PIL Transcript

PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH.
403 2015-2016
|Selfless Notes|
Alegre.Barcenas.Cabahug.Calumba.Canda.DelaPena.Honoridez.Regalado.Tunacao.Yongco
In the field of law, the course should start with a discussion

on the nature of the subject. It is public international law so
we begin with the nature and meaning of public international
law. This is different from the way we study our domestic
laws.
command. That is what Akehurst mentioned in his book. This

is based more on consensus agreed upon by states rather
than imposed upon states.
So what characterizes it? What problems would it
bring?
C: Being horizontal, it means that it operates with the states
agreeing among themselves of the law to come up with,
there might be a problem with the process.
We begin with the question, you must have encountered in

your readings that public international law is actually
described as a kind of legal system that is horizontal rather
than vertical so we start with that. If you analyze our national
legal system we described it as vertical in character while PIL
is a horizontal legal system.
The process with coming up.. So what you are telling

us is even in the formation of international law, it is
problematic. Why would it be problematic? The
formation of international law?
C: it is because the states are forced, they constantly pursue
their own interest so it could be that if the law operates
against them or if it is disadvantageous they may not
concede to it.
Why is it considered as a horizontal legal system? Why

is it Horizontal in character, what makes it such?
C: unlike the vertical legal system, it is agreed upon by the
state so it is not imposed by a higher authority.
So theres no higher political authority imposing PIL?
C: Yes.
Rules that have not been agreed upon do not form

part of PIL?
C: not necessarily sir.
Dont we have for example the UN? Does it not serve

as the higher political authority?
C: No. It is an international organisation that is composed of
different states wherein they come up with convention and
agreements to implement and enforce rules and procedures
to govern the relationship of the states. But it doesnt serve
as higher authority, it is merely an organization that
comprise of the states that agree with each other.
So PIL is not really just based on agreement?

Yes.
Definitely of course if it is based on agreement, it is easy to
spot the problem we will encounter there. Precisely if it is
based on agreement there is disagreement then that is the
problem.
If PIL is a horizontal legal system, what characterises

a horizontal legal system?
It is horizontal because unlike the command theory of John
Austin for example, we learned in Philo of law, unlike in a
positivist perspective wherein the law is imposed by a higher
sovereign, PIL is more on consensus based rather than
But what about the formation of international law that

is not based on convention, are there in the first place
laws not based on convention?
C: Yes, customary international law.
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PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH. 403 2015-2016

|Selfless Notes|
If you know, how is customary international law formed since

you already introduced one problem in international law, but
you opened up the issue on the problem of formation
because I confirm that through even in the formation of
international law it is also problematic unlike in our national
legal system there wouldnt be a problem especially in a
representative democracy or government where of course
the governed will simply be asked to obey laws passed by the
representatives. In the case of states trying to come up with
an international rule, the problem if it is based on convention
would be precisely the disagreement between states. But
in so far as Customary International Law is concerned which
is not based on convention generally, still theres a problem
with CIL.
course, when we reach that chapter we will learn how to

determine whether these elements are complied with. But of
course I confirm that even in the formation of CIL is really
problematic.
What do you think is the problem with the formation

of CIL?
C: I think it would be the substance or the law itself as well
as
I said enforcement of International law, not compliance.

Because what you are trying to tell us is: Sir theres a
problem as well on whether states do obey international
law, that probably would be my next question but I went
directly to the problem of enforcement.
Not only in the formation of International law, even in the

enforcement of international law.
Can you explain that? Why would there be problems
with international law?
C: Because sir, a state has its own authority like or what we
call individual sovereignty. A state may say that this law, that
we will not adhere to this customary international law, so we
choose to deviate from all other nations.
Hold on, wala pa ta sources.

What it means is, for ex. Theres a judgment of an
international tribunal like in the Case of Nicaragua vs the US.
Nicaragua claimed around what? 70 or 17 Billion even up to
the present although sometime in 1991 you know of course
Nicaragua was awarded in the Nicaragua vs US case, but
dont you know that even up to the present the judgment has
not yet been satisfied. Of course there is this contention on
the part of the US that it has not been enforced since in 1991
the administration of Nicaragua apparently waived the claim
even if Nicaragua had been favourably awarded. So truly
there is a problem of enforcement. So its still problem
but Im not talking about the problem where states may not
actually obey international law, thats another story.
Assuming states believe that international law and when one
violates international law then there is liability or
When we study the sources of international law we will learn

that one of the elements of CIL is a uniform and consistent
state practice and basically because we require some sort of
generality of state practice where state practice is not
consistent or generally in regard to a particular norm then
that norm can hardly become customary international law,
the other problem of course is that this norm is consistently
uniformly practiced by states with the belief that the norm is
legally binding, we call it the opinion juris requirement and
that itself is problematic because its a mental element.
How to tell whether the observant of this particular norm or
just for reasons of convenience but states do believe that the
norm is really legally binding norm, it is difficult. But of
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|Selfless Notes|
responsibility. The problem is how to enforce liability and

responsibility?
C: I think it confers authority upon the state that has received

the favourable judgment.
Do you know why theres a problem in the

enforcement of international law?
C: I think its because of the independence of the state itself
Sir that you cant just interfere with their rights.
Yeah but what if the judgment is to pay compensation

of 100 billion US dollars, in favour of state A and
against state B. How will State A collect?
C: By reprisals..
Yeah but its in the same way that each one of us is

supposedly autonomous. I mean, us individuals yet we
are compelled somehow by rules in our legal system.
Why dont we apply the same in our international law?
C: I dont think it operates like that in International law sir.
Because for the reason that the states have their own
sovereignty..
Unlike in our regular courts that you have a sheriff okay,

where the sheriff can go to the bank and then garnish the
account of a judgment creditor. But in the case of the ICJ
what I was trying to talk about is at the international level we
dont have actually:
1. an international court the world court.
the ICJ is not akin to a court.
This is for example, Im thinking about a situation where

there is a favourable judgment by the International court of
justice. Is it not the ICJ may not be able to actually enforce its
own judgment unlike in the case of our regular courts where
it can issue writs of execution, non compliance also would
amount to aground for contempt and if we are talking about
crim law then the individual may be sent to jail by force. But
that is not or that cannot be done in international law.
Do you know why? What is it with the ICJ that we cant

liken it to a local court?
Theres a problem with jurisdiction because the ICJ unlike in
our domestic courts its jurisdiction is based on
consent.
That is one of the problem areas when it comes to peaceful
settlement of disputes through the ICJ because the ICJ can
only do so much because of the requirement of consent. If
one state refuses to submit itself to the jurisdiction of the ICJ,
the ICJ cannot compel that state precisely as you have
mentioned earlier we have the concept of sovereignty and
the very concept of sovereignty, the authority of the state
must not be subordinated by any higher authority that is the
basic essence of sovereignty.
So whats the problem with the ICJ for example?

C: I think sir the way they implement the judgment it is
regulated. I mean it has..
So theres a way that the ICJ will implement their
decision?
C: By imposing sanctions.
If you have a situation where, a court or a tribunal can

compel or precisely compel a state that itd be subjected to
its jurisdiction then that diminishes the concept of
sovereignty. So that is basically naturally in PIL that almost
The ICJ will impose sanctions? Unlike the case of the

court but the ICJ, can it impose sanctions? If it can,
how is this possible?
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|Selfless Notes|
everything is always based on consent. So jurisdiction of the

ICJ is based on consent.
Lets say bilateral treaty, these states signing now the statute
of the ICJ suits itself to the jurisdiction of the ICJ and of course
such submission to the jurisdiction of the ICJ should not be
treated as a diminution of sovereignty precisely because of
what you learned in your Consti 1: the doctrine of self
auto-limitation.
But do you know that the ICJ while largely based on

consent, there is also what we call the compulsory
jurisdiction of the ICJ? Yes? Have you encountered that
in your reading?
C: Yes.
Which states that you cannot actually diminish sovereignty

because sovereignty by its very essence can never be
diminished otherwise it is not sovereignty at all, but what can
be diminished is exercise of that sovereignty.
In the case of Nicaragua vs US, the very first paragraphs of

the case, dealt with the issue of jurisdiction because the US
in the first phase of the case questioned the jurisdiction of
the ICJ then the ICJ said:
Well this is covered by the compulsory jurisdiction of the
ICJ .
ex. So if a state entered into a treaty or convention and

makes a commitment to perform a particular act and such
performance of an act in a way limits the exercise of
sovereignty, According to the doctrine of self auto-limitation
that imposition of its own limitation in the exercise of its own
sovereignty itself is a manifestation of its sovereignty.
And then eventually when the US, lost in the jurisdictional

phase, it announced its unwillingness to participate in the
proceeding, and that is what China is trying to copy in this
case between the Phil.
Well of course there is this idea of compulsory jurisdiction of
the ICJ but do not confuse this with the general conception
that the jurisdiction of the ICJ is still based on consent
because the compulsory jurisdiction of the ICJ is still based
on consent.
By the very fact that a state enters into a treaty and

imposes upon itself voluntarily certain limitations to the
exercise of its own sovereignty, the doctrine of self autolimitation is by itself a manifestation of such sovereignty
because if dili pa siya sovereign then that state will not
be able to even limit itself.
How does this operate?

When states signed the UN charter and within the statute of
the ICJ, states were asked whether they are willing to submit
to the jurisdiction of the ICJ in certain controversies in
advance. So it did happen in the past that some states did
signed the statues of the ICJ and declared that whenever
there is a controversy arising out of a particular subject
matter.
**Does it make sense? Even that concept of compulsory

jurisdiction of the ICJ that is still based on consent, advance
lang. Take note of that because if your examiner is a
professor of PIL that can be a very good question in the bar.
Explain the compulsory jurisdiction of the ICJ, does it
diminish the states sovereignty?
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|Selfless Notes|
So you can say that the jurisdiction of the ICJ is problematic

and the other of course problem that we encounter in
international law is the enforcement of international law. The
answer? Not only do we lack a world court we also dont have
international police. Much less international tanods, wala na.
affirmative action on the part of the Security council. That is

a single veto of the security council it has to be unanimous.
Same thing with what happened to Syria.
When news erupted that somehow the government of Syria
used some sort of biological weapons even against its own
citizen violating therefore human rights law the US wanted
to take action, it asked the security council to authorise the
US because actually you can use that. Its either you ask the
security council to take military action by the security
account or you can ask for authorisation. You can tell the
Security council:
But diba Sir there is a security council? can we not

liken it to an international police?
Have you not observed it in the news that if a state
misbehaves, more often than not the Security council will
have to send troops prevent any atrocities committed by a
misbehaving state like Syria for example.
So, why cant we liken the Security council to an
international police whats wrong with the security
council?
1. legally and politically limited.
dont worry you dont need to deploy your UN troops, your

blue beret troops. We can do it on our own, just authorise us
The use of force will be justifiable, of course that was not an
option because Syria was a good ally of Russia and Russia
will never give its vote in favour of such military account by
the US since Syria is an ally because of oil, as a main supplier
of Russia. So politics really is working there.
Why politically limited?

Of course political reality whether you like it or not theres
world politics. Its a fact.
Ex. Remember what happened to Ukraine, involving Crimea
and in relation to Russia. So Russian military forces invaded
and occupied Crimea which is a part of Ukraine, the US
resisted that because thats what the US will do almost
always. Youre big brother image, it wanted to of course ask
for the consent/authorisation of the security council to use
force against Russia. But of course it did not even bother
because the security council consist of 5 permanent
members and one of the permanent members is no less than
Russia.
We dont have an international police precisely

because of the what you call legal and political
problems surrounding the institution of the security
council.
Why is that important?

It is important because a singular veto by one of the 5 will
not result to a positive action or will not authorise or
Well thats one of the areas of public international law.

Unilateral use of force or military intervention when is it
really justifiable. You get to understand this later when we
A: What about the case of Afghanistan? Did the

Security council authorise the deployment of US
troops?
Yes of course. So its either the security council itself. .. which
part of the history of Afghanistan were you talking about?

|Selfless Notes|
talk about the use of force discussed in Nicaragua.
Why? Are you looking at states with some sort of

altruistic feelings? They want peace in this world?
P: I think sir, the outlook of these sovereign states is to
lessen any problems to encounter with other sovereign states
so they conform to more or less so that it would discourage
problems to be encountered.
Problem with the formation of international law:

1. So theres: enforcement you have the problem of
formation because one if it is conventional law,
disagreement,
2. If it is CIL the problem of consistency, uniformity,
generality.
3. The problem of identifying exactly opinion juris
element is complied with because it is a mental
element. Whether or not in fact states observe a
particular norm because of the belief that it is
legally binding.
Can you contextualize that? So for example why

should state A obey a particular international norm?
Because it wants peace and order?
P: Yes Sir.
So youre looking at the state as something that
transcends self interest that it would really want
lasting peace in the world? If ingana palang class then
world peace, thats what we mean. Its like a question in a
beauty pageant. But it may be true, of course, the good thing
about international law is very few rules are fixed and even if
they are fixed somehow they evolve, they develop. Then
probably yes. But to be realistic about it, most states are
interested in their own interest than the interest of
the entire community. That explains why we have the
problem on climate change. Because if we are responsible
and all we want is to save mother earth, then there would be
no climate change. But the thing is that all of our activities
are geared towards promoting our own self interest.
Development for example s a major concern of every state.
Not only in the formation are there problems but also in the
enforcement of international law, we dont have a world
court, you have the ICJ but its jurisdiction is largely based on
consent. If ever parties have submitted themselves to its
jurisdiction any judgment can hardly be enforced because we
dont have an international police. We have the security
council yes but there are problems in the institution itself
both political and legal. Veto rule for example is a
problematic institution in the security council.
Even if theres a problem in the formation of International law
and the problem of enforcing international law, we ask the
question is it not the fact that despite these observed
problems states do obey PIL. And so we ask the question:
The preservation of the environment is a secondary interest.

That would take a lot of altruistic feelings from the state.
Thats difficult because you cant even expect altruism from
individuals states pa. How many of us are selfless? Its human
nature to be selfish. not less you become a buddha under
buddhism, the enlightened one, kana pwede.
Why do states obey international law?

P: although there are problems with international law the
states would prefer to abide by the laws to have unity or
place within the community of states.
The other reason perceived as a reason why states do

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|Selfless Notes|
observe international law is that it is a reciprocal

thing. They obey international rules with the expectation
that other states too obey international law and that would
favour all states alike.
Thats still to the best interest of the state? To comply with

the terms and conditions of trade agreements because it will
definitely improve the economy of both states? But maybe
you are talking about one of the theories on why states
observe international law, sometimes because of this
psychological fear of sanctions. Thats the opposite now of
self interest or maybe its the same. The negative way, fear of
sanctions.
For example if two states are entering into a treaty of

extradition. State A has citizens in State B. A citizen is to be
prosecuted in State A s country, of course you cannot
forcibly abduct. What you can do is you enforce it through
the usual process of extradition assuming there is an
extradition treaty. So under the principle of pacta sunt
servanda, agreements or stipulations of treaties must be
complied with in good faith. Pacta sunt servanda.
So if we have for example a treaty, international law
mandates that State X should comply with that obligation. By
entering into an extradition treaty, State Xs obligation is to
honour State Bs request for extradition. When B makes a
request that X extradite Bs citizen so that he will be
prosecuted in your country I will be obligated to favourably
grant the request because of the obligation that if it happens
to our state and we make the same request in you
government we also expect you to obey. Of course this will
be in the best interest of this state. Diba selfish siya gihapon?
Theres nothing wrong with that because it is part of human
nature. Thats like falling in love, part of human nature. Just
make sure it falls in the right person.
Whats a doctrine of self help by the way?

(From Use of force: war and Neutral Peace Treaties kay I cant
understand kay sir.)
In a broad sense: the unilateral protection and enforcement
of rights characterizes one of four possible ways of
managing an international conflict.
-the others are inaction which could also encompass
withdrawal -> negotiation between the parties in dispute and
listing the help of a 3rd party as a go between mediator,
arbitrator or judge.
-the legal literature indeed often uses the term self help in a
broad sense not so much as an independent concept but
rather as a heading under which various traditional doctrines
of international law allowing unilateral measures in
international conflicts are treated (ex. self defence; reprisal:
intervention;-> retorsion;-> nonrecognition; blockade or
termination of contracts.
Thats one, what do you think are other possible

reason for observing or copying with international
law, other than self interest?
P: If there are any misunderstandings or conflicts between
states it would also affect their economy..
(Masabtan portion na) The term self-help should

therefore be reserved to reactions against violations
of a states rights that do not occur in the form of an
armed attack.
This is related to the problem of enforcing, we dont have
international police, world court so we ask the corollary
question, if we dont have such things, how do we enforce
international law, other than relying on the chance that the
Just because a state is involve in a conflict it will

affect the economy?
P: if for example they are trading partners.
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|Selfless Notes|
state will comply international law for whatever reason.
maayo kaayo manghatag, generous kaayo why? Because

thats good for business. So sometimes be careful with
persons that are too generous, Im not saying that suspicious
ta all the time but its a fact of life, there are people who
would do that because of some expectations thats in the
future. The foreign policy of the US, economic aid because
maybe sooner or later, that recipients of these grants or aids
may be of use to US interest. And The Phil is one of those.
Who are unlucky in the radar of the US because of our
strategic location in the pacific. Theres no way the US will
give up the Phil no way.
But let us assume it does not believe in international

law, it will not really comply with international law,
what are the other ways by which we can compel
states to obey international law, this is where the
doctrine of self help applies?
We cant sanction the injuring state through a higher
authority because there is no higher authority. Remember
that international law is based on consensus. So we
police ourselves in a way. So the doctrine of self help
complements the theories on why states observe
international law.
So Nicaragua was one of the recipients of economic aid, so

when US discovered that suspended niya and eventually
cancelled it in the third quarter of 1981 because there are
usually two forms of self help:
1. Retorsion - is a lawful act which is designed to injure the
wrongdoing state -for example cutting off economic aid.
2. Reprisal - are acts which would normally be illegal but
which are rendered legal by a prior act committed by the
other state.
P: the other party wasnt able to get the judgment it

deserves
S: but not only that, even if there is no judgment yet
somehow compliance to, obedience to international law can
be demanded of a state like what US did to Nicaragua. When
the US perceived Nicaragua as having supportive logistically,
financially and militarily the rebels or guerrillas in El
Salvador, an ally of the US.
Distinguish?
Retorsion is a lawful act so if you do that no international
legal consequences. Whats an example of a retorsion?
-cutting off of economic aid.
The US had some sort of a mutual defense treaty with El

Salvador. The gov of El Salvador was fighting against rebels
and El Salvador didnt have a friendly relationship with
Nicaragua. Nicaragua was accused of supporting the rebels in
El Salvador because Nicaragua at that time became a
communist state, and El Salvador on the other hand was
capitalist. That is why ally of US. So this communist gov of
Nicaragua supported allegedly to the rebels in El Salvador.
The US discovered that, the US sometime in January 1981,
suspended its economic aid because Nicaragua was a
recipient of economic aid from the US.
Of course because no one is compelled to be generous. If you

cut off economic aid that is perfectly legal so when the US
suspended and eventually canceled its economic aid that
was actually trying to tell Nicaragua: hey Nicaragua obey
international law, do not intervene with the affairs of El
Salvador. So thats how states tell other states to obey
international law.
You know that foreign policy of US is akin to a merchant,
The intense form of self help is reprisal.

