is a type of legal person recognized by
international law.
 It is a stable political community
supporting a legal order to the exclusion
of others in a given area.
2. What are the criteria for statehood?
According to Article 1 of the Montevideo
Convention: “The State as a person of
international law should possess the
following qualifications:
a) Permanent population
b) Defined territory
c) Government
d) Capacity to enter into relations with
other States”
3. What is population?
It connotes a stable community.
4. Is existence of fully defined frontiers
required in territory?
No. It is the effective establishment of a
political community that matters.
5. Is effective government required?
No. There are cases when it is unnecessary
or insufficient to support statehood.
However, it is the best evidence of a stable
political community.
6. What is independence?
It is the capacity to enter into relations with
other states, and the decisive criterion on
statehood.
7. What is a dependent State?
It is a State of which the foreign control of its
affairs may occur under international law. It
indicates: subordination to another state,
concession of jurisdiction or administration
to another state, conferral of agency and
representation in foreign affairs to another
state, suffering interference from another
state as a politically client-state, or
appearing on the international place for
certain purposes only as a special type of
legal person.
8. What is a state in statu nascendi?
These are transitional states. It is a political
community with considerable viability of
becoming a state. They are undergoing a
Notes from the book of Prof. Ian Brownlie (Jj)
period of travail before achieving the
objective of being a state.
9. What is self-determination?
It is a principle concerned with the right to
be a state. It may be achieved through
formation of a new state by: secession,
association in a federal state, or autonomy
or assimilation in a unitary state.
10. What is state succession?
It arises when one international personality
takes the place of another. If there is a
continuity, the legal personality and
particular rights and duties of the state
remain unaltered.
11. What is recognition?
It refers to the act of state on recognition of
another entity as a state, or recognition of
another entity’s government as established,
lawful or legitimate. Its function is the
determination of statehood and the condition
for establishment of formal relations.
12. Differentiate declaratory and constitutive
theory of recognition.
Declaratory theory refers to recognition
merely as a declaration or acknowledgment
of an existing state of law and fact, legal
personality having been conferred
previously by operation of law. Constitutive
theory refers to recognition as the
precondition of the existence of legal rights,
or in its extreme, the personality of a state
depends on the political decision of other
states.
13. What is collective recognition?
It takes the form of joint declaration, or an
invitation to become a party to a multilateral
treaty of a political character. Statehood
matures through membership of the UN, or
at least a call by the UN that the new state
be recognized. However, under the UN
Charter, statehood is a criterion for
membership, not a consequence.
14. Is there a duty to recognize?
No. Recognition, as a public act of state, is
an optional and political act. State parties
are not bound to recognize other states, but
bound under the International Law or
international obligations to respect the
state's rights.
15. What amounts to implied recognition?
 Conclusion of bilateral treaty
 Formal initiation of diplomatic relations
 Issue of consular exequaturs
16. Differentiate de iure and de facto
recognition.
De facto recognition of a government may
involve a reluctant or cautious acceptance of
an effective government, lawfully
established in terms of international law and
not imposed from without, or an
unwarranted acceptance of an unqualified
agency. De facto recognition can be
withdrawn, but de jure recognition is
irrevocable.
17. What is the Estrada doctrine?
It refers to the automatic recognition of de
facto governments. This is important when
there is an unconstitutional change of
regime in a recognized State wherein other
States must necessarily consider the
dealings with the new regime.
18. What is collective non-recognition?
It is the duty not to recognize the illegal
acquisition of territory, or breach of an
obligation arising from peremptory norm of
international law, confirmed as customary
international law.
19. What is the Namibia exception?
The duty of non-recognition is not absolute.
The invalidity of an act cannot extend to
those acts the effects of ignoring them is
detrimental to the inhabitants, such
registration of births, death, and marriages.
20. What are the four types of territorial regime?
 Territorial sovereignty
 Territory not subject to the sovereignty
of any state or states which possesses
a status of its own (e.g., trust territory)
 Res nullius
 Res communis
21. What is a condominium?
It is an area of territory under the
sovereignty of several states, or states with
other territory subject to their exclusive
sovereignty.
22. What is the competence of states over
territory?
Notes from the book of Prof. Ian Brownlie (Jj)
It is described by sovereignty and
jurisdiction.
23. Distinguish imperium and dominium.
Imperium is the general power of
government, administration, and disposition.
Dominium is the form of public ownership of
property within the state.
24. Differentiate sovereignty and sovereign
rights.