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Illegal expropriation by some states. There is such a thing as

extrajudicial expropriation. No court proceeding. A property
or business is taken by a foreign country without due process
of law, no compensation and all and so the injured state can
also do the same to the companies or whatever in the
territory of the injured state. So thats illegal because you
cannot as a general rule expropriate without just
compensation. Due process is an international accepted
principle of international law so that is what you call reprisal.
And we have already studied the various reasons why states

observe international law.
In brief:
Why do States obey?
1. It is a reciprocal thing.
2. Fear of sanctions
Were looking the problem of enforcement, yet we are looking

at the ways by which, despite the problem, states may be
compelled to observe international law. Dont forget the
doctrine of self help.
II
Evolution of International Law
To know how it evolved, we look at how it is defined by the
authorities of the matter and viewed from the auspices of
utilitarianism as we learned last time where international
community had viewed states as the only participants in
international law and therefore at that time of course then
considered the only subjects of PIL. So you add the traditional
definition of Brierly himself when he said that PIL is a body of
rules and principles of actions which are binding upon
civilised states in their relations with one another.
After all this discussion do you honestly believe that

international law is a true law? This question should be
settled first on agreeing on certain assumptions and this can
be done by using several lenses perspectives or views of
what law means.
If Austins command theory is used, international law can
never be a true law because there is no higher authority to
speak of. But that is not the only lens.
If our idea is law is law because it is binding, then the
conception of law in accordance with HLA Hart. Case theory
on primary and secondary rules that the primary rules are
binding only when they are in accordance with secondary
rules. So law can be perceived on the basis on whether it is
binding or not. If it is not biding then it may not qualify as a
law for that perspective but here, international law can be
binding. Yes?
Q: PIL can be considered as true law since anything that
coerces the states to behave in a particular manner is to be
considered as a law.
Traditional Definition: J.L Brierly (1881-1955): the

body of rules and principles of action which are
binding on civilized states in their relations with one
another.
As I have said, utilitarian belief have contributed to such
thinking and even in the Philippines we started to veer away
from the idea of utilitarianism even only upon the adoption of
the 1987 consti.
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For example, what did the 1935 and 1973 constitutions say
about the role of the government? If you have studied even
our past constitutions? And distinguish it from the way we
perceive the role of the government under the 1987
constitution.
Modern Definition: G.H Hackworth (1946-1961): It is

that branch of public law which regulates the
relation of states and other entities which have been
granted an international personality
Remember that even in the 1935 and the 1973 constitutions

the role of the government was perceived to promote or
rather to protect the state. Our conceptions of what matters
in our society as referring to the interest of the state had
been changed in the 1987 constitution because under the
1987 consti, instead of declaring the role of the government
is to protect the state that is no longer the case.
Of course your contemporary and post modern definition as

already mentioned in your outline would have to be that
which would have to be framed by the US restatement, the
third restatement of the law institute of foreign relations.
Postmodern Definition: Sec. 101 Restatement (third)
of the law by the American Law Institute of Foreign
relations Law of the US (1987): rules and principles
of general applications dealing with the conduct of
states and of international organizations and with
their relations inter se, as well as with some of their
relations with persons, whether natural or juridical.
Whats the role of the government now under the

1987 constitution?
To protect the people.
So from state to people. So we started veering away from
that utilitarian concept in the same way that the international
law also developed instead of simply looking at states as the
only relevant actors in international law.
Now dont confuse this with the idea that why refer to a
domestic document in regard to finding a better definition of
PIL when as we have learned last time. PIL is basically a legal
system based on consensus rather than command. So why
look at some sort of document found in the domestic regime
of the US. Well, after the US made such a definition, how did
the rest of the international community react to such
definition?
The modern definition of modern international law already

infused non-state actors as well and thats how we call them
by the way in PIL. We distinguished between state actors
and non state actors and many times well be referring to this
in different issues in PIL ranging from liability responsibility
effects of state actors and non state actors. So Hackworth
already added other entities which have been granted
international personality and this is where your advisory
opinion of the right of the UN for example to make a claim at
the international level as a result of the death of an officer of
the UN in the territory of a nonmember of the UN. That is
your modern definition of modern international law.
The reaction was affirmative and in fact widely accepted by

many authors and so the idea is, the international community
had put a stamp of recognition that this represents the
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modern definition of PIL. If you look at the definition, that

would now include not just states, or not just international
organizations but even persons whether natural or juridical
so this is where from your readings of Akehurst he mentioned
about multinational companies, NGOs apart from the UN of
course, WTO, and the various organs of the UN including
individuals.
sue the Phil government for damages at the international

level because the Phil has agreed to be sued actually before
what we call the ICSID (I dont know unsa ni but, sounds like)
so it may happen really that individual can even bring a claim
at the international level.
C: when it comes to persons, they dont have legal
personality because they will first seek the assistance to the
domestic law before going to the international and it will be
their country who will file a case to the international court of
justice.
So if I may ask this question, a very good question a possible

good question in the bar, and if we are to talk about those
that play active role in the formation of International law, to
be governed by international law, we call them subjects of
international law. So a very good question in the bar would
be:
Is there a term to that process? Are you familiar with

the term of diplomatic protection or espousal of claim
process? Whats an example of that?
C: when the japanese people, the comfort women atty in the
philippines, when they filed cases and suits because of the
abuses that was done to them by the Japanese people they
cannot go directly to the international court of justice
because they have to seek relief from the Phil government.
How do you treat individuals subjects or objects of

PIL? Explain?
C: treated as objects of international law because they dont
have the legal personality.
What do you mean by legal personality? There should
be added to that statement. They dont have legal
personality to what?
C: they dont have the capacity to file cases directly to
international courts.
Was that the ruling of the SC that they cannot? Or

there was no basis asking the government to
represent them? Thats a relevant observation indeed, well
since you have mentioned it. It was not because the comfort
women could not but it was simply because the SC
characterized the perceived offences committed by the
Japanese forces at the relevant time, rape for example as
constitutive of war crimes among the war crimes was not yet
considered as CIL or jus cogens norms at that time of course
it was not CIL or jus cogens prohibition then the government
might bail in representing the comfort weapon although of
course they received a lot of criticism because it was not
supposedly for the government to make that judgment, well
it could have probably just well, they could have the guts to
say that well just test this at the international level.
So including private corporations they dont have

personality?
C: Yes.
Are you sure? If a foreign investor in the Philippines for
example is victimized by certain gov regulations as when for
example unreasonably expropriates or takes assets of that
private corporations in the territory of the Phil, are you not
aware for example that that Private company can actually
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|Selfless Notes|
Generally individuals are objects of international law

but in cases and under certain circumstances
individuals can actually be considered subjects of
international law especially if you change lens in the
way we perceive subjects of international law.
What you are telling us individuals are objects of

international law.
What she was telling us class is this: true, the ICJ would only
allow states as parties to it.
What it means is that when individuals are victims of
behaviour of states like foreigners not treated justly and fairly
because understand that we have a rule in PIL that a
moment a foreigner is admitted in the territory of another
state, that receiving state is governed by at least the
minimum standard of treating the foreigner fairly and
justly. We call it the fair and just treatment of foreigners.
When it happens that the receiving state violates even that
minimum standard it may give rise to state responsibility. The
offence is not against the foreigner maltreated by the
receiving state but the offence is against the state of which
the foreigner is a national and it may be a case of diplomatic
protection.
If you think subjects of international law as those that are

governed and can derive rights under international law, then
individuals can also be
considered as subjects of international law.
Ex. We have the concept of the regime of international
humanitarian law, we call this the jus in bellum regime of PIL
what it means is that in times of armed conflict there is a
new regime applicable to the participants of the armed
conflict. This is of course governed by the laws of war. Later
on we will study the international humanitarian law and you
will learn that the primary objective of this modern field of
international law really is to protect civilians and civilian
objects.
What youre trying to say is that since an individual

cannot directly present a claim at the international
level, then an individual can never be a subject of
international law.
What this regime tells us therefore is: you see individuals

are also protected by international law and the
protection, the duty to protect is addressed to states.
So when states engaged themselves in war or armed conflict
they are bound by certain rules and the rules essentially are
for the protection of civilians to the extent that states are
required to behave in a particular way in times of war in
order to protect the rights of individuals, civilians for example
will support the contention or view that individuals in this
case are subjects of international law because they are
accorded protection.
Well if your perspective or idea of subject is on the basis of

whether it can maintain a claim at the international level
then individuals may be considered really as generally
objects of international law, but the answer to this question is
that individuals are actually (generally) objects of
international law but it doesnt mean that they will never be
subjects of international law.
So the approach would be:
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|Selfless Notes|
Another example as mentioned by Akehurst is a situation

where in an armed conflict for example it involves groups
exercising the right to self determination and when
certain groups in an armed conflict exercise the right to self
determination and they become what we call national
liberation movements because they have been subject to
some racist regimes colonial occupation and more or less
similar
discrimination
then
the
armed
conflict
is
characterized or is considered an international armed conflict
where normally when there is no foreign state involved the
conflict will be characterised only as internal armed conflict
and not international armed conflict. The result would be
since it is an international conflict then some provisions of
the 1949 GENEVA conventions will be applied especially
common article 3 of the four GENEVA conventions on the
protection of captured combatants where they are generally
afforded certain rights as prisoners of war. Meaning, you
have a situation where there is actually no third state or
foreign state involved. Conflict is simply between the regular
armed force of State A and an armed group in the same state
in the same territory but exercising the right to self
determination under the international humanitarian law, that
is to be governed by International armed conflict rule and
therefore under the GENEVA conventions the combatants
captured by one of the belligerents will have to be treated or
accorded prisoners of war privileges ex. prisoners of war is
sick then he has to be given medicine or would be allowed
access to reasonable medical treatment and other likes
appurtenant to prisoners of war.
We need also to distinguish between Private and Public

international law for purposes of proper framework of what
we are studying. Do not ever think that just because a
problem for example involves several states it is already a
PIL problem it depends on what we are trying to talk about.
So it is public international law if we are talking about the
relationships of international persons, states and other
international persons inter se (meaning as between them). A
private international law is also known as conflict of laws.
Public vs Private International Law
Public International Law governs the activities of states
and other international persons/entities in relations to each
other. It governs relationships of international persons inter
se.
Private International Law governs the activities of
individuals, corporations, and other private entities when
they cross national borders and in controversies involving
foreign element. It resolves conflict of laws.
It is Private international law problem if the focus of the study
would be to look for the law applicable to a controversy that
involves foreign element. So we have an example here:
X a citizen of state A is the ambassador to State B and X
official archives and documents was ceased by the police of
State B and he was subsequently subjected to State
sponsored torture in State B. State A filed a suit for
compensation before the ICJ. Is State B liable?
This is governed by PIL because this pertains to the alleged
liability of State B to state A.
So you notice mostly of the humanitarian law principles

protect individuals and so to that extent we can safely argue
that individuals may be considered also as subjects of
international law. There is therefore good reason to adopt this
definition as reflected of the modern or rather contemporary
definition of PIL.
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|Selfless Notes|
Private international law problem would usually involve a

situation where for example the same ambassador in State B
had funds in various banks in State B but also acquired other
funds and properties in another state like State C and State
D. So when X died the question is, with law shall govern the
distribution of the estate of X. In fact I think you have
encountered a conflict rule already when you were studying
family law in the first year.
Bentham
Another important document is Treaty of Westphalia in 1648.
This is important because probably the examiner of PIL is a
consti 1 teacher. And then he will ask what is Westphalian
concept of sovereignty.
What is this contribution of treaty to PIL?
Probably we simply dealt with the concept of consti 1 here
we need to understand the contribution of the treaty of
westphalia.
HISTORY OF PIL
Study the history of the PIL because we should expect for the
bar exams.
You know of course the Treaty of Westphalia ended the 30

years war in Europe. If you know history, ang mga colonizing
states before especially those largely influenced by the
roman catholic church, the roman empire for example, one of
the unwritten mission was to of course plant the catholic
religion or at least the Christian faith in colonized territory. Of
course thats what happen with the Philippines for example.
It just so happens that in Europe, there was also the
protestant religion and there were states that opposed to the
catholic faith and so it started the war. That is why it was
called the cold war.
1625 - Hugo Grotius [father of international law]

published On the law of War and Peace [In 1609, he
also wrote Mare Liberum (the freedom of the seas)]
Hugo Grotius. Who is he?
Father of PIL in the sense that as early 1609. Hugo Grotius
already wrote an important document that largely influenced
what is known now as UNCLOS. Especially the freedom or the
various freedom of the sea now found in UNCLOS 3. This was
called the Mare Liberum, the freedom of the seas authored
by Hugh Grotius and of course at around the same time also
he was able to write already a book entitled on the law of war
and peace.
Eventually, states agreed to settle their differences and

ended the war by signing the treaty of Westphalia. Among
the important provisions in the treaty were the provisions
recognizing sovereignty of each states, it was then called
monopolization of power within a state, meaning in a given
territory there should only be one sovereign power so in
effect any act by third states that would affect the exercise of
political power in the territory of another would be an
intervention or a violation of the sovereignty of that state. It
also gave rise to the principle of co-equality of states,
precisely no state can interfere or intervene with the affairs
of the other because of the principle of co-quality. So this
1648 - Treaty of Westphalia (Spain, Roman Empire

etc.)
16th 17th centuries were the classical age of Public
international law
1789 - birth of the term international law by J.
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|Selfless Notes|
treaty of westphalia introduced us to the concept of

sovereignty of states and coequality of states. Of
course the term international law was first coined by a
Philosopher economist, Jeremy Bentham.
1907 Marked the beginning or ended the classical history of

PIL. States then began to voluntarily meet and enter into
multilateral treaties and conventions in order to put an end
to war and to make sure that combatants of war would have
to observe certain norms and so we have The Hague and the
Geneva Convention in 1907. Of course when the League of
Nations was established, the precursor to the UN, it created
the permanent court of international justice.
1863 -Lieber Code (Lincolns General Order No. 100 or

the Lieber Instructions), the first document that
governs the conduct of war.
1922-1946 -Permanent Court of International Justice

(PCIJ) of the League of Nations, then replaced by the
International Court of Justice (ICJ) of the Un
The Lieber code is also an important document to consider. It

has been considered as the document that governs the
conduct of war and so thanks to Abraham Lincoln.
What was the Lieber code all about?
Diba Civil war in the United States? You know you have to
praise Pres. Lincoln for taking it upon himself to be governed
by certain rules of war even though he wasnt actually
required to do so.
Whats the relevance of PCIJ?

The decisions of the PCIJ are still relevant even up to the
present. I told you that when you research for the ICJ
decisions you go to www.icj.org even PCIJ decisions is still
found there. So thats the relevance of the PCIJ. It was short
lived it was then replaced by the ICJ which of course was the
court or tribunal under the auspices of the UN which of
course replaced the league of nations.
When of course the civil war erupted where the southerners

wanted to separate from the union okay and so it resulted to
Southern vs Northern states and so civil war erupted. Lincoln
ordered his friend, a German National who had mastered
military law to draft a code that will govern the conduct of
war. It was called the Lieber code. From the authors last
name, Lieber. So it contributed a lot to International
humanitarian law for example on the rules of the conduct of
war.
1948 The UN created the international law commission or the

ILC, tasked to codify international law. Now the relevant
question always is what is the contribution of the
international law commission.
In PIL we will be studying several conventions and normally
when you see a multilateral treaty that carriers the name
convention it is a multilateral treaty that had been created
upon the initiative of the UN. Because later on you will learn
that treaties will be created or established in different ways.
Like in a bilateral treaty for example that one state will
prepare the treaty and ask the other states to simply sign it.
Or that they meet at an international conference for
1899 -Permanent Court of Arbitration

1907 Hague and Geneva Conventions (there were four
Geneva Conventions in 1949)
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|Selfless Notes|
example, this is not at the instance of the UN but they are

part of a loose association and so they meet at a conference
and they decided to make a treaty.
the discussion of the ILC helpful in the same way when we

study for example and try to look for the intent of the
framers of our constitution we consult the deliberations as
well of the members of the constitutional commission. So
thats the relevance of the work of the ILC.
A treaty can also be established in that way or even an

international organization can actually draft a treaty and then
present it in a conference. Like for example the ICRC
(International Committee on the Red Cross) had been a
contributing draft treaties in several conference and other
organizations.
19th, 20th centuries - the increase in global trade,

armed conflict, environmental deterioration on a
worldwide
scale,
awareness
of
human
rights
violations, rapid and vast increases in international
transportation and a boom in global communications
saw the importance and usefulness of PIL, which at
this time began to establish new and modern areas in
international law (trade and investment, technology,
human rights, environment, space, etc.)
Now the moment, the UN initiates a convention, the one

good example of this is the Vienna Convention on the law of
treaties or the VLCT of 1969 which entered into force in 1980
upon the establishment of a convention, you will note that
before it had been established, before ratified and signed by
states that undergone deliberations, discussion and so there
is what we call preparatory works to a particular convention
and normally the international law commission will be asked
to prepare the evidence of this preparatory works and
therefore the interpretation of the International Law
commission (ILC to a convention that had been initiated by
the UN would be very helpful in interpreting treaties. So you
have conventions that had also commentaries by the ILC.
Every now and then the ILC would come up with certain
reports especially in certain conventions. The observation
therefore of the international law commission would be very
helpful in interpreting conventions or treaties.
Its possible that the question in the bar example is:

What is the normative value of the works of the ILC in
PIL? Or maybe what is the ILC? What is the normative
value of its works in PIL?
The 19th and the 20th centuries of course saw the
emergence of new areas in PIL why? This was the beginning
of modernization, globalization and so therefore activities of
men got complicated as early as 19th century so there was a
need also to acknowledge that there should be some norms
governing this emerging areas in the activities of states. Well
talk about that later on.
Later on we will study interpretation of treaties and one way

to interpret a treaty is to look at the text and the
circumstances under which it was enacted, we refer to the
context under which it was enacted but we also need to look
at the object and purpose of the treaty and since the object
and purpose of the treaty may not be readily available by
looking at the convention or the treaty itself we might find
Three regimes/Divisions of PIL

1. Law of Peace
2. Law of Treaties
3. Law of the Sea
4. Diplomatic relations, etc.
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|Selfless Notes|
The Laws of War

-Jus ad Bellum (legality of engaging in war)
-Jus in bello (legality of conduct of war)
for those states not engaged in war. They are also governed
by another regime which is the regime of the law of
neutrality.
The Law of Neutrality

-Governs the conduct of states not engaged in war.
How will they conduct themselves when some states

engaged in war and they are not participants. So always take
a look at this framework because you will see the relevance
of this framework later on.
III
Now here, very important. When you study PIL always

have this in mind: the whole body of PIL considered it
as one pie and divided it into three. One bigger slice of
that big pie would have to be the law of peace, laws of war
and there are at least two regimes of the laws of war one we
call Jus ad bellum and ad in bello.
The idea of a subject means that it can make a claim at an

international level
2 aspects
It can make a claim
It has rights
Diplomatic Protection
o When a state lodges a complaint because of an
injury suffered by its national in the terrirtory of
the other state.
o Must establish nationality
Functional Protection
o When an international organization lodges a
complaint
o No need to establish nationality
o Reason is it cannot perform certain functions or
it cannot function effectively to make the
organization
function
without
giving
it
international personality.
Subject of international Law
o Enjoys international legal personality
o It is only states that are subjects of international
law as a general rule.
When you say Jus ad bellum, we will be talking about the

rules in justification in engaging into war meaning, are there
rules governing legality or validity of engaging in war. So
here we will study for example when will a state may validly
use armed force.
Example, terroristic attack to more than 500 citizens in
France would that justify an immediate military action by
France in regard to the supposed authors of the terroristic
act? Ok. So example we have been talking about self defense
whether there are some threshold to be observed, when to
invoke self defense.
Thats jus ad bellum. Now the moment, war arises, whether it
is valid or not, whether it as invalidly engaged in or entered
into states doesnt matter. The moment, armed conflict exists
then it would be governed by another regime, we call jus in
bello regime or the legality of the conduct of war. Basically
this concerns international humanitarian law and of course
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|Selfless Notes|
Sources of PIL
You have to distinguish a treaty where the parties are just

few because there is a sufficient practice of CIL that will
evolve into a new one.
Does art 38 of par 1 of statute of the ICJ enumerate the

sources of PIL?
o It does not really say that the following are the
sources of PIL.
o The context is when the ICJ decides a case they
will have to base their sources of PIL as listed in
par 1.
o These are the sources of PIL in so far as the ICJ
is concerned.
o The international law commission said that
these are based on experts perspective on
sources of PIL.
Relevance of formal and material source?

Trying to find out the binding efficacy of the particular norm.
For ex if it is a formal source it is more than just a description
on how the law was formed. It talks about the manner or
process of formation that made it binding. Example a treaty
can be viewed as formal or material. It can be formal when
parties can be bound and they want to know why made it
bind and the reason is consent. It can be also a material
source by looking at the subject matter. It made it binding
because it is found in the treaty. There is a provision in the
treaty that made it binding.
How do you distinguish?
Refer to the definition of formal and material source in the
book of akehurst.
What is the relevance of dividing the sources into

primary and subsidiary?
(mura wa man na tubag c mik2 ga recits ani)
IV
It can be a source in a universal application or it can be a

sources as between states.
Significance of distinguishing primary and subsidiary

sources
Intended to separate the law creating processes. Meaning
that international law will develop either by custom,
convention, or general principle. Opinion of a qualified
publicist is not a subsidiary source. Opinion of a high
qualified publicist is not a subsidiary source. But opinion of
the most highly qualified publicists is a subsidiary source.
Most Highly qualified publicists is a law determining
A treaty can be a codification of customary international law

or a progressive development of customary existing
international law. It can be a codification or an establishment
of a new customary international law.
A treaty creates a new international law. Lahi ratong 2 states
kay ang uniformity or consistency requirements cannot just
be formed by 2 states, as compared with multilateral
treaties.
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|Selfless Notes|
processes because he only determines or locate the law that

leads to formation of an international law.
Is universality of practice required?

No, what is required is general practice.
Is there a hierarchy of sources?

In conventions or treaties it is binding between the parties
and it is international law between the parties. The name of
the treaty does not determine whether it is international law
or not.
Since we are talking about treaties as a source of PIL. The
relevance is to limit it to what we call as law making treaties.
It is a law making treaty if it general in application and
mandates the observance to a particular rule of conduct.
Contract treaties are those more of a commercial in
character. Those treaties made by private individual and
applies only to the parties of the treaty. Reciprocity also
what characterizes what a contract treaty is because it only
applies to both parties.
How do you determine or establish general practice?

There is no specific threshold in determining generality.
In the North Sea continental shelf cases:
The state practice must be extensive and virtually uniform
but recount only those practices of states whose interest is
affected. We call this as relevant state practice. We look at
only the practice of those states that are specially affected.
We dont count those who do not have continental shelf in
relation to the north sea continental shelf case.
V
In the case of Nicaragua what customary international
law principles were discussed by the ICJ?
Principle of Non Intervention as one of the considered CIL.
Custom
Custom as evidence to general practice accepted as law. One
is objective element or general practice. Second is subjective
element is the opinion juris.
What did the US do that impelled the ICJ to talk about

the principle of non intervention? Was it considered
by the ICJ as CIL?
Yes
How was State practice established in the Paquete

Habana Case?
Fishing vessels doing commercial activities were held for
public auction by the US as prizes of war.
What was the basis of the ICJ in say that it is CIL? If ICJ
considered the norm as CIL and you will be ask whats
the basis in saying that it is CIL?
Automatic na class, you prove the elements.
In this case state practice was evidenced by previous

treaties, and official acts such as judicial decisions, official
issuances, etc. made by the US and other states in relation to
capturing of prizes of war.
Is the particular norm a CIL? And you will answer yes

and you will be ask whats the basis?
Then automatic, state practice and opinio juris.
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|Selfless Notes|
But the question here is just like in the Paquette Habana

case, you need to know.(Let us not talk about the state
practice for a while), let us talk about the opinio juris. How
did the ICJ conclude that the Principle of Non Intervention had
been practiced by states with the understanding/belief that it
is a legally obligatory conduct?
The question is how do we establish that?

One way of looking at opinion juris is by looking at the acts of
states through numerous declarations especially if it states
about general assembly resolution ( general assembly gud na
class thats a plenary). It is a resolution agreed to by the
member states of the UN. Imagine there are 193 members of
the UN and all 193 signed the UN declaration, declaring that
the use of force is to be prohibited, isnt it an indication that
these states do believe that the observance of the norm is
really out of the belief that is a legally binding norm or how
else would they sign the resolutionwhat else?
What was the evidence of the finding of opinio juris

that principle of non intervention is CIL?
It is not difficult to really locate state practice, we have
certain acts of the state that will indicate that the certain
state do practice a particular norm so thats not difficult,
though it would be quite a process of determination. But the
more problematic element would be psychological or
subjective element because it is a mental element.
What are the proofs of opinion juris apart from

declarations? What about treaties, convention?
In particular for example if you talk about opinion juris on the
prohibition against the use of force and non intervention
principle, number one proof of that opinion juris is general
assembly resolution 2625.
Its hard to distinguish whether a particular behavior of a

state is such that it adhered to a norm because of the belief
that it is a legally binding norm or it is simply for the sake of
convenience. We have to find a way to establish opinio juris.
And the reason why we are reading Nicaragua case is we
want to see how the ICJ found out opinio juris in the principle
of non intervention including the principle on the prohibition
of the use of force.
What is it? What do you find in it?

Its a list of certain principle or declarations of friendly
relations of the state. I think the first four declarations ( if you
have time take a look at 2625) it really speaks of the
prohibition on the intervention of the internal affairs of others
states, not to intervene in the political independence of other
states and not to interfere with the sovereignty of other
states.
Whats the best way to prove opinion juris?

It must be proven that the state actually follows.
Are we just focusing on the US? Even in this case d ba, gi
debunk man gani na na contention. We are not just to look at
the practice of the states involve in the case but we have to
look at the practice of the other states. Not just the parties to
the caseso, again, we look at what? It is given that they
practice the norm out of the belief that they are legally
binding norm.
There was a prohibition on the use of force, so what we are

looking at is a resolution signed by a large number of states
as proof of that opinion juris. Conferences, and even the
Montevideo convention on the rights and duties of states
provide mandates on the prohibition on non interference, non
intervention as well as the use of force. So with all of these
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|Selfless Notes|
included of course in the list are other numerous related

general assembly resolutions, then ICJ concluded that states
do observe this out of the legal obligation and therefore there
is opinion juris.
What is an accelerated CIL?

Those customs or practices which did not go through a long
period of time but are adopted by the states despite non
passage of time.
Just to give you a list of the principles involved in the

Nicaragua case. Just so you will have an idea, the moment
we will talk about this, well refer back to Nicaragua vs US. So
make this as your framework, the moment we talk about the
principle of non interventionthe prohibition against
violation of sovereignty of another states, the prohibition on
the use of force against another state, the right of self
defense which would require the threshold of armed attack
against the invoking state, thats also another important
principle discussed by the ICJ thats why even if it is rather
long case it does not matter because it covers several
principles anyway. In fact if you have studied Nicaragua case
you have already studied the entire discussion of CIL. There
is a question definitely in the midterm exam. This is
important, and it was asked in the bar exam several times.
I dont want to use the term adopted if it is CIL, I think the

better term here is practice.
So time is not relevant in determining CIL?
No sir.
So a CIL can exist even for a brief period of time?
Yes Sir.
I dont want to really say that long period of time is irrelevant
because actually you can make use of long period of time as
evidence of opinion juris because thats evidence of repeated
act, thats evidence of generality. I know what you are trying
to drive at, whatever case you have read in relation to this,
Im sure you are talking to north sea continental cases, and
its called instant CIL law in Akehursts and its also called
accelerated CIL.
General CIL has been determined of course by the first

element, general practice of the states and as Ive said, not
just by the states party who are in dispute before the ICJ,
because the US was adamant that it was not practicing what
other states has been practicing. And opinion juris may be
reduced from the attitude of the parties concerned and that
of states to certain general assembly resolution.
Like for example, if you will be ask in the bar exam, there
might be a question difficult for beginners in PIL What is
the normative value of general assembly resolution?
While general assembly resolutions are not binding because
these are just resolutions, these are however reflective of the
opinion juris of a state. While not legally binding they have
normative value, that is the establishment or proving of
opinion juris.
What it means only is that a short period of time will not

necessarily bar the formation of CIL. But that is not the same
as saying that long period of time is irrelevant. It simply
means that a short period of time will not necessarily
bar the formation of CIL, and so there is a possibly of
instant CIL or accelerated CIL. Normally it happens when
there is a fundamental change in the international situation.
Normally instant CIL develops because of some important
significant events happening in the international community.
And I think I made an example last time about terrorism
because of 9/11. So the world perceived terrorism differently
after 9/11 compared to before 9/11. So what used to be
21

|Selfless Notes|
probably not acceptable universal criminal jurisdiction

applicable to terrorism, it may Im not saying it is at present,
but it may be a good basis for saying that even universal
jurisdiction can be exercise in relation to terrorism. And
therefore, terrorists may be prosecuted anywhere regardless
of where the crimes had been committed. It is now emerging
CIL but of course we can only surmise that thats the case
until and unless it will be affirmed of course in a publication
of most highly qualified publicists and decision of tribunal.
miles, but if its 200 nautical miles ended its slope it is up to

200 nautical miles. Problem is that if the distance between
state A and state B is less than 400 nautical miles, lets say
300 nautical miles, so nag overlap sila. Of course state A and
state B cannot insist on the 200 nautical miles. So how do
you delimit now the continental shelf? There are two rules
possible. Equidistance principle and Equitable principle.
1. Equidistance principle regardless of the distance
between two points, you cut it into half.
It may be possible that there is gradual
dropping and it so happens that the minerals are there. So
state A may claim that dili equitable ang equal distance but it
should be the other form of delimitation which is equitable
delimitation base on equity.
Why was it relevant in the case of the north sea

continental shelf? What happened there and what was
the issue?
Germay was in an agreement with Holland and Denmark with
regards to the delimitation of the continental shelf.
What is a continental shelf by the way?
The sea is not part of the continental shelf that is governed
by a different regime, it is governed by the exclusive
economic zone. Beneath the superjacent water is continental
shelf and when it extends further when it is not slopping
already then that becomes the seabed or subsoil it is
governed by different regime. Up to 200 nautical miles, the
superjacent water is governed by exclusive economic zone
regime. So kanang fishing rights and other living resources
above the continental shelf it is governed by exclusive
economic zone regime. Beneath the seabed or subsoil or the
continental shelf of course there are minerals, thats
governed by another regime, continental shelf regime. And of
course we started with that regime in 1958 with the 1958
convention on continental shelf.
In 1958 continental shelf regime truly

equidistance principle, exception ang equitable.
advocates
In UNCLOS, the first rule is agreement. Parties are required to

first agree on how they delimit. If they cannot agree then the
equidistance principle will apply. Except, if applying the
equidistance it will not result to equitable delimitation. Why?
Because it says that equidistance shall be applied unless
there are special circumstances that would warrant the non
application of the equidistance principle.
The problem in this case is that Netherlands and Denmark
argued that the binding principle for Germany is equidistance
because it is in the 1958 continental shelf regime and it says
it is equidistance principle. Germany said that it has not yet
entered into force, in so far as Germany is concerned, we
have not yet ratified it at our domestic level, so we cannot be
bound by it. Denmark and Netherland countered that even if
Germany has not yet ratified it is a CIL. D ba regardless if
whether you are a party to the convention if the rule found in
We have this question on delimitation on continental shelf

occurs where two states are opposing each other with both
continental shelf. (illustration) What if the two states have
overlapping continental shelf? It can go as far as 350 nautical
22

|Selfless Notes|
the convention is just a reflection of CIL, then you will still be

bound. Germanys counter-argument, is that how can it be a
CIL when it was only in 1958, and we are now arguing about
it and it has been 3 , 4 or 5 years. It is impossible for
equidistance principle to have ripened into CIL for that short
period of time.
CIL. There are principles that had been carried over, practice
before and now found their way in the provisions of the
UNCLOS.
Lets talk about the asylum case.
Whats the
relevance of this case?
For the CIL to apply it must be in accordance with the
concept and uniform usage practice by the state in question
such as the Colombia and Peru in this case. In this case Dela
torre revolted against his government and was granted
asylum in the embassy in Lima. Peru refused to give safe
passage to dela torre to go out of the country. Thats why
Colombia brought this matter to the ICJ because Colombia
contended that it was qualified or competent to grant
political asylum to Delatorre.
So what did the ICJ say?

On that point, we say that the short passage of time is not
necessarily a bar to the formation of CIL. It is a different
perspective in saying that period is not relevant or long
duration of time is not relevant. It is still relevant but of
course not conclusive. That is not the only test. Precisely the
best approach is that duration of time is not conclusive and it
is not required, but it has significance, because in a way it
can prove the fact that the practice has been repeated over
time and because it has been repeated over a long period of
time its a good indication also of opinion juris. We are not
saying it is already evidence of opinion juris but it can help.
On the other hand, short passage of time will not necessarily
bar the formation of CIL. Although eventually of course the
ICJ did not say that it should be equidistance principle, it
should still be equitable, but on that point there is already a
pronouncement from the ICJ.
So what was the IL in this case? You know what

asylum is?
In fact it is CIL that state should respect the grant of asylum
but Peru questioned the grant of asylum by Colombia. Dela
torre was a rebel in Peru, he revolted against Peru. Peru also
argued that he committed crimes not related to rebellion, so
what Dela torre did was that he sought asylum in the
embassy of Colombia stationed in Peru. Of course it granted
the asylum.
Is long period of time relevant and important in

determining formation of CIL?
Well it is relevant but not that important although we can say
that it is not that indispensable but definitely a short period
of time will not necessarily bar the formation of CIL. It is the
meaning of instant CIL.
If asylum had been granted, it is CIL that all states must

respect because it is part of CIL. As a matter of course the
person granted asylum would have also be granted the safe
passage. Meaning he should be allowed to leave the territory
of that state not being subjected to prosecution, arrest, and
detention. It was disagreed on the basis that its not for
Colombia to characterize or to qualify the offense as political.
Because the only way you can ask for asylum is to say that
you have been the subject of political persecution. But if you
are an ordinary criminal and has committed common crimes,
In Libya v Malta. There was also a discussion on the nature of

the 1982 convention on the law of the sea. All you need to
understand is that the UNCLOS - united nations convention
on the law of the sea is also a codification of already existing
23

|Selfless Notes|
such as murder, robbery, of course asylum is not available.

But if you claim that you have been persecuted politically, so
you have committed for example an offense in violation of
your own, like rebellion, or any other political crimes, then
you may seek for asylum. Its not the issue that Peru refused
to respect the grant for asylum. The issue is that its not for
Colombia alone to characterize the offense as political
because Peru said that it was not a political crime.
What about the Montevideo Convention? Because the

ICJ said that it is not an evidence of this CIL invoked
by Colombia. Why?
Because it actually accepts the right of unilateral
qualification on which Colombia rely and which was not
ratified by Peru.
And then didnt ICJ also notice of the general
statements in the Montevideo Convention, it was not
specific as invoke by Colombia?
Yes sir.
What was the argument of Colombia?