Sovereignty is the legal personality
accompanied by independence of a state.
Sovereign right is the indefeasible right in
the patrimony of a state over resources.
25. What is residual sovereignty?
The occupation of foreign territory in time of
peace may occur on the basis of treaty with
the territorial sovereign.
26. What is the principle of appurtenance?
The territory of a state by legal implication
includes territorial sea, and airspace above
land territory and territorial sea.
27. What is title?
The validity of claims to territorial
sovereignty against other states.
28. What is the thalweg principle?
The middle of the principal channel of
navigation is accepted as the boundary in
case of a navigable river.
29. What is nemo dat quod non habet?
A state could not transfer more rights than
what it possesses.
30. What is intertemporal law?
A situation should be appraised and rules of
international law should be interpreted as
they existed at that time, not at the time that
exists today.
31. What is terra nullius?
It is land not under the sovereignty or
authority of any state.
32. What are the five modes of acquisition of
territory?
 Occupation
 Accretion
 Cession
 Conquest
 Prescription

33. What is original and historic title?
It informs the principle of immemorial
possession and reliance upon evidence of
general repute or opinion as to matters of
historical fact.
34. What is effective occupation?
It is possession with the intention and will to
act as sovereign, and some actual exercise
or display of such authority.
35. What is cession?
It is a right to territory conferred by treaty,
provided the transferee takes in accordance
with the treaty. No actual transfer is
required.
36. What is prescription?
It is the removal of defects in a putative title
arising from usurpation of another’s
sovereignty by the acquiescence of the
former sovereign. Possession must be
exercised a titre de souverain, must persist,
and be public, peaceful and uninterrupted.
37. Distinguish abandonment and
relinquishment.
Abandonment is the surrender of title,
converting the territory to res nullius, before
another state establishes its own title by way
of lawful allocation or effective occupation.
Relinquishment is the giving up of claim to
territory in face of an acknowledged better
claim, or at least a subsisting one.
38. What is an epitaph?
It is the historical consolidation of title or the
acquisition of title on the basis of use
without challenge over a significant period of
time.
39. What is the principle of continguity?
State activity is exercised on every part of
territory. This comes to the fore when the
disputed territory is uninhabited, barren, or
unchartered. There is a presumption of
peripheral possession based on state
activity.
40. What is uti possidentis?
States emerging from the dissolution of a
larger entity inherit as their borders those
administrative boundaries which were in
place at the time of independence.
Notes from the book of Prof. Ian Brownlie (Jj)
41. What is accretion?
It is the process of increase of territory
through new geological formations.
42. What is the effect of avulsion on
boundaries?
Sudden, forcible, and significant changes in
river courses will not be considered to have
changed the frontier line. The boundary will
be fixed along the route of the former river
bed, following not the river but the land
underneath.
43. What is the sector principle?
It establishes the limits of territorial
sovereignty by means of straight lines. In
the polar region, lines of longitude
converging in the pole is used to produce a
sector of sovereignty.
44. What is the basic constitutional doctrine of
IL?
The sovereignty of states.
45. What is sovereignty?
The collection of rights held by a state 1) in
its capacity as the entity entitled to exercise
control over its territory and 2) in its capacity
to act on international plane, representing its
territory and its people.
46. What are the corollaries of sovereignty?
 Jurisdiction, prima facie exclusive, over
territory and a permanent population
 Duty of nonintervention in the area of
exclusive jurisdiction of other states
 Ultimate dependence upon consent of
obligations arising from customary law
or treaties.
47. What is par in parem non habet imperium?
It refers to the equality of states, or equality
between sovereigns.
48. What is pacta sunt servanda?
It refers to the notion that states must
comply with their obligations in good faith.
49. What is the doctrine of auto-limitation?
States limit sovereignty by way of treaty.
Any state may, by its consent, express or
implied, submit to a restriction of its
sovereign rights.
V. Jurisdiction

1. What is jurisdiction?
It is the state’s competence under
international law to regulate the conduct of
natural and juridical persons.
2. Distinguish prescriptive and adjudicative
jurisdiction?
Prescriptive jurisdiction is the power to make
laws, decisions or rules. Adjudicative or
enforcement jurisdiction is the power to take
executive or judicial action in pursuance of
or consequent on the making of decisions or
rules.
3. What is the presumption in jurisdiction?
The presumption is that jurisdiction is
territorial and may not be exercised extra-
territorially without some specific basis in
international law.