Colombia argued that it is the CIL of Latin American
countries. There is a prevailing CIL in the Latin American
countries where it is said that the state granting asylum has
a competence to determine or qualify the offense as political
or not.
What is the evidence presented by Colombia? Didnt
Colombia and Peru peruse a certain conventions in
Latin America? What conventions became relevant in
determining there exists such CIL in Latin America
that the state granting the asylum has the
competence to qualify the offense as political?
It was the Montevideo Convention on the rights and duties of
states. ICJ needs to analyze the claim of CIL insisted by
Colombia. It is the CIL among Latin American Countries.
What other conventions where mentioned other than

the Montevideo Convention?
It also made mention of the Havana Convention.
How was it discussed in the ICJ whether or not it
offered proof of that CIL?
Basing on the ruling of ICJ it was not proven that the
Colombia government has this state practice when it comes
to having this unilateral qualification of allowing those
political refuges.
Other than the Havana convention what else? We have the
Montevideo Convention, we have the Habana Convention,
what is the other one? What about certain extradition
treaties, (not sure sa words) did it mention about it?
So all these conventions did not categorically establish what
was claimed as CIL by Colombia. And so according to the ICJ,
the burden of proof lies with the party alleging the existence
of the custom. It must demonstrate that the custom relied
upon was established in the manner as to become binding on
the other party. And this is the most important principle, an
alleged regional custom demands a greater uniformity
in practice than a general custom.
What does it tell you by the way when you said CIL
among Latin American Countries?
It is a different kind of CIL.
What do you call it?
It is a regional CIL, so there is such a thing as CIL and
well see the importance of knowing whether the CIL involve
is regional or universal.
24

|Selfless Notes|
What this case therefore tells us is that you need to first take
note of the fact that if you are dealing with regional CIL it
requires higher threshold. But there is no specific threshold in
International Law but the fact remains that greater uniformity
is required when it comes to regional CIL.
subjective or psychological element of opinio

juris.
And weve learned that there are ways on how to prove these
two elements and by the objective or material element of
CIL can be deemed from the official acts of the state, in
the form of legislation, in the form of official pronouncements
by the president and other officials, and these of course are
the pronouncement we can see in papers and official records,
administrative issuances, decisions in courts. And when the
state concerned ratifies or enters into a treaty or convention
so thats the way to tell or determine whether a particular
state has practice a particular norm.
It can be explained based on the fact that when it is regional

CIL then there are only few states and most of these states
share more or less the same culture, practices, and beliefs so
it should be more or less uniform. Whereas if it is universal
CIL, there are so many states involve, its not also sensible to
require a very high standard on uniformity because states do
not share the same history, practices, culture, and beliefs.
You dont require a higher threshold of uniformity when it
comes to universal that is why I said earlier unanimity in the
practice is not required, what is required only is extensive
and uniform practice, and not just practice of all states but of
only that of the relevant state practice.
The problem is with the subjective or psychological

element because we need to look into the mental element
of the states. And since the state does not have a mind, we
have to look into a lot of things taken together thats the only
way we can say that there is such observance of the norm
with the believe that the norm is a legally binding norm.
Is it possible for a state to be exempt from the

application of CIL? It means that covered sya
supposedly but d lang cya mo observe, is that
possible? Tell us something about the Anglo
Norwegian Case ( UK v. Norway). What was the issue
all about?.
Ways on proving subjective element of opinion juris

1. General Assembly resolutions
In Nicaragua vs US weve learned that we can see this
usually and common example would be when states affirmed
or agree on some united nations general assembly
resolutions. Weve learned that while general assembly
resolutions are not binding because they are just expressions
of what the member nations of united nations would happen
in a particular case but its a manifestation, its an evidence
of the belief of this state that this norm embodied in a
general assembly resolution is a legally binding norm. And so
VI
Weve learned that accepting CIL by a court confronted with
a question whether there is a law applicable to a particular
controversy would require that CIL should be establish. The
court cannot just accept CIL without proving that the
elements are complied with.
Elements are:
objective or material element of state practice
25

|Selfless Notes|
while general assembly resolutions are not binding in

themselves they however have normative value.
it be able to establish? The short period of time alone will

not. So you cannot say that the short period of time can
establish, that alone will not because there are other factors
to be considered. In this pronouncement of the ICJ the __to
consider is not so much of the time but how they conceived
the practice is and how uniform the practice states who are
affected by the norm. When you speak of state practice, we
are not looking at the state practice of all states, we are
looking at the state practice of the relevant states. That is
why you say its a relevant state practice.
2. General Practice
Another way of looking at whether the practice norm is
done with the belief that is it a legally binding norm is when
there is usually a general practice of that, so meaning
while it proves an objective element it can also establish
subjective element if it had not been generally practiced. You
can probably say that what good reason why many states
observe the norm is because probably this is a binding norm
otherwise it would have not been generally or uniformly
practice by the states.
North Sea Continental Shelf Cases.

Germany in the middle and Netherlands in the other is
Denmark, so opposing states. It may happen that some
maritime regimes will actually be overlapping with one
another.
3. Practice for a long period of time

Another way of proving that indeed the practice is one
with the belief that it is binding norm is when it had been
practice for a long period of time. Although length is not
conclusive as you may have encountered in your reading, it
may help in establishing the value of that particular norm.
However, that is not to say that a CIL cannot be established
or cannot be form for a short period of time.
What is a Continental Shelf? Because this case involves

Continental Shelf. Try to imagine our Exclusive Economic
Zone (EEZ). Our EEZ is 200 nautical miles from the baseline
of the coastal states. The regime on EEZ refers to a natural
resources, living or non living natural resources found in the
superjacent water. Although when we speak of EEZ, it
practically refers to the superjacent water. Although when we
study the law on the sea later on, you will notice that in the
way the UNCLOS is, has been written it started with the
discussion of EEZ in the more general term. It also includes
not just water and also the sea bed and the subsoil, but since
after the discussion of the EEZ, there is another regime
adopted in the UNCLOS which is the Continental Shelf
Regime (CSR).
That is why in this question, is it possible that a

norm not practiced for a long period of time can result
in the formation of the CIL? So we have the cases of the
North Sea Continental Shelf cases. This is the pronouncement
of the ICJ in the said case It does not say that yes CIL can
be established even for a brief period of time. What it says
is that short period of time will not necessarily bar the
formation of CIL. So what Im trying to say is on the time of
whether short period of time can bar the
establishment of CIL? The answer is it cannot bar. But will
This CSR means that you have EEZ in general and you also
have the CSR in particular. In effect if you talk about EEZ,
26

|Selfless Notes|
youre talking about the rights of a coastal state over the

sources in the superjacent water. Meaning, excluding a
seabed or subsoil already found in a continental shelf. You
already know what Continental Shelf is, of course beneath
the water of the ground of the earth and the territory of
course, if you think of that point where the water meets the
dry land, beneath that of course slopes down slowly and
thats the continental shelf until it reaches a portion where it
is no longer sloping, thats the seabed already. So that
sloping, natural colongation of the earth under the water is
your continental shelf.
equidistance principle, what is the basis of equidistance

principle?
Norway: Its in the 1958 Geneva Convention on Continental
Shelf. Germany: It has not yet entered into force, so we
are not bound by that convention.
Norway: Even if it is just a convention it is a CIL, the
equidistance principle is a CIL.
Germany: How can it be CIL when it is just exist for a very
short period of time? It was established in 1958 and it was
just less than 5 years that we talk about equidistance
principle.
Under the law, two states opposing each other, each is

entitled to at least generally to 200 nautical miles also of the
continental shelf, the problem there is, what if the two
opposing states have a distance of less than 400 nautical
miles. Okay lang if 400 exactly coz you will have 200 on one
end and 200 on the other, there is no overlapping over one
another. In this case, its leass than 400. So the problem now
here is on how to delimit or delineate the continental shelf.
Should it be applying the equidistance/equidistant
principle which means simple mathematical calculation.
Whats the middle between the point of state a and the other
point of state b.
ICJ said that its a wrong argument to say that brief period of
time will bar the formation of CIL. In fact what is important is
the practice whether it is extensive or virtually uniform
practice by the relevant states. But ICJ did not say that it
should be the equidistance principle that should be applied
but only on the issue on whether its correct to argue that
short period of time will bar the formation of a CIL. Is there
such a thing as instant CIL? (pwede bar question)
Another term for that is accelerated CIL . Take note of that at
least you can talk about the North Sea Continental Shelf
Cases.
Another principle is equitable delimitation, not based on

distance but base on equity. Meaning if we divide it, lets say
60-40 in such a way that the sharing exploitation of the
resources in the continental shelf would be more or less
equitable, instead of 50-50. The Federal Republic of Germany
disputed the application of the equidistance principle, while
Netherland said that Germany is bound to the principle. And
then Germany said: how can we be bound by the
Another example of a recognized CIL would be certain

provisions, rules found in the UNCLOS. Libya v. Malta, lets
talk about this when we reach law of the sea. What is
important here for now is that there are rules in the UNCLOS
that are reflection of CIL.
Columbia vs. Peru Is an important case to read because
based on the readings on the first few part of the book of
either Akehursts or Shaw, both authors mentioned of
regional CIL and universal CIL.
27

|Selfless Notes|

Its not just for academic purpose that you know that CIL can
only be regional or universal. Theres a legal significance to
that.
(Havana
Conventions,
Montevideo
Conventions)
the
provisions in this conventions were not categorical as to
whether its the state granting asylum which has been
granted the competence to characterized the offense.
According to the ICJ, especially that we are dealing here with
regional CIL, it is important for us to note that there is a
higher threshold in establishing a regional CIL. And
because there is a higher threshold, the demand for
uniformity must be greater compared to a general
Custom. Thats a legal significance therefore, why we need
to identify the Custom whether it is regional or universal.
Because the case here allegedly dealt with a regional custom
among Latin American States. And according to that regional
custom, the one granting the asylum should have the
competence to characterize the offense. ICJ observed that
the proof given to establish that, was not sufficient and the
ICJ wanted a greater uniformity than general and bare
averments of some conventions.
In this case, the asylum case you have a rebellion leader

Dela Torre sought asylum from an embassy of Colombia of
course stationed in Peru. Colombia granted the asylum. You
know what asylum is right? If you are a victim of political
persecution for example, you can seek asylum and the right
to asylum is recognized as part of CIL. Because when you are
a political opposition for example you are simply exercising a
facet of the freedom of expression. So its wrong for a
government to persecute one who has simply expressed his
political belief, and under the ICCPR that should not be a
subject of persecution if you are simply exercising a political
right. And so it is recognize that individual should not be
subjected to political harassment and so asylum is a
recognized right under the International Law. So Dela Torre
sought asylum, Peru however, questioned the grant of
asylum, because it said that the crime committed by Dela
Torre cannot be characterized as a political offense. But
Colombia characterized the offense as political thats why it
granted asylum. When Dela Torre wanted to leave Peru and
wanted to exercise his right to asylum and therefore, ask for
a safe passage or safe conduct. Peru refused. So the Issue
there was which state should have the competence to
characterize the offense as political or not for
purposes of asylum. The State granting asylum or the sate
refusing to recognize the grant of asylum. ICJ did not make a
ruling on which state should have the competence to
characterized the offense but it did say that the claim of
Columbia, because Colombia invoked Certain Conventions
Persistent Objector Doctrine

The other important term to consider here is this, may a
state validly exempt itself from the application of CIL?
Are all states bound by CIL so that if one state objects for
example a CIL, then that state however, it should set aside
its interest and then yield to the rule of the majority? Is
there such a thing? Is it possible? Because all along we
thought that CIL is applicable to all, no exception. But is it
possible for one not to be governed or is bound by CIL?
Yes. So whats the threshold here? Is not practicing the only
requirement? Is non practice enough? It must also be shown
that that particular state has been contradicting that
particular law.
28

|Selfless Notes|
What is Persistent Objector Doctrine (bar exam

question) other term is the Persistent Dissenter
Doctrine. Its not just about not practicing, its not correct to
say that if you have refused to practice the norm, and where
that norm already emerge as CIL that you can already be
exempt from complying with the already emerging CIL. In
that situation you can simply be considered as a violator of
the CIL.
A bay is a natural indention of a landmass (think of

letter C). Why was this controversial in UK vs.
Norway?
Norway is located in the northern part of England, it is known
for fishing. Fishing had been the main industry of Norway.
The problem is the extent of the fishing area of Norway. At
this time there was no UNCLOS, there were preliminary talks
in 1940s of the UNCLOS 1 but the provisions were not
comprehensive enough to cover all issues. There was
UNCLOS 2 of 1950 or 1960s followed by the UNCLOS 3 in
1982.
What is required in the so called persistent objector/dissector

doctrine is more than non-practicing the norm. Precisely it
says dissector or objector. It should be that (1st element) at
the inception of CIL meaning at a time that, that CIL
started to develop or emerge as a CIL the objector must have
already objected express its dissent to practice the norm. At
the inception meaning from the beginning, at the time it
started to develop, not when it has already emerged as CIL.
So note that the case was decided not yet under the UNCLOS
3. There is now a rule on how to compute all maritime,
territorial sea, EEZ, high seas, continental shelf. The issue is
this, for Norway, so when they computed and delimited, most
of the maritime zones were unilateral delimitation because
there was no convention. Sya ang mag decide where ang iya
extent sa iya maritime zone.
Second, (2nd Element) such objection must be

consistent all through out the years it had develop
into CIL. So a singular pronouncement that it does not
conform to a particular emerging norm which will later on
become a CIL is not sufficient. So objection must be from the
start, or from the very beginning, and must be consistent all
though out in the evolution of its norm. Third, (3rd element)
the objection must be categorical. The threshold indeed
is very high, because we are dealing here with an exception
to the rule. The rule is CIL binds all states whether the state
dislikes the norm or not that state is really bound by that CIL.
That is the principle applied in Anglo Norwegian Fisheries
Case. A state that from the outset consistently objects
(element of consistency) a particular practice is not bound by
any rule of alleged CIL which may arise from the practice.
Norway, when it delimited its baseline, ang bay instead of

following the natural configuration of a bay (letter c), ang
iyang imaginary line, gistraight niya, connecting the two
points of the bay, therefore extending further and iyang
maritime zone. It would have been shorter if iyang gifollow
ang natural configuration of the bay. And according to UK:
what youre doing is a violation of CIL.
The British argued that under CIL if the two points of the
bay have a distance of more than 10 nautical miles,
you dont draw a straight line but you have to follow
the natural configuration of the bay. It is only when
the distance between the 2 points of the mouth of the
Anglo Norwegian Fisheries Case

29

|Selfless Notes|
bay would be less than 10 nautical miles that you

would be allowed to draw a straight line. That was then
called the 10 nautical mile rule (we dont have 10 now, we
follow 12). UK argued that its a CIL. ICJ said that first, it was
not convinced that there was such CIL observing the 10
nautical mile rule. ICJ noticed that of states affected by the
norm, relevant practice is another word. Meaning all states
that have delineated their maritime zones, and states that
have bays kato ran na practice ang mo matter. According to
the ICJ the practice however in this regard has never been
uniform. Some states observe 10 nautical mile rule some
states didnt observe the said rule. But even assuming that
the 10 nautical mile rule has ripen already into a CIL, the ICJ
observe that Norway had never practiced such norm from the
very beginning. And it had of course consistently objected to
the practice of the norm. And even assuming that it was a
CIL, still Norway cannot be bound by it because ICJ
considered Norway in this kind of specific rule on delimiting
maritime or fishing zones involving bays, this rule has never
been practiced by Norway.
2. Applying Lotus case - restrictions to states

sovereignty is not presumed. International Law
deals with sovereign states. If we speak of
International
Law regulating states,
you
are
necessarily talking about limiting the exercise of
sovereignty of the states, because you are to require
states to perform a particular conduct or observe a
particular behavior. And therefore, international law
will have to limit the exercise of ones sovereignty. So
how will you deal with this? The threshold therefore is
very high. The only way to compel the state not to
perform a particular act and therefore telling the state
that such act is prohibited is when and in a way
therefore limiting the exercise of sovereignty is when
there is only:
1. Convention International Law that
there is a law based on treaty or convention.
2. CIL - prohibiting the doing of a
particular act.
And therefore in the absence of Conventional or
CIL sovereignty must not be restricted.
Fisheries Jurisdiction Case

What is important here is the pronouncement by the ICJ that
rebus sic stantibus is CIL. The outcome in this case is that
there was no valid invocation of rebus sic stantibus
because it did not involve a fundamental change in the
fishing technique. What was involved there was jurisdiction.
Lotus Case
In this case, a collision took place in the high seas. When it
took place in the high seas no particular jurisdiction will
apply. Because its a common area so no particular
jurisdiction prevails or local law becomes applicable in that
area. So that collision resulting to the death of Turkish sailor,
and the collision was between France and Turkish sailor. The
captain and the officers on board, when they reached Turkey,
they were prosecuted for the death of the Turkish Nationals.
Turkey argued that it has jurisdiction because it treated the
Turkish ship as an extension of its territory and therefore the
Principles involved.
1. General Assembly Resolutions may show the
formation of opinio juris. Even if they are not
legally binding, they have normative value.
30

|Selfless Notes|
act committed or the offense committed by the French

officers therefore were actually committed in the territory
(Extraterritoriality speaking, in the territory of Turkey).
CIL authorizing the threat or use of nuclear weapons.

There is no law authorizing.
On the other hand, is there a law prohibiting the use or
threat of nuclear weapon? It does not mean that there is
no law authorizing it, conversely it is a prohibited act. You
have to settle authorization on one hand and permission and
prohibition on the other hand. Its was 11-3. There were 3
justices who believe otherwise on the principle that there is
neither convention or CIL, any comprehensive and universal
prohibitions of the threat or use of nuclear weapons as such.
The 3 voted to say that there is at the very least a CIL
prohibiting the threat or use of nuclear weapon. But since,
it would depend on how it would be use, they said
there is none.
France argued that if there is collision in the high seas, it

should be governed by the flag state rule. Meaning, only the
flag state, where the vessel has been registered will have
jurisdiction over the persons on board. And since they were
to prosecute French nationals, they have to ask the place of
registration of the vessel. Since, it involved a French vessel
registered in France so France should exercise jurisdiction
over the offense. ICJ, however, observed that there was no
CIL yet in regard to collision cases in the high seas. And since
there was no convention yet (unlike today that we have now
the UNCLOS, we now have the rule on collision cases) and
there is no CIL prohibiting the exercise of jurisdiction for
crimes committed in the high seas, the ICJ cannot rule that
Turkey is barred from exercising jurisdiction.
They were also unanimous in saying that a threat or use of

force by means of nuclear weapons, that is contrary to
Art. II par 4 of the UN charter that fails to meet the
requirements of ART 51 is unlawful. Art II par. 4 prohibits
the use of force against the independence or territorial
integrity of another state. However that prohibition is subject
to an exception found in Art 51 that deals with individual or
collective self defense by states. Therefore you cannot read
art 2 par 4 separately from art 51. To say that use of force
may be permitted is to say that it is covered by the exception
under art 51. Thats is why it says that a threat or use of
force by means of nuclear weapons contrary to art 2 par 4
but does not fall under art 51 is unlawful.
Legality of the threat or use of the nuclear weapons Case.

Thats important here because we want to know whether we
will bar a state from using nuclear weapon or an attempt to
use nuclear weapon. If it is an advisory opinion the court will
divide the issues into several parts and in each issue they will
take a vote. They dissect the issue. This issue encompasses
several areas in international law. Such as the
Unanimous Decisions
On the principles that there is neither customary or
conventional
international
law,
any
specific
authorization of the use or threat of nuclear weapons,
unanimous ang ICJ. It means there is no convention or
They are also unanimous that the threat or use of nuclear

weapon should be compatible with international
humanitarian law and international criminal law,
under specific treaties dealing with nuclear weapons.
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|Selfless Notes|
That the use of nuclear weapons should be in accordance

with international humanitarian law is settled. But the
threshold as to when it may be permitted and allowed and
when we can say that it is in accordance with humanitarian
law they did not vote as to the threshold required because
they want to contextualize also the use, they cannot come up
with a rule without looking at the exact situation.
possible that the use of nuclear weapon may still be in

accordance with international humanitarian law. You cannot
underestimate technology at its present. Do not ever think
that science cannot tame nuclear weapon, theres still
possibility. So international law cannot come up with a rule
solely on the basis of what happened in Hiroshima and
Nagasaki. You cannot come up with a rule on the basis of the
results of that bombing by the US of Japan.
Divided Decision
Since this is just an advisory opinion it is not to dispose an
actual case, the president of the ICJ did not vote first because
they were not to decide they were to make an opinion. It was
enough for ICJ to be divided this way, equally 7-7. This was
therefore, the aspect of the use of nuclear weapon where the
ICJ was divided equally. While the threat or use of nuclear
weapons would generally be contrary to the rules of
humanitarian law, the court cannot conclude definitively,
whether it would be lawful or unlawful in an extreme
circumstance of self defense in which the very
survival of the state is at stake. We cannot make a rule
or pronouncement that it is prohibited or that it is allowed in
case of a state exercising the right of self defense in an
extreme situation where the very survival of the state is at
stake. So until now, the International Community cannot yet
resolve as to whether to prohibit the use of nuclear weapon
in such extreme cases. The UN has called upon the states to
disarm themselves of nuclear weapons but thats a different
story. There is a call for disarmament of nuclear weapons, but
in situation where there is the use of nuclear weapon in order
to defend the state or its territorial integrity, in a situation
where it is used, ICJ has not come up with a definitive ruling
whether the state will be held responsible for using nuclear
weapons. There are so many things to consider. 1. You cannot
just say that mere use is to be prohibited because it is
The ICJ was also concerned about the environment

because of the adverse consequences of the use of
nuclear weapon. Not just the immediate result of human
beings that the ICJ considers. They were also concerned
about the long term effects of nuclear weapons to our
environment. So the ICJ was undecided also, should the
right to self defense be limited because of some
environmental norm? To allow continuity of our human
race, if it is the survival of the state that is already at stake,
isnt it also being serve by the use of nuclear weapon itself?
(could be bar questions) What is the status of the use
nuclear weapon in international law? What is an
accelerated CIL? Contextualize your answer. If we are to
talk about the humanitarian law this is the answer, if you talk
about self defense this is another rule, if you talk about the
environment (the ICJ also noted the long term effect of the
use of Nuclear weapons,) and if you talk about the use of
force another answer.
In the case of France vs. Turkey ( previous case Lotus case).
Principles enunciated by PCIJ
1. Restriction upon the independence of sovereignty
of states cannot be presumed.
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|Selfless Notes|
2. Jurisdiction is territorial but international law does

not prohibit the state in exercising its jurisdiction in
its own territory over a case related to acts which
have taken place abroad or in the high seas. At the
relevant time there was no definitive rule yet on CIL
regarding collision in the high seas but in the
UNCLOS 3 Art 97 there is now a rule on collision
cases in the high seas. Rule: 1. Flag state rule. 2.
Nationality of the offender.
So it can happen therefore, that the state can exercise

jurisdiction even if the act was committed somewhere else
(abroad) but its effects are felt in that territory of the state,
then that State can exercise its jurisdiction, we call this in the
international law the Effects Doctrine. Acts committed
abroad or anywhere else even if committed in Mars if the
effects of the criminal acts are felt in a particular state that
state can exercise territorial jurisdiction. Precisely that was
the argument of Turkey, France counter argued, you cannot
claim that that is in fact the norm as oppose to our flag state
rule. You cannot say that that is really the norm. Why?
Because a lot of states had actually abstain from practicing
that. What is its normative value of states abstention
to a particular norm in the development of CIL?
(Another can be a bar question) The point is that France
said that Turkey, you cannot say that, that is really the
norm, that state can exercise territorial jurisdiction on the
basis of the Effects Doctrine ( in the past it can also be
called Objective Criminal Jurisdiction) because it has never
been practiced by many states. The next question of PCIJ was
ang ila bang pag abstain, ang wa nila pag practice) was
because of the belief that it was obligatory on their part to
refrain from practicing the norm? It was not establish. This is
negative CIL in other words. If gina abstain sya pag practice
kinahanglan ang pag abstain sad (as oppose to practicing it)
the abstention must be on the belief that abstaining on that
norm was also obligatory.
3. Abstention by some states to exercise its criminal

jurisdiction for crimes committed abroad. Does it
offer evidence of such practice of abstention
obligatory? Counter diay sa France because turkey
said that there is no CIL prohibiting the exercise of
territorial jurisdiction over offenses committed
abroad.
By the way when we study jurisdiction
later on we will learn that territorial jurisdiction may
be (kinds of territorial jurisdiction) subjective
territorial jurisdiction or objective territorial
jurisdiction. Subjective territorial jurisdiction it
means that when an offense has been committed in
one state, it had been commenced in State A for
example and consummated in another state, State
B, either state A or state B can actually exercise
territorial jurisdiction depending on which state are
we talking about. In the case of State A where the
offense had commenced, then it can exercise
territorial jurisdiction under subjective territorial
jurisdiction. State B also can exercise jurisdiction
under the objective territorial jurisdiction
because it was consummated in State B.
Clarifications:
French rule and English rule in the PHILIPPINES will not apply
to crimes committed in the high seas.
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|Selfless Notes|
Turkeys argument was that this is really practice by CIL so

France is bound to respect the norm.
France: I dont think thats really the norm because a lot of
states abstain from practicing that. So it means that its not
CIL because there were a lot of abstentions.
Follow up discussion is that lets take a look at whether this
abstention occurs because of the belief that it was obligatory
not to practice the norm. It was established that they abstain
because it was obligatory for them to abstain, then such
abstention adds to the proposition that states should not
practice criminal jurisdiction for collision cases happening
abroad. But since it was not establish that the abstention was
based on the belief that it was obligatory not to practice
criminal jurisdiction.
Principles of good faith, principles of prescription,

Akehursts explained that the preparatory works of the
international law commission in the drafting of the statute of
the ICJ particularly art 38, they did not of course intent that
these 3 should be observed or treated in a hierarchical form,
only the primary and secondary. But the intention really was
to find a solution were there may be a gap in the law when
there is for example neither conventional nor customary
international law applicable to the case. If an international
tribunal confronted with a problem when there is no treaty or
convention applicable or when there is no CIL applicable,
then it can resort to some general principles of law. And this
general principle of law can be located in the jurisdiction of
domestic courts and legal systems.
Third source of International Law General Principles

of LAw
For example, Barcelona Traction Case - ICJ said that in

the absence of applicable International law cognizance must
be given to the relevant institution of domestic law otherwise
the ICJ would lose touch of reality particularly as there are no
corresponding institutions on international law to which the
court could make reference. There is no stare decisis when
it come to ICJ decisions. Its never safe for ICJ to always refer
to its previous decisions. There is also no also formal
relationship between the ICJ and other tribunals (Hague
Permanent Court of Arbitration, or the ICC, WTO). ICJ cannot
right away rely on the decisions of other courts.
How do you distinguished general principles of law from CIL?

If you talk about CIL, then you are referring to norms develop
through state practice but general principles of law are
norms that had been practiced at the domestic level and not
applicable to states but had been applied to disputes at the
domestic level between litigants, between parties at the
domestic level but they had been applied by the ICJ in
various cases and other tribunals and in the process where
international tribunals had applied certain principles of law
originating from domestic jurisdiction, that they had
transposed a domestic principle to international law
principles. Examples : estoppel had been applied by
domestic courts in local cases involving individuals for
examples, not involving states, yet for some good reasons
international tribunals applied.
Barcelona Traction Company was registered in Canada,

(the nationality of the company si determined by the place of
registration). The nationality of this company is a Canadian
firm. It had a branch in Spain and it issued some bonds which
matured eventually. The company suffered some financial
reverses and did not want to pay all the bonds it had issued
when they become mature and payable, but Spain forced
34

|Selfless Notes|
them to pay, which resulted to the bankruptcy of the

company. The company alleged that it was wrongful on the
part of Spain to force them to pay the bonds, it alleged Spain
of having committed an internationally wrongful act and
therefore it should be held responsible. When Barcelona
traction went to Canada (you know the idea of spousal of
claim? Or diplomatic protection- if you go to the ICJ you need
your state to do it for you because you dont have the
personality, so you need diplomatic protection) Canada did
not exercise diplomatic protection, so way choice ang
Barcelona Traction. The stockholders are Belgian nationals,
majority of the stockholders, so the stockholders ask Belgium
to exercise diplomatic protection for and in their behalf. So
the issue was whether Belgium had the personality to
sue Spain on the basis of the nationality of the
stockholders? The ICJ ruled that similar to domestic
corporations in our domestic jurisdiction, the corporation has
its own personality separate from the stockholders, so it was
therefore, incumbent upon Canada to exercise diplomatic
protection because the damage was to the company, to the
corporation and not to the stockholders. That principle is
domestic principle but applied by the ICJ at international
level. That is an example of domestic law being transposed
to international law as part of the general principles of law.
Student: The General Principles of Law are those principles

that under the domestic law are those that the judges use in
order to justify their decisions.
Sir: How come it becomes a source of PIL if these are
principles use by judges under domestic level? What is
the travaux preparatoires of General Principles of
Law? Why the International Law? Why did the
International Law Commission decide on having a
general principles of law as source of international
law?
Student: Because these principles that are usually found in
the municipal level are those common in the legal system in
the world.
Sir: Yeah, but that does not answer the question why the ILC
decided that it is a source of PIL in the form of General
Principles of Law. We already have conventional law, the 1 st
primary source and then, we also have customary
international law, what is the travaux preparatoires there?
Sir: The international law commission found it necessary to
put a third source of public international law because they
conceded, I mean the members, a special [] to
international law commission, conceded that there are
controversies or there may be controversies where no
conventional or customary international law may be applied
squarely or categorically to a particular issue. Correct?
VII
Sir: When we are talking about the 3 rd primary source of
Public International Law, recall the General Principles of Law
And so, as matter of practice by International tribunals, some

principle of law, that had their origin at the domestic level,
had actually been transposed into source of international law
where they have been applied in certain cases. Especially
What again is your understanding General Principles

of Law as a source of PIL?
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|Selfless Notes|
when there is no conventional or customary international

applicable to the case. Yes?
Student: Yes, that neither of the party should do something

to violate the treaty. Subsequently, Netherlands, constructed
a canal, (Juliana canal). Since Netherland on that matter
violate the treaty, so despite of the protest of Belgium,
Netherland continue constructing. Belgium now also
constructed a canal of their own because the result of the
construction of Netherlands somewhat obstruct the water or
more water coming out.
So, I think we mentioned about the Barcelona Traction Case,

the issue was whether Belgium could properly exercise
diplomatic protection for and in behalf of the Belgian stock
holders of Barcelona Traction. You remember the ruling of
the court?
Student: Yes sir. The Court said that it ..
The Netherlands complain.
Sir: The Court said, since the cause of action was really a
cause of action that pertains to the company or corporation.
It should be the nationality of the corporation itself that
should be controlling. And since Barcelona Traction was
registered in Canada, it should have been Canada which
would espouse the claim or exercise diplomatic protection.
Sir: Did the ICJ rule on the merit of the complain?

Student: No sir.
Sir: No, because what principle of law was applied that allow
ICJ to dispose the case without resolving the merits?
Student: Estoppel?
Because while the stock holders were injured by the act of

Spain, the injury was only indirect, and the injury that was
direct pertain actually to the corporation. So, Belgium
improperly exercise diplomatic protection.
Sir: Yes, estoppel. But in what particular? That one that goes
to court he must come to court with clean hands. We call that
the CLEAN HANDS DOCTRINE.
What about in the case of River Meuse Case?
A general principle of law also applicable at the domestic

level. The clean hands doctrine was applied. More often than
not, just to find a way not to resolve the case, this can be
applied.
What general principle of law was applied?

Sir: Netherlands and Belgium agreed on how to manage/
administer the River Meuse that of course pass through
Netherland and Belgium, what happened there?
Now, you have encountered in your readings the concept of

soft law, right?
Student: Netherlands here entered into an agreement with

Belgium in order to delimit themselves from making another
construction that would divert the flow of the water.
What is your understanding of this soft law? How is it

distinguish from hard law?
Student: Soft law are those things that generally are not
binding because it does not have in itself the consent of the
states.
Sir: It was a reciprocal treaty, correct?

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|Selfless Notes|
Sir: The lack of consent that makes a soft law distinguishable

from hard law?
simply to declare that a legislation contravenes the mandate

of the UDHR.
The Universal Declaration of Human Rights, is it soft law or

hard law?
But of course, the court cannot say, that it is an invalid law

and therefore, one should be exempt from obeying. That is
also a problem in international law because even if
international human rights courts will declare that it is
against a soft law like UDHR, the only way that it can be
considered as null and void at the domestic level is for its
own court to declare that in indeed it is against the UDHR.
Student: Soft Law

Sir: You can categorize it as soft law, but Im sure it had been
ratified by almost all members of the United Nations. Whats
the relevance of consent? Still soft law but ratified.
Good if its own SC will agree with the international tribunal

that its own Congress violated the UDHR and it will nullify the
law. But what if it will not nullify the law?
Soft law are indeed principles of law that are not meant to be
legally binding in the sense that invoking it would
automatically render or rather would charge another state
responsible. However, not also totally irrelevant, because
there is a normative value of a soft law.
Bar Exam Question: What are soft laws and hard laws?
How do you distinguish?
Most soft laws are meant to be mere declarations of

principles but become hard laws when they are applied
domestically, enforced by the state domestically.
Of course hard laws are readily enforceable principles of

international law.
We have for example the Universal Declaration of Human

Rights, there is a list of human rights principle.
Soft laws are not readily enforceable, usually they are

dependent upon the implementation, usually through
legislation by the states themselves.
But until and unless, these human rights principles are

implemented at the domestic level, of course, through
relevant legislations, you cannot say that a particular
individual has violated the UDHR, but instead you would say
because of the UDHR, this RA 12345 has been enacted,
when one violates this statute, then the violation would be
against the statute and not with the UDHR.
It doesnt mean soft laws are totally irrelevant. You remember

your article 2 of 1987 Consti?
You were ask these are not self-executing provisions? Yet we
learned that while they are not self-executing provisions, they
serve important purposes.
What is the normative value of PIL? How do you response if
asked in the BAR.
But of course, validity of statute would also be tested, on the

basis of UDHR. But the problem however, is that being in a
horizontal system, the most that human rights courts do will
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|Selfless Notes|
It could be guidelines for our legislative assemblies as to the

kind of laws that will be pass and that the law should be in
line with the mandate of these soft laws.
The principle of non liquet, implies equity is applied as a

general principle of law in the absence of conventional or
customary international law.
It is also useful for the Executive Department. When the

executive implements certain statute then it will be guided
by principles also found in soft laws. It can be the executive
also mandate to observe our officials of existing soft laws or
conventions that are soft laws in character.
So, that is the 3 rd primary source, that equity as a general

principle of law is actually from this principle of non liquet.
But if you apply equity under the concept of ex aequo et
bono, it does not contemplate of a situation where that here
is neither customary international law nor conventional law
applicable, precisely the requirement that the parties should
agree there to. This presupposes that actually there is
conventional or customary international law applicable.
It will also guide our supreme court, many times, the SC had
applied provisions of the UDHR, ICCPR. That is also another
utility of soft laws although they are really legally binding.
They will guide judicial reasoning. How the court reasons in a
particular controversy.
You see if there are conventional or customary international

law applicable, the court is mandated to apply the existing
conventional or customary international law.
Now, lets talk about equity, it is a General Principle of Law,

so equity can be a source of international law as a general
principle of law. But there is also such thing as the Principle
of ex aequo et bono where equity is also applied.
But the parties agreed NO, we feel because of some

fundamental changes or important supervening events, that
the application of customary international law or
conventional law, may not be actually fair to both parties.
So distinguish equity as a general principle of law and equity

as applied by the ICJ ex aequo et bono?
So, they are willing to agree, ok we will just submit it to the

court, that equity will be applied in the decision, never mind
applicable rules. THATS EX AEQUO ET BONO. Precisely the
requirement that parties must agree to that application of EX
AEQUO ET BONO.
Student: Di ma klaro.. sorry

Sir: Did you read Article 38 (2)of the ICJ Statute?
2. This provision shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto.
Now, you should be able to distinguish between Non liquet

and ex aequo et bono.
Sir: You know the English term of ex aequo et bono? It

means a decision in which equity overrides existing rules or
overrides all other rules.
So, what does it suggests?
Sir: Then there is also the importance to distinguish between

custom and comity or usage.
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|Selfless Notes|
What distinguish from one with the other is the absence of

opinion juris sive necessitatis.
It can be viewed as, qualifying status of a particular norm or

you can mention of jus cogens norm as the norm that will
invalidate the treaty provisions.
So, in CIL, the example here is state immunity from suit.