4. Kinds of prescriptive jurisdiction?
 Territorial principle
 Nationality principle
 Passive personality principle
 Protective/security principle
 Effects doctrine
5. What is the territorial principle?
The courts of the place where the crime is
committed may exercise jurisdiction.
6. What is the nationality principle?
Jurisdiction is exercised over nationals,
reliance on the residence, and other
connections as evidence of allegiance.
7. What is the passive personality principle?
Aliens may be punished for acts abroad
harmful to nationals of the forum.
8. What is the protective or security principle?
Jurisdiction is exercised over aliens for acts
done abroad which affect the internal or
external security or other key interests of the
state.
9. What is the effects doctrine?
Jurisdiction wherein an extraterritorial
offence causes some harmful effect in the
prescribing state without actually meeting
the criteria of territorial jurisdiction or
representing an interest sufficiently vital to
the internal or external security of the state.
10. Who has jurisdiction over ships and aircraft?
Notes from the book of Prof. Ian Brownlie (Jj)
The flag state has regulatory responsibility
for and jurisdiction over the ship. The state
of registration of the aircraft is competent to
exercise jurisdiction over offences and acts
committed abroad.
11. When is a port state jurisdiction exercised?
 The act in question disturbs the peace
and good order of the port
 Assistance is required by the captain or
a representative of the flag state of the
ship
 A non-crew member is involved
12. What is O’Keefe’s definition of universal
jurisdiction?
Universal jurisdiction can be defined as
prescriptive jurisdiction over offenses
committed abroad by persons who, at the
time of commission, are non-resident aliens,
where such offenses are not deemed to
constitute threats to the fundamental
interests of the prescribing state or in
appropriate cases, to give rise to effects
within its territory.
13. What are the crimes covered under
universal jurisdiction?
 Piracy
 Slavery
 Genocide
 Crimes against humanity
 Breach of the Geneva Conventions of
1949 and Torture
14. What is the obligation aut dedere aut
iudicare?
It is the obligation either to extradite or to
prosecute. This is applied when a fugitive
arrives on a territory of state and there
remains to enjoy the fruits of iniquity
offensive.
15. What is the rule ne bis in idem?
It precludes extradition of persons already
tried for the same offence.
16. What is comity?
It is the recognition which one nation allows
within its territory to the legislative, executive
or judicial acts of another nation.
VI. State Responsibility
1. What does the law of responsibility compensation, if any, as its own
comprise? nationals (the plea of diligentia quam in
 Breach of an obligation of the state by a suis).
person or body whose conduct is in
circumstances 6. What is complicity?
 Conduct is attributable to the state It refers to aid or assistance furnished by
one State for the commission of a wrongful
2. What does the law of responsibility comprise act by another State.
of?
 ARSIWA 7. What are the circumstances precluding
 Articles on Diplomatic Protection wrongfulness?
 Draft Articles on Responsibility of  valid consent
International Organizations  self-defense
 countermeasures
3. What are the modes of attribution?  force majeure
 Acts of state organs  distress
 Acts of parastatal entities  state of necessity
 Act is approved or adopted by the state
8. What are the forms of reparation?
4. Are states responsible for ultra vires acts of  Restitution - back to status quo ante; to
officials? restore;
Ultra vires doctrine is not applicable to  Compensation - payment of damages
escape responsibility. (monetary);
 Satisfaction - intangible consequnces
5. What are McNair’s principles of such as apology or recognition (other
responsibility? modes deemed proper by the injured
 A State on whose territory an state)
insurrection occurs is not responsible for
loss or damage sustained by a foreigner 9. What is countermeasure?
unless it can be shown that the It is the possibility for a state to resort to
Government of that State was negligent private justice when its demands for
in the use of, or in the failure to use, the cessation of an illegal conduct or adequate
forces at its disposal for the prevention reparation are not met. However, it must be
or suppression of the insurrection; proportional.
 This is a variable test, dependent on the
circumstances of the insurrection;
 Such a State is not responsible for the
damage resulting from military
operations directed by its lawful
government unless the damage was
wanton or unnecessary, which appears
to be substantially the same as the
position of belligerent States in an
international war; 4 and 5 are generally
accepted
 Such a State is not responsible for loss
or damage caused by the insurgents to
a foreigner after that foreigner's State
has recognized the belligerency of the
Insurgents; and
 Such a State can usually defeat a claim
in respect of loss or damage sustained
by resident foreigners by showing that
they have received the same treatment
in the matter of protection or

Notes from the book of Prof. Ian Brownlie (Jj)