Comity, simply practice of states not because of the belief
that this practice is legally binding but on mostly for
convenience. E.x. Alternat
In fact under article 53 of the VCLT, that is where you will find
the jus cogens norm. It enumerated the grounds that will
invalidate a treaty. One of which is, the violation of
peremptory norm or non derogable norm.
In the signing of a treaty, we are operating under the

principle of co-equality, it is also a question in the signing of
treaties, which state should appear first in the list. Is it
alphabetical, or from developing to developed, v.v. etc
Article 53. TREATIES CONFLICTING WITH A PEREMPTORY

NORM
OF GENERAL INTERNATIONAL LAW ("JUS COGENS")
The ALTERNAT has been adopted in treaty signing. This

means that, for example, we are all the designated
representatives of our states, we are no to sign the treaty, in
a conference, each one of us will go home with our own copy
of the treaty because it will be ratified.
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 in
ternational law having the same character.
What will appear in your copy, is that your state appears first
in your copy. In that sense we are equal, that is alternat. But
of course that is just for convenience. It does not provide for
a specific rule of conduct actually. We can or cant follow it.
What makes jus cogens non derogable?

Another important point we need to talk about, is
there a hierarchy in the sources of PIL?
Jus cogens can actually be changed, can be set aside but that
would require another norm of similar character, meaning it
should also be in that kind of norm, similar to a jus cogens
norm.
What it had been agreed upon is the primary sources and

subsidiary sources.
We have already learned the meaning of primary and
secondary. But one thing is definite, this such norm that
stands out, which means it will prevail over all other sources,
is JUS COGENS NORM.
Non derogable means, remember International law is divided

into at least 3 regimes, laws of peace, war and neutrality.
When a norm is applicable in either of these regimes,
because the idea here is when you apply the law of peace
during peace time and then war breaks out, generally, a new
regime is applied to the conflict.
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|Selfless Notes|
lex specialis derogate legi generali special prevails over

general law.
So, not all, but most laws of peace cannot be applied during
times of war. But if the norm exist in both times then that is a
norm that is never derogable.
One final point, we have been talking about jus cogens, you
have encountered the principle of erga omnes norm.
Example, GENOCIDE, prohibited during peace and war time.

In fact it is a war crime under the Rome Statute.
Other ex: torture
What is the relation of jus cogens and erga omnes norm?

Student: [di ma klaro sorry..]
Jus cogens- is the norm,
While there is no clear pronouncement that there should be a

hierarchy we should observe, jus cogens is definitely cannot
be least among all others.
Erga omnes duty to promote or abide to that norm, not

only to prohibit but to actively prosecute
But if you are to come up with an argument, whether you

prefer conventional as more of a persuasive norm compared
to customary international law. What argument can you
advance?
Have you encountered erga omnes inter partes? How do you

distinguish it from general erga omnes?
Sir: Erga omnes norm becomes the duty towards the
international community in general with no specific state
whose rights are to be promoted by the exercise of the duty.
Or which do you think should prevail in case of conflict?

Conventional or customary?
Erga omnes inter partes norm, it is a more specific kind of

erga omnes because the exercise of the duty, is address
towards protecting, promoting a specific right of specific
states.
Student: [Sorry not clear]

Sir: CIL even applies to non-observers unless they qualify as
persistent objectors. Even those who doesnt like CIL and do
not qualify as persistent objectors, they are also bound by CIL
whereas a treaty is binding only between parties, this
presupposes also that a treaty does not partake a CIL purely
conventional.
Example: one state has a need for environmental protection

because of some endangered species in a particular state.
Then it may be a duty of all other state promote or conserve
the environment and therefore prohibit acts that will violate
the rights of the state.
Akehurst also, discussed about the applications of statutory

construction.
So the performance of that duty is not a duty towards the

entire international community but only to address a specific
right of one state.
Lex posterior derogat legi priori, a later law prevails over an

earlier law.
Usually exercise between co-parties to a convention.

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|Selfless Notes|
VIII
Philippine Practice
Remember your Ichong vs. Hernandez case, the treaties

when duly ratified by the President and concurred by the
Senate they become part of our legal system similar to the
statute we already have.
Sec. 2, Art. II, 1987 Philippine Constitution
Treaties therefore partake of the nature of a statue.
Section 2. The Philippines renounces war as an instrument

of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation,
and amity with all nations.
Almost all principles can become part of the law of the land.
GAPlL through incorporation, non- GAPIL through the
treaties.
Continuation on Sources of PIL
By transformation, it can be done many ways,

1. Congress will enact laws by simply copying a treaty or
a convention regardless of the nature of that principle
of international law, whether GAPIL or not, it does not
matter since Congress anyway has transform the
principle of international law as part of the law of the
land by legislation. That is the most common way.
2. The other is by executive action, president, for
example it pertains to executive functions, like the
practices on detention, arrest, investigation. If there
are certain practices about it.
3. The Judiciary, only by a decision of our SC. Under civil
law, only SC decisions, become law of the land.
Sir: This has been known as the INCORPORATION CLAUSE.

2 methods of making PIL part of the law of the land:
1. By way of incorporation
2. By way of transformation
In PH, how?
Front Door through incorporation.
We can also adopt a principle of international law that does
not partake of a nature generally accepted principle of
international law through treaties that is the back door in the
sense that even if it is not a generally accepted principle of
international law and since the Philippines will become bound
to that treaty or convention which involves a norm or rule
that is not General Accepted Principles of International Law
(GAPIL) still the Philippines is bound then you have an
international law principle entering our legal system through
the concurrence by the Senate of the ratification made by
the President of that Treaty.
If asked in the BAR exam, how may international law

become part of the law of the land, you should mention
both.
Kuroda v. Jalandoni
The government created a military commission to
prosecute certain officials, japanese military commanders
of war crimes, the ability of the state to prosecute
individuals for war crimes must have been because
41

|Selfless Notes|
certain war crimes has been defiend by the Hague and

Geneva Convention as punishable, the problem there was
the Philippines was not a signatory to the Hague
Convention at that time. SO, the creation of that military
commission was questioned. How can the Philippines
create a military commission, authorize that commission
to prosecute someone for war crimes and the basis or
source of that authority supposed to be the Hague
Convention and PH is not a party.
However if the state involves filing of a suit in PH court

against a foreign state that is where you apply the
principle of par in parem non habet imperium because
there is now the foreign element and therefore you are
looking at a situation where PH court and therefore PH
state will be asked to exercise power over that foreign
state. The Philippines cannot do that w/o the consent of
the other state.
You know state immunity from suit while it is a generally
principle of international law, in fact customary
international law, another aspect of that discussion.
SC said, there is no need for the PH to be party to that

convention for purposes of prosecuting military officials of
war crimes because the provision of the Hague and
Geneva Convention partakes or based on generally
accepted principles of international law applying
incorporation clause they for part of the law the land.
Another principle of CIL is the need to distinguish between

2 functions of a state in entering into contracts.
US vs Guinto, US vs Ruiz, state immunity from suit. The

principle involve there is par in parem non habet
imperium states are co- equal and therefore no can
exercise jurisdiction over the other.
Between jure imperii (governmental functions) and

between jure gestionis (proprietary functions) Why is that
important?
It is important to know the function involve because in IL
the principle of state immunity from suit becomes
relevant only where the function involve is jure imperii,
therefore when the function involve is jure gestionis then
the principle of state immunity from suit will not come
into play.
Because if one exercises jurisdiction over the other, then

it diminishes the equality principle between and among
states.
Remember if we talk about state immunity from suit in
international law, we are not dealing here with a situation
where a case is filed in PH court against the Philippine
state.
Note in Consti 1, remember the principle when the state

enters into a contract it descended to the level of a
private individual and cannot anymore therefore invoke
the privilege of state immunity from suit.
State immunity are divided into 2 kinds, there are cases

involve a suit against the Philippine state in PH courts we
dont apply the principle par in parem non habet
imperium because no foreign state is involve.
Privilege of Royal Dishonesty
42

|Selfless Notes|
There is a need to clarify that because under our law we

have a commonwealth act amended by 2 more PDs
involving money claims arising out from contracts. Money
claims ex contractu, if you are the claimant you have
money claims against the government, how do you claim?
function then it can properly invoke state immunity from

suit. That is a well recognize principle of IL.
The principle that the state has descended to the level of
an individual when it enters into a commercial contract.
However, because of the need for states to cooperate and
in view of significant global interactions between states
especially on the area of trade and commerce and
finance.
Do you distinguish between contracts entered into

in jure imperii and jure gestionis?
No, our government, has already consented to be sued
when the money claim is based on contract. Where will
you go? To COA.
States have entered into treaties where they have already

waived the right to invoke state immunity from suit in
certain cases involving foreign investors.
What do you expect from COA, it will decide to reject or

accept your claim. COA is given 60 days. After the laps of
60 days and t he COA will reject. That is when you go to
the regular court.
So, the study of state immunity from suit, we have to

study also along ICSID framework. There is this
International Center for Settlement of Investment Dispute.
So members of the World Bank and those signified
became parties there around 159. Allow foreign investors
to directly initiate a suit for arbitration and conciliation
involving disputes against states.
But if this involve a foreign state, X files a case for

damages, Phil Vet. Assoc. Case, state immunity from suit
becomes relevant if it involves either, one, claim for
money like claim for damages and second, property of not
money.
Instead of invoking state immunity from this situation, the

consent is already given because of the ICSID framework.
No permanent court or tribunal. ICSID will facilitate the
assignment to an accredited arbitral tribunal. Like
Permanent Court of Tribunal.
Not all claims are within the purview of discussion

paradigm on state immunity from suit, only those claims
that will require the state to perform, that positive or
affirmative act of releasing from the public treasury,
public funds or public property.
In the BAR, what is the importance of the ICSID framework

in the doctrine of state immunity from suit.
If that is the situation, you file a case against the PH

government and its money claims arising from contracts,
we have a law that allows the case to progress but it
involves a foreign state, at 1st instance can already make
a claim that when the function involves a governmental
In Reyes v. Bagatsing, this case involves a conflict

between the suppose exercise of the freedom of
expression by our own citizen and the duty of the
Philippine state of a diplomatic mission like US embassy.
43

|Selfless Notes|
The demonstrators rallied from Luneta towards the gate

or near the US embassy to conduct some protest, they
were barred from doing so because of the policy of
conducting beyond 500 meters. That policy was
questioned as violation of the freedom of expression.
1. For the purposes of the present Convention:

(a) "Treaty" means an international agreement concluded
between States in written form and governed by
international law, whether embodied in a single instrument
or in two or more related instruments and whatever its
particular designation;
SC noted that on the contrary, it is an act complying of

the mandate of the Vienna Convention on Diplomatic
Relations which it reflects CIL. The duty to protect the
premises of diplomatic missions is part of CIL. Freedom of
expression here is simply regulated not suppress.
Indeed it is a misnomer, usually we are asked what is treaty

we looked for a definition in a convention.
The Vienna Convention on the law of treaties would give us a
definition of a treaty but that definition under the ILC travaux
preparatoires simply means it is a definition of that kind of
treaty which will be governed by the VCLT.
LAW ON TREATIES
First, we need to distinguish terms that have been used
by some interchangeably but should actually be
distinguish.
It is not a definition of what a treaty is but it simply means

that a treaty for purposes of the VCLT means that an
international agreement concluded between States in written
form and governed by international law, whether embodied
in a single instrument or in two or more related instruments
and whatever its particular designation; and to be governed
by the international law regardless of the name or phrase
given.
The law of treaties must be distinguished from treaty law.

Treaty Law, we are talking about the substantive content
of a treaty in relation to a particular subject matter. Ex.
What is the treaty law on genocide? We have a particular
treaty of Genocide.
The Law of Treaties, we are talking about that regime that
governs formation of treaty, effectiveness of treaty, validity
of treaties, withdrawal, suspension, termination and many
other aspect of treaty-making and treaty-executing
procedures.
What it means therefore is any treaty that is not entered into

between states will have to be governed by another regime,
there is a regime between treaties entered into between
states and international organizations and between and
among international organizations.
What we will be studying is the larger regime on the law of

treaties.
A treaty for purposes of the application of the 1969 VCLT

means an international agreement concluded between
States in written form and governed by international law,
whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation;
What is a treaty?
Art. 2, 1 (a) of VCLT:
44

|Selfless Notes|
There are treaties

agreements.
in
generic
term
or
international
but it does not mean it is not binding. It is still binding

between the parties concerned.
In the 1966 ILC commentaries, it was explained, the 1969

VCLT is a codification of CIL on treaties. It codifies CIL on
treaties that had been practice by states before 1969. Like
pacta sunt servanda, rebus sic stantibus, they existed before
the 1969 VCLT.
IX
May the rules found in the VCLT be applied in the ff:
1.)A dispute involving a treaty between State A and
IMF World Bank (International Org.)
Because of the peculiarities of IL, they decided to separate

treaties entered into by states and non-state actors for
simplified rules and convenience. If you look at article 3 of
VCLT:
The term treaty can actually be used to any international

agreement entered into by international persons or entities
excluding
of
course
individuals
so
international
organizations can be parties to a treaty
Article 3. INTERNATIONAL AGREEMENTS NOT WITHIN

THE SCOPEOF THE PRESENT CONVENTION
"Treaty" means an international agreement concluded

between States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments and
whatever its particular designation (Article 2, VCLT).
The fact that the present Convention does not apply to

international agreements concluded between States and
other subjects of international law or between such
other subjects of international law, or to international
agreements not in written form, shall not affect:
The only significance of the phrase concluded

between states in the definition of a treaty in the 1969
VCLT is only for the purpose of applying the provisions
of the VCLT.
(a) The legal force of such agreements;

(b) The application to them of any of the rules set forth in the
present Convention to which they would be subject under
international law independently of the Convention;
(c) The application of the Convention to the relations of
States as between themselves under international
agreements to which other subjects of international law are
also parties.
So all other treaties that are not within the definition of

a treaty under VCLT will be governed by other regime
including customary international law on treaties and
of course other regimes.
The present Convention applies to any treaty which is
the constituent instrument of an international
organization and to any treaty adopted within an
international organization without prejudice to any
Calling it a treaty is one thing, calling it as binding is another.

Even if it is oral it might not be considered treaty for
purposes of the VCLT because in VCLT it requires in writing
45

|Selfless Notes|
relevant rules of the organization. (Article 5,

VCLT).
2.)A dispute involving 1960 Treaty between State A

and State B
WTO, there are parties to the WTO if let say all SEA
members of the WTO will enter into a particular treaty
dealing with a product peculiar only to the South East
Asian Nation, unsa kaha na? banana [.] That
particular treaty may be governed by the relevant
provisions of the WTO itself. So you notice that there
are voting requirements for example for the adoption
of the treaty. That may be governed not by the VCLT
but by the relevant provisions of the organization. A
treaty may be governed by another regime in other
words. Not necessarily by the VCLT.
Way problema puro man ni states. Let us assume in

writing siya, let us assume further that both States
intended the treaty to be governed by international
law. The concern now is the date when this was
entered into by States A and B. It was entered into
before the effectivity or before the VCLT entered into
force in 1980. Very simple question, sir if the rule that
were talking about partakes of the nature of CIL then
that rule will still be applied to that treaty even if there
is a principle on non-retroactivity on Article 4 of the
VCLT. The VCLT shall be applied only to treaties that
have entered into force or rather that have been
enacted upon the entry into force of the VCLT. Non
retroactivity of the present convention without
prejudice to the application of any rules set forth in the
present convention to which treaties will be subject
under international law independently of the
convention.
The use of the term treaty therefore is proper in

this case even if it is entered into by State A and
the IMF World Bank which is an intl org.
Article 62 of the VCLT thats fundamental change of
circumstance. You know that Rebus Sic Stantibus is the
precursor to the fundamental change of the
circumstance principle is a rule on the law treaties and
a CIL.
Non-Retroactivity of the Present Convention.

Without prejudice to the application of any rules set
forth in the present Convention to which treaties would
be subject under international law independently of
the Convention, the Convention applies only to treaties
which are concluded by States after the entry into
force of the present Convention with regard to such
States (Article 4, VCLT).
So may State A insist that the provisions of this

treaty between State A and IMF world bank will
be suspended because of some fundamental
changes in the circumstance?
Well if the elements are present then that principle
may be applied. So even if we are talking about an
international organization because we are not applying
the rule of the VCLT as a rule of VCLT but as a principle
of law.
So if we apply for example, of course I am sure in any

international agreement okay both states will have to
be governed by the principle of pacta sunt servanda
noh that the treaty must be complied with in good
46

|Selfless Notes|
faith. A breach of a treaty will engage State

Responsibility for which reason the breaching, not
bretch, State will have to be liable for some forms of
compensation or any other scope of responsibility
even if this was concluded before the VCLT. It is
international law in general that is applied in this kind
of treaty.
(b) The application to them of any of the rules

set forth in the present Convention to which
they would be subject under international law
independently of the Convention;
(c) The application of the Convention to the
relations of States as between themselves under
international agreements to which other
subjects of international law are also parties.
(Article 3, VCLT)
3.)A dispute involving a 1995 treaty between State A

and State B which are not parties to the VCLT, so
this was concluded already at the time the VCLT
entered into force but of course they are not
parties to the VCLT.
The only conclusion here is that this kind of treaty

because it is not in writing will not be governed by the
VCLT. So if State parties or a state party to a treaty for
example would want to withdraw from the treaty it
cannot invoke the grounds provided for in the VCLT
because it cannot invoke the VCLT. Because the VCLT
does not apply. Not unless the ground for withdrawal
partakes of the nature of CIL.
Same answer if the rule that you are talking about is

CIL it is still applicable to the States even if they are
non parties to the VCLT.
4.)Is an agreement which has the nature of a treaty
but is not reduced to writing a treaty? Is it binding
to state parties to the agreement?
However, is it binding?
If you look at Article 3, treaties that do not conform

with the definition of a treaty under the VCLT may
however be binding.
Article 3 says the fact that the international agreement

does not conform to the definition of a treaty under
the VLCT will not affect the legal force of such
agreement.
The fact that the present Convention does not apply to

international agreements concluded between States
and other subjects of international law or between
such other subjects of international law, or to
international agreements not in written form, shall not
affect:
In the Bahrain Qatar Case for example, it did not follow

the required form of a treaty because it was just
actually Minutes of the Exchanges or the Discussion
between representatives of Bahrain and Qatar but
which of course was signed by the representatives.
NOT treaty under the VCLT but considered binding.
(a) The legal force of such agreements;
5.)Australia entered into an agreement with the

Philippines stipulating that Australia Naval Forces
47

|Selfless Notes|
will lease Phil. Government patrimonial property in

Subic for its Naval and Military Exercises in the
Phils. for 5 years in the amount of 10 million. Is this
a treaty?
is not operating under the principle of

reciprocity. If it is a law making treaty State A is
really bound to perform the obligations under
the treaty regardless of WON the other party
performs its own. Otherwise if the performance
of the obligation by the one party would depend
largely on the performance also of the obligation
appurtenant to the other party then there is this
principle of reciprocity applied to the treaty. In
most cases if there is reciprocity for the
performance of obligation. The obligation is
dependent upon the performance of the other
partys obligations then it is more or less a
contract treaty.
I think the better questions is Is this a treaty under

the VCLT? Lets say that this is in writing between
states, it is an international agreement. Whats the
fourth element? To be governed by international law.
So we ask the question, is this a kind of treaty that is
to be governed by international law or any other
regime? Of course the other regime other than
international law, that would be the domestic law.
If you look at the nature of the agreement it seems like
that this is more of a contract than a treaty. So this
partakes of a nature of what international law calls
Contract Treaty in a way, why? What are the
characteristics of contract treaties as opposed to law
making treaties which can therefore be sources of
international law and contract treaty shouldnt be
treated as generating a conduct that will form as basis
for CIL.
Well of course we still have to check whats

inside the agreement whether it will be
governed by international law or contract law?
In this cases the law on lease. So obligations
and contracts ang applicable in this case not
unless if the parties have intended that this
agreement be governed by international law.
Now if it will be governed by IL unsa nga
international law applicable to the lease of
foreign territory not unless this involves
environmental concerns. So more or less this is
to be governed by municipal law and then. It is
not a treaty under the VCLT if you are going to
rephrase the question to is this a treaty under
the VCLT
Distinction between Contract Treaty and Law

making Treaty
Most lawmaking treaties are more or less
permanent in character whereas contract treaty
on the other hand is more or less temporary.
A law making treaty binds or demands from a
party to a treaty the performance of an act or
conduct regardless of the performance of the
obligation of the other party. IOW, more or less it
6.)What is the difference between a signatory to a

party to a treaty?
a.) As to meaning
48

|Selfless Notes|
b.) As to obligation
will already amount to a

instrument. It is very seldom.
What is the difference between a concluded

treaty and a treaty that had entered into
force?
legally
binding
Ratification
What is the purpose of ratification? What do you mean
by a treaty is ratified?
* A signatory to a treaty will have a different

obligation from a party to a treaty. There is also
a variance in the way a signatory will withdraw
from the treaty and where a party withdraws
from a treaty.
In the Philippines for example, who ratifies our treaties?

Under EO 459 The president. Whats the role of the Senate?
Concurs with the ratification. In some jurisdictions, they dont
provide for that mechanism. The only exception where
ratification may not be required any further probably will go
straight to concurrence is when it is the president himself
who signs the treaty but more often than not the president
does not go to a conference and sign the treaty. The
president will simply send a representative.
A.) As to meaning/definition
a signatory to a treaty is one who has or which
has of course signed that treaty other term in
Continental-European language is signalled .
a PARTY is one who is already bound by
the treaty while a signatory is simply one
which has signed the treaty but not yet
bound by the substantive provisions of the
treaty.
Ratification enables the head of state or whoever is

empowered to enter into treaties the opportunity to inquire
into the scope of the authority exercised by the
representative for example if the representative was
authorized to sign a treaty for let say 50 years but the
representatives signed a treaty for 99 years.
Signature is just a possible expression of

consent to be bound. See article 12 for ways to
express consent to be bound. One way of
expressing consent to be bound remember that
its not that the state is already bound it is
simply an expression of consent to be bound.
Most common way of expressing consent to be
bound is Signature. Normally a mere signature
will not yet bind a party to the treaty because of
the practice of domestic ratification not unless
the treaty itself provides that the signature itself
Or lets say the representative was authorized under its full

powers in french it is called plaines pervau. If the authority is
to enter into a treaty in a particular industry lets say
automotive industry, nya gipang apil ang uban industry not
covered by the authority so the president has still the
opportunity to check the exercise of the power of the
representative whether it is in accordance with the authority
given.
49

|Selfless Notes|
It is very important because at the end of the day

treaty making is the power of the president not by the
representative.
Americans mmm para kita pa hilas2 ta ug Jus Sanguinis

murag mga gwapo diba.. kanang mag Jus Sanguinis katu ra
nang mga gwapo kaayo nga nihit kaayo ug mga itsura.
It also enables of course the state concerned to ponder

further on its decision whether or not it will be bound by the
treaty.
So 2 years after US withdrew their signature because

of the prevailing sentiment. Thats the purpose of
ratification. So what Im trying to say is a PARTY is one
who is already bound by the treaty while a signatory is
simply one which has signed the treaty but not yet
bound by the substantive provisions of the treaty.
So the time from Signature until Entry into force of the

treaty will also give enough time for the leaders to consider
whether or not it will be bound by the treaty with finality.
Kanus.a mag entry into force kung binding na

ang treaty?
So for example, the case of the US when it signed the

Rome Statute creating the International Criminal Court in
year 2000 the senate, congress in general, conducted several
series of discussions, debates and the prevailing sentiment
then that only by ahhh..wait Rome statue creating the ICC,
individuals may be charged with certain international crimes.
Under the Rome Statute pwede ka charge.an ug genocide,
war crimes, crimes against humanity and acts of aggression
unya one of the very controversial provisions in the ICC is the
compulsory surrender of individuals made respondent in the
ICC. so kung party ka sa Rome Statue or ICC you are bound
by the ICC to surrender individual charged before the ICC and
found in your territory.
It depends on the text of the treaty. In most cases the

treaty will say. After the signature the treaty will
undergo the process of domestic ratification. Upon the
submission of a particular member state. For example
mu ingun siya ug Upon the submission of the 60 th
instrument of ratification, the treaty will now enter into
force
IOW, lets say nag sign ta ug treaty kita tanan mga
representatives. Nag sign tag treaty pag 2000 and
then we provided in our text of the treaty that this
treaty after having been signed by all the negotiating
states will enter into force upon the submission of the
instrument of ratification by the lets say 20th
signatory.
Example: So if Former General Juan dela Cruz is being

charged for war crime and found in the Philippines, the Phils.
being a party to the Rome Statute is bound to surrender
General Juan dela Cruz. Dili man ana ang US because ingun
ang US but anywhere you go in the world you will see
Americans kahibaw na ka anang America conglomeration
man na of so many races Asians, Black Americans, White,
(Brunettes? #uhuh) so anywhere you go. Its easy to become
an American citizen because of the Jus soli principle of
Example si Mr. Gocuan ni deposit sa iyang instrument

of ratification on 2005. So from 2000-20005 wala pa ni
enter into force ang treaty even if nag una ka pag
2000. Wala pa na ni enter into force as nimu wala pa.
kay we are waiting for the 20 th instrument of
50

|Selfless Notes|
ratification pag abot sa 20 th instrument of ratification

mu enter into force na siya kay mao may naka butang
sa treaty.
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.
If wala pa ni enter into force dili pa na sya legally

binding nga instrument.
B.) As to Obligation
Whats the difference between a signatory
from party insofar as obligation is concerned?
Kung ni sign ka but wala pa ka ni ratify, are you
already bound by the substantive content of the
treaty? Answer: If a state is a signatory to a treaty
that state is NOT YET bound by the substantive
content of the treaty. If the treaty has entered into
force, the party will now be bound by the
substantive content of the treaty.
Even if the treaty has not yet entered into force

all negotiating states are bound to refrain from
performing acts which would defeat the object and
purpose of a treaty. Pag sign pa lang sa treaty mu
apply na ang article 18.
Article 18 is an example of a CIL codified. The
reason for this is It is customary practice of states that
when they have already signed the treaty and while
waiting for the time that it will enter into force they
must act in good faith because of the principle that
when we negotiate for the terms and conditions of the
treaty we should negotiate in good faith as well. So the
idea of good faith also is important in the whole
process of treaty formation.
But that does not mean that there is no

obligation at all on the part of the signatory
because of Article 18 of the VCLT.
Article 18. OBLIGATION NOT TO DEFEAT THE
OBJECT AND PURPOSE OF A TREATY PRIOR TO
ITS ENTRY INTO FORCE
An act violates article 18 if the act already

renders
the
party
concerned
incapable
of
performing the obligation under that treaty
when that treaty will enter into force (by Anthony
Aust).
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
So the basis of state responsibility is not

violation of the treaty because it has not yet entered
into force but it is a violation of the CIL of negotiating
in good faith as found in Article 18 of the VCLT.
51

|Selfless Notes|
Remember this is CIL and therefore this is binding

even to non parties to the VCLT.
Formation of treaties
1.)Proposal to draft a treaty
Example: States A and B entered into a treaty

whereby State A will cede a portion of its territory but
the treaty has not yet entered into force but State A
nonetheless in the meantime cede the same territory
to a third state so by the time that treaty between
State A and State B will enter into force wala na siyay
ma cede kay gi cede naman niya earlier. So there is
inability to perform the obligation.
can be done
Governmental
Organizations.
by: States, International NonOrganizations,

Governmental
can be done by States--- two ways: in a bilateral

treaty, both states can seat together and draft the
treaty, or one state already drafted the treaty
subject only to the signature of the other state of
course after it had studied it.
THRESHOLD: if that act will render the State

incapable of performing the obligation under the
treaty.
can be done by international non-governmental

organization
Example of an act that will NOT necessarily

defeat the object and purpose of the treaty? Lets go
back to the Kyoto protocol example, all developed
states 1-10 under annex A signed but the treaty has
not yet entered into force in the meantime instead of
reducing gas emissions nag increase na nuon sila nag
hyper industrialize na nuon sila so instead of lowering
nag increase sila. Is that a violation of the CIL on
negotiating in good faith? So the threshold .. capable
paman siya to reduce by 20 percent in the next ten
years iya lang gi taas daan nagpa tukod na siya ug
daghan nga mga factories knowing that by the time
the treaty will enter into force it is now bound to
reduce its gas emission.
EX. 1949 Geneva Convention had been drafted

because of the efforts of an NGO, guess the
international org.. International Committee
on Red Cross leading to the drafting of one of
the important conventions regulating armed
conflict the 4 Geneva Convention.
can be done by a governmental organization like
the UN (convention: initiated by the UN).
2.)Negotiation
Having studied obligations and contracts, you
know that there are different stages in the
formation of a contract, diba dunay preparatory
stage, dunay negotiation, and then you have
perfection, and then you have consummation
and then next litigation (hahaha)
If the treaty has entered into force, the party

will now be bound by the substantive content of
the treaty.
Whats the relevance of negotiation?

52

|Selfless Notes|
To know the intent of the parties. Preparatory

Works. Article 31 -33 Method of interpretation.
(see VCLT)
Article
32.
INTERPRETATION
SUPPLEMENTARY
Article 12. CONSENT TO BE BOUND BY A TR

EXPRESSED BY SIGNATURE
MEANS
OF
Recourse may be had to supplementary means of

interpretation, including the preparatory work of the treaty
and the circumstances of its conclusion, in order to confirm
the meaning resulting from the application of article 31, or to
determine the meaning when the interpretation according to
article 31 :
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or
unreasonable
1. The consent of a State to be bound by a tre

expressed by the signature of its representative when:
(a) The treaty provides that signature shall hav

effect;
(b) It is otherwise established that the nego

States were agreed that signature
should have that effect; or
(c) The intention of the State to give that effect

signature appears from the
full powers of its representative or was expr
during the negotiation.
2. For the purposes of paragraph 1 :

(a) The initialling of a text constitutes a signat
the treaty when it is established that the nego
States so agreed;
(b) The signature ad referendum of a treaty
representative, if confirmed by his State, constit
full signature of the treaty.
3.)Adoption and authentication of the text of

the treaty by the negotiating states
Adoption is not expression of consent to be
bound. Gi adopt lang ang text meaning mao ni
ang text mao ni atung sign.an later. We will
adopt this well nag draft na ta. Article 1-10,
basa ang tanan, mao na ni ang text? Yes. Oh
mao na ni ang e submit for signing for
signature.
How do we express our consent to be

bound? When will this treaty, the text of
which we have just adopted, enter into
force? Are reservations allowed? Will we
allow third states who did not participate
in the negotiation to join us thru
Given that we are now adopting the text of the

treaty, how do we express our consent to be
bound?
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|Selfless Notes|
accession? Will accession be allowed or

not? How can we tell?
We can tell by looking at the TEXT of the treaty.
Meaning the importance of the adoption of
the text of the treaty is that the text of the
treaty now governs the subsequent stages
of the formation process
Ans: (maylon) I believe sir , a signatory refers to a

representative from the state who signed a treaty wherein
Sir: You mean a signatory is a person?
Ans: yes sir
Sir: States A and B are signatories, meaning you are referring
to the state
So once adopted na by all negotiating parties

mao na na ang mu govern sa subsequent
stages.
Thats
the
importance
of
the
authentication of the text of the treaty
Ans: okay sir. They signed to the treaty but with regards to a
party sir, I think it refers to being bound to the terms and
conditions of the treaty sir because as what I have
remembered not so long ago sir, you could be a signatory but
not a party since there are instances where it should be
ratified first by a for example like what we discussed a year
ago sir that there is a back door and front door.
Accession- a third state has not participated

in the negotiation stage but wants to join
anyway so pwede siya mu accede to a treaty
Sir: naa gud ratification? So what you are saying is: If a treaty
for example had been signed by Ambassador X, an
ambassador of the Philippines for example last July 2015. The
Philippines, being a signatory to that convention in July 2015
but the Philippines is not yet a party until and unless such
signature made by the representative, ambassador X had
been ratified by the president and concurred by the senate.
Is that you point.
X
You know why is it important
signatory from a party?
to
distinguish
Ans. Yes sir.
There are at least four areas where this may be relevant. In

the bar exam for example, it is important for you to be aware
of the wording used by the examiner. If the examiner for
example simply states STATES A and B are signatories to X
convention but are not parties thereto. What do you
understand by that?
Sir: So we can distinguish a signatory from a party only with

regard to the meaning of who is a signatory and who is a
party? Aside from that, what other distinctions can you make,
apart from the meaning? SO let us talk about obligations for
example. If a state is a mere signatory to a convention or a
treaty what are the obligations of that signatory state as
compared to a state who is already a party to that treaty?
54

|Selfless Notes|
First area of distinction: MEANING
also the form of the expression of the consent to be bound

then the signature will already make the state not only a
signatory but also a party at a single instance because the
text of the treaty provides that signature is also an
expression of the consent to be bound but more often than
not, signature is not the chosen form of expression of
consent to be bound.
A state is a signatory to a treaty if that state through

his representative has signed the treaty but has not
yet expressed his consent to be bound (phrase used in
VCLT), whereas a state is considered a party to a
treaty or a convention if that state had already
expressed its consent to be bound.
Why? In many cases states would require that the signature

made by their representatives should still be subjected to a
process of ratification in the home state and there are
various reasons why states would opt for a period of
ratification. There are at least two recognized... (nihunong si
sir kay mura daw ug namention ni pagmake up class).
You may ask this: Inig sign nimo, di d y na expression of your

consent to be bound? That is a legitimate question. Indeed,
expression of your consent to be bound actually can come in
various forms. I asked you to read the content of the vienna
convention of the law on treaties. You want to understand the
law of treaties? Of course you need to learn by heart the
provisions of the VCLT.
What are the reasons why states would not

immediately express their consent to be bound after
signature? Why is there a need for ratification?
Why? Because the VCLT is a codification of customary

international law on the law of treaties and a progressive
development of customary international law. There may be
some principles outside of the VCLT affecting treaties but
more often than not, these principles somehow derive their
binding character from the basic principles of the VCLT. So?
Where will you find it in the VCLT? How does the state
express its consent to be bound?
What are the ways? There are
1. Signature
2. Exchange of instruments of ratification
3. Ratification
4. Acceptance
several
There are two possible good reasons why:

States would opt to have a period of ratification:
a. In order to check the performance of the function of
the
representative.
For
example,
if
the
representative had been authorized only to perform
a particular act or lets say ang representative
authorized lang to sign if the following are the
provisions of the treaty, then icheck nila if the
representative kay did not perform the function, A
did not act outside of his function. Kung ikaw ang
President kay you would want to know that. The
ways:
Which form will govern in particular convention?

Well that will depend on what is provided for in the treaty
itself. So, if the text of the treaty provides that signature is
55

|Selfless Notes|
only reason why the state may dispense with the

ratification kay only if ang presedient mismo ang
musign.
If a state is merely a signatory to a treaty or a

convention.
Is that state already bound by the
substantive content of the treaty?
Of course not. It is not yet bound by the substantive content
of the treaty. However, does it mean a mere signatory has no
obligation to observe under the international law? Yes or NO?
Is there an obligation of mere signatory lang? What is the
obligation?
b. Because they also want to consult the polls of its

own people. Most of the time, if musign ang
Philippines ug treaty outside and then manews
lang, then people would try to react. At least,
muingon ang President : buanga nu, unpopular man
ang move sa Philippines in signing such a treaty,
then murag nagrally nman ni sila. So meaning, it
will give the state a chance to deeply think about
its decision and probably we consider if the people
would propbably not favour the decision of the
executive branch and therefore, the president
would not ratify and of course the senate would not
also concur because there is nothing to concur.
Meaning it gives sufficient period for deliberation
and decision making on the part of the states.
Kanang mga signature, as already an expression of
consent to be bound kung very simple siguro,
nondisputable na mga treaties or conventions.
Pwede ra daganan ug jus cogens or customary. Check man

sad pud na. But other than that. What is the duty reposed
upon a mere signatory?
It is not yet bound by the substantive content but bound sya
to what? We go to article 18 of the Vienna Convention of the
law of treaties.
Article 18. 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.
What I am trying to say is it is possible that consent,

in fact it is common that signature rather, is not also
the mode of expressing the consent to be bound but
something else. In which case, you can have the
signatory but not yet the party to that convention.
Okay, if signature is not a form of expressing the
consent to be bound. Is that clear?
Other basis of distinction: OF THE OBLIGATION
You know article 18 of the law of the VCLT is a

reflection of customary international law.
Why?
56

|Selfless Notes|
Part of customary international law is the requirement that

when you negotiate. Naa pman ta sa negotiation stage in the
sense na di pa sya binding ang treaty in so far as substantive
content is concerned that states should negotiate with each
other in good faith.
kay tungod sa trabaho. Ang mga Americans kay work,

business or as tourist, etc. Unya concerned ang US kay basin
iuse nya ang process to harass its own citizens. That is why
when the US signed the wrong statute in 2000, ang mga
Americans kay invoice out sa ila concern about it. That is why
I have said that this is the period when you decision will have
to be considered more briefly (di mklaro). That is why the US
decided after two years pag 2002 not to be bound by the
wrong statute and so it manifested before the UN that it is no
longer intending to be bound by the wrong statute.
Giwithdraw niya iyahang signature. After which, unsa giingon
sa US? You are not familiar with the non-surrender agreement
entered into between the Philippines and the US in your
consti 2? Well at least in consti 1, we were distinguishing a
treaty from executive agreement. The RP-US non-surrender
agreement was signed by the US and the Philippines without
the concurrence of the Senate. Of course, our Supreme Court
said there was no need for Senate concurrence because it
was a mere executive agreement.
Precisely article 18 provides that in the meantime while

waiting for ratification as probably the required expression of
consent to be bound, a signatory must refrain from
performing any act that will defeat the object and purpose of
the treaty until that state manifests its intention not to be
bound by the treaty. Okay?
Karemember mo what the US did to its signature after it
signed the Rome statute prior to 2000, if I am not mistaken.
You know what the Rome statute is? That is the statute that
created international criminal court and unsa man jurisdiction
sa international criminal court? Sir, it is the court that has
jurisdiction of international crimes. Sakto pud but in
particular the crimes of genocide, war crimes, crimes against
humanity and acts of aggression. The four crimes considered
as international crimes.
Why? Because the RP-US non-surrender agreement actually

said that kung ang Americans for example found in the
territory of the Philippines is accused of a crime before the
ICC, the Philippines committed itself not to surrender the
American to the ICC. Reciprocal sad na. Kung Filipino found in
the American soil charged before the ICC. The US committed
itself not to surrender the Filipino to the ICC.
What is the important aspect of the Rome Statute that

bothered the US? Kung mamemeber or maparty ka to the
Rome Statute,the state commited itself to surrender an
accused before the ICC who is found within the territory of a
State party, otherwise walay teeth(mao gud naa sa
recording) ang ICC. Required bya ang jurisdiction over the
person. So the idea of compulsory surrender of the person of
the accused before the ICC. Mao d y na niana ang US. Ngano
man? Wherever you go kay daghan Americans. Hinuon ang
mga Pilipino sad. Ang mga pinoy nuon naa all over the world
The question here is: It may be a little bit complicated but

there is a principle in the ICC law that says, we call it the
complementarity principle which says the ICCs jurisdiction
however will only be appropriate where the domestic court
fails to prosecute at the domestic level the accused for
57

|Selfless Notes|
unwilling (di maklaro 23:10) to prosecute the accused at the

domestic level. It is only then that the ICC will have
jurisdiction. So the argument of US: Okay man ni na
agreement because di nami musurrender for the purpose of
prosecuting the individual at the domestic level, so it does
not violate the object and purpose of the wrong statute, only
because of what we call the complementarity principle. The
jurisdiction of the ICC can be triggered only when the
domestic court fails to prosecute the accused at the domestic
level or is unwilling to prosecute the accused at the domestic
level.
That
is
the
complementarity
principle.
So
gicomplement na bali ang ICC jurisdiction sa domestic
jurisdiction. It has to be so because we are sovereign states.
Di pwede na nay supra court, when our domestic courts are
functioning. Are you following?
So for example States A, B and C signed the Kyoto protocol

but wa pa sila nagexpress sa ila consent to be bound. Under
the Kyoto protocol, river states when they become parties are
required to reduce gas emission up to lets say 20 percent of
the current level. Kay signatory pman sila, States A, B and C
are not yet bound to reduce the carbon dioxide level at 20
percent of the current level because that is the substantive
content of the treaty, di pa sya bound.
However, in a situation say where the obligation of State A is
to cede a particular portion of its territory to state B. So there
is a treaty, State A is bound under the treaty to cede a
portion of its territory to State B but States A and B are not
yet parties to the treaty because they have not yet ratified
the treaty but they have already signed the treaty. In the
meantime, State A before ratifying the treaty it had with
State B ceded exactly the same territory or subject matter to
State C.
So for example, the textbook example about this is the

principle found in the kyoto protocol involving climate
change.
Do you think that this act of State A violates the

object and purpose of the treaty of State A and B by
seeding the territory to State C?
Well that is the textbook example of an act that violates the
object and purpose of the treaty. Tan awa gud class, nisign
sya sa treaty but di pa sya bound to deliver, di pa sya
required to cede kay di man sila parties, but State A is
required to refrain from doing an act which will violate the
object and purpose of the treaty. So state A ceded the same
territory, subject matter of the treaty between States and B
in favour of State C. Well, that violates the object and
purpose of the treaty.
Sir, It is a treaty signed in Kyoto which deals with

environmental law especially climate change. Aw naa na gud
ka masuwat. Di gud na pwede wala. The Kyoto protocol,
under the climate change flavour (favour or flavour? Di
maklaro) nagprovide na sya ug mechanism on the
compulsory reduction on carbon dioxide emission kay after
scientific study, emission of carbon dioxide or monoxide,
basta carbon, destroyed our ozone layer that resulted to the
warming of the earth. As a consequence, grabe na kau
mucreate ug mga natural calamities. So karon kay naa sya
targeted emission level sa mga states. Matestingan man na
ug unsa nga level ang air at a particular time.
XI
58

|Selfless Notes|
I suppose you have encountered from your readings,

describe as part of the(di maklaro 0:07) treaty itself, but
being the word of the international law commission, you
know of course the rule on the international law commission.
You can take it from there.
We will see later on in the course of studying the text of the

VCLT, which provisions are codifications of CIL and which are
not.
So, there is an instrument that will help us understand better
the provision of the VCLT. The VCLT itself is an extensive
document that you have to study but if you want to study
further, especially if you want to study the background of
how a particular provision came into being, you may want to
read the commentaries of the ILC (international law
commission) on the VCLT. Because of course, the ILC would
explain the development of a particular provision and on
why they ended up on this provision. And they will help you
understand if it is CIL or not. You know also the importance
on knowing on whether it is CIL or not. Because if in the
problem in the bar for example. Iintrigue ka ba.
So you know of course the task of the international law

commission. ILC was tasked to codify customary
international law but of course since it would not be
pragmatic to just codify customary international law, the ILC
also put in the Vienna Convention of the law of Treaties.
Certain provisions that they considered fair, reasonable and
that why we are not yet customary international law since
they are expected to be followed by states. Then we say it is
a progressive development of CIL.
I think that is something that you have encountered in your
readings that the VCLT is a codification of both CIL(customary
international law) and at the same time, the progressive
development of CIL. In fact, some o f the provisions that are
not codifications of CIL and therefore only progressive
development of CIL may in fact have ripened into CIL at this
time. Imagine, this was drafted in 1969 and entered into
force in 1980, so since 1980 up to the present, they had been
following international community of this progressive
development of customary international law, when states
entered into treaties, they had complied with progressive
development of international in VCLT and so probably one
can argue that this time these provisions have ripened into
CIL but those are just observations though. It could require
confirmation of either an international tribunal or a most
highly qualified publicist.
States A and B entered into a treaty, however, states a and B

are never parties to the Vienna convention of the law of
treaties, when State A violated an essential provision on the
treaty. State B accused State A of material breach and wants
now to terminate the treaty. But State B has not submitted or
communicated his intention to terminate the treaty. It simply
declared that the treaty had been terminated and so State A
now claims, you cannot just get out of the treaty simple
because of an allegation that we have breached the treaty
and then the other party may say that I am not required to
observe some procedural rules because we am not a party to
the VCLT and the Procedures are found in the VCLT were not
parties to it.
The question would be: what about the procedural
requirements in terminating treaties? Are this CIL?
59

|Selfless Notes|
So whether a particular procedure is required to be observed

in a the termination of the treaty. We have of course in the
VCLT a required procedure. But is that CIL? SO, we may be
able to understand whether a provision is CIL or not by trying
to look at the commentaries of the ILC.
the treaty should be adopted, that is, how states are to be

bound when the treaty enters into force. How?
a. Base on the Travaux Preparatoires (preparatory works)
as these are relevant to interpret what happened during the
negotiation stage.
4. Signature/ expression of consent to be bound by the treaty

by the individual states, types:
Signature Ad Referendum subject to ratification/
approval later in the home state to bind it.
Already as an expression of consent to be bound (Art 12)
5. Ratification of the treaty by the individual states.
6. Exchange of instruments of ratification and Entry into
force of the treaty.
7. Accession to the treaty by states wishing to join after its
entry into force, if any (and if allowed by the treaty).
Just a caveat class, when your read the commentaries, the

commentaries for me I think around 1960s or 1961 many
years before the final draft. It may happen that an
explanation of by the ILC of a particular provision. Lets say
art 21. The final draft will not reflect the exact article number.
Art 12 in the 1969 VCLT is not art 12, it is article something
but the provision is more or less the same. I think in no
particular time, we have discussed about a definition of a
treaty.
I think we learned that the definition in the VCLT does not
mean that that is what a treaty really means. It simple means
that for the VCLT to be applicable, then that treaty, subject
matter of an inquiry should fall under this definition. It is an
international agreement concluded between States in written
form and governed by international law, whether embodied
in a single instrument or in two or more related instruments
and whatever its particular designation. I did mention that
treaties come in various names. Some carry the name: fact,
understanding, protocol. I think I explained this already.
This is basically how a treaty should be formed, executed and

there are necessary stages in the formation of a treaty and
each stage has its own legal significance. Very quickly, of
course every formation of a treaty would start with the
proposal to draft a treaty. It may done in many ways. It can
be done by one state for example proposing a draft to
another state and then they start a negotiation. It is also
possible for several states to meet together in a conference
and agree to draft a treaty applicable to those attending a
conference. It could be that the treaty is drafted by a non
state actor, usually the international organization, non
governmental organization.
Conclusion and entry into force of treaties Part II,

VCLT
Process of conclusion of a treaty/ How formed:
1. Proposal to draft a treaty.
2. Negotiation and drafting of the terms.
3. Adoption and authentication of the text of the treaty by
the negotiating states.
Authentication is optional; it is usually done much alter
The legal significance of steps 1 to 3 is the way the text of
Ex: 1949 Geneva convention governing international

humanitarian law, meaning the geneva convention governing
armed conflict. The 1949 geneva conventions had been
proposed not by states but by the international comity on
Red Cross (ICRC). What ICRC suggested to states to come
together and approve what they have drafted as to govern
60

|Selfless Notes|
the conduct of warfare. So the provisions on how to conduct

armed conflict, international humanitarian law, naa na sa
1949 geneva convention. That was inititiates by ICRC not by
states.
1. A treaty shall be interpreted in good faith in accordance

with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and
purpose.
2. The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its
preamble and annexes:
(a) Any agreement relating to the treaty which was made
between all the parties in connexion with the conclusion of
the treaty;
(b) Any instrument which was made by one or more parties
in connexion with the conclusion of the treaty and accepted
by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the
context:
(a) Any subsequent agreement between the parties
regarding the interpretation of the treaty or the application of
its provisions;
(b) Any subsequent practice in the application of the treaty
which establishes the agreement of the parties regarding its
interpretation;
(c) Any relevant rules of international law applicable in the
relations between the parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended.
Of course, after proposal, any negotitation and

drafting of terms. Is it important for one studying a
particular treaty to know what transpired during the
negotiation?
Yes. What is the importance of knowing what transpired
during the negotiation?
(and the pusil begins)
Donna: I think sir it is know the intent of the parties.
Sir: why do we need to know the intent of the parties
in entering into a treaty?
Donna: (di mklaro)
Sir: so you think that knowing what transpired during
the negotiation would be _duntful___(di klaro 17:48) in
interpreting the treaties? Where can we find it?
Donna: Di klaro
Sir: kindly locate for us the provision in the VCLT which
talks about intent, interpretation. Something like that.
...... okay Article 31. How do you interpret a treaty?
Sir: unya asa man dha ang intent?

Donna: (di ma klaro)
Donna: (di mkalro)
Sir: So, you are telling us that if it is ambiguous, you go by

the intent of the treaty. Actually it is understandable for you
to think that is how treaties should be interpreted because if
SECTION 3. INTERPRETATION OF TREATIES

Article 31, GENERAL RULE OF INTERPRETATION
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|Selfless Notes|
ato sugaton, interpretation man gud ni sya so parehas

parehas ra gud ni sya sa interpretation of statutes or
constitution.
and if we cannot get the correct meaning, that when we

apply the other approach? NO!
If we look at article 31, it had been affirmed as a
customary international law on treaty interpretation.
What did we learn in our interpretation of the

constitution? How do we interpret the consititution?
Francisco Jr. Vs. House of Rep. In your const 1, you were
taught that based on the case that we should look at first the
text of the words of the constitution and give these words its
plain and ordinary meaning. We call this verba legis- the law
as expressed in their words.
What distinguishes treaty interpretation from municipal law

interpretation is that international law requires all three
approaches be made at one particular time as much as
possible. That is why in Article 31 its says:
You interpret the treaty by looking at the text and giving it its
plain and ordinary meaning-textualist.,
However, if giving the words their plain and ordinary

meaning, still you do not get the correct meaning of the
provision, then we go to the next method of interpretation.
We say we go to the next because as said in Fransisco Jr.
when it explained verbal legis, it said this is where we should
start. So naa d y preference of treaty interpretation. Start usa
sa text before mu go sa intent. We call this ratio legis et
animameaning the intent of the law as expressed/
manifested in the intent of the framers.
In interpreting the treaty, we dont necessary follow that. In
interpreting a treaty. Usually, there are three approaches:
Unsay sumpay, in their context-that is intent.

3rd. -And in the light of its object and purpose-theological
interpretation
Mugawas nya daw sa bar: How do you interpret
treaties? Naa na daw ta answer- Article 31.
A treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose.
1. There is this textualist approach where we look at the

words and give these words their plain and ordinary
meaning.
2. There is also the intent of the parties, the intent theory,
similar to our ratio legis et anima.
Or another question sa bar puhon: What is the teleologial

interpretation of.. treaties? kbaw nta
So, however most of the times as what authors say. Since
many treaties undergo a very long and very comprehensive
treaty making process. Most of the times, looking at the text
in their context and in the light of their object and purpose
will yield similar results. However, there had been instances
also , not all treaties are perfectly done. So there had been
circumstances where the interpretation of the text will not
3. Teleological approach, where you look at the object and

purpose of the treaty. We call it theological from the word
telos meaning object and purpose.
(REMEMBER) The question here is this: Is this similar to
constitutional interpretation that we will first apply textualist
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|Selfless Notes|
necessarily been compatible with the context and/or its

object and purpose. In which case, the court should not force
itself, of course it will have to try to apply article 31, but in
the event that there will be different results applying article
31, then it will have to adopt at least one of these different
approaches. That is only when the ICJ or any tribunal for that
matter to be justified in just choosing one. So, the
interpretations where the court, the ICJ in particular will not
be with the text, will not be with the context and must be
with the object and purpose. But in many instances, the
textualist approach is considered the most preferred term or
interpretation.
1. The preparatory or the Travaux Preparatoires

2. The circumstances or we call it the contemporaneity
principle (wa ko sure sa term. Paspas ayu pagsay ni
sir)- the circumstances of this conclusion.
Before, the international tribunal will make use of the
preparatory works in lieu of other approaches. It is
required that the use of other approaches as I have
mentioned earlier will result to ambiguity or
unreasonableness. But many times also, applying any
of the approaches mentioned earlier and applying the
Travaux Preparatoires of preparatory works, we
sometimes yield in the same results. In which case, it
is okay for the international tribunal to make use of
preparatory
works.
Meaning
to
add
to
its
interpretation. Preparatory works and contemporaneity
circumstances of its conclusion. That is why it is
important to know what transpired during the
negotiation in the drafting of the terms because we
want to know the circumstances in the conclusion of
the treaty.
Now, even then , the interpretation may yield into

1. Ambiguity
2. Unreasonableness
If it will result to either of the two, then we go to article 32
Article
32.
SUPPLEMENTARY
MEANS
OF
INTERPRETATION
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in
order to confirm the meaning resulting from the
application of article 31, or to determine the meaning
when the interpretation according to article 31 :
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or
unreasonable.
The same thing daw in OBLICON.

After that there is the Adoption and authentication of
the text of the treaty by the negotiating states .
Question: What is the importance of the adoption and
authentication of the text of the treaty?
Donna : (di mklaro)
Sir: adoption and authentication is not yet the
expression of context to be bound. REMEMBER THAT! Wa
This where we go to the supplementary means of treaty

interpretation and there two.
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pa gni ni signature. For example. We have here a particular

treaty and we have adopted the text of the treaty . When will
that treaty enter into force? How will the states express their
consent to bound. There are a lot of ways of expressing the
consent to be bound such as signature, etc. Which of these is
the mode of expressing the consent to be bound in the treaty
our example? Are other states allowed to become parties by
accession?
to see the text of the treaty. Does it say that it will hve to
enter into force at a particular day or one year after the 60th
party will ratify? We will never know because it is provided in
the text. That is why it is important to limit sometimes the
authority of certain representatives.
XII
Importance of the adoption of the text of the treaty
Donna: yes sir
The text of the treaty will now govern the subsequent

stages of the treaty formation so this is where we see
whether states will continue to express their consent
to be bound.
Sir: In this treaty that we are talking about? How do

we make sure the accession is allowed? Are states
allowed to make reservations in the treaty that we
had?
Some states will not adopt a text of a treaty if for

example the treaty provides that NO RESERVATION is
allowed.
Donna:It depends sir if it is provided in the treaty

Sir: It is provided in the treaty because the treaty can provide
that reservation be not allowed. Can you give an example
where reservation cannot be allowed? The Rome statute
allows no reservation.
Then afterwards there will be the expression of the

consent to be bound and the text of the treaty will
provide for a method of expression of consent to be
bound so that governs primarily and the treaty will
choose among the various ways by which consent may
be expressed.
What I am trying to say is all those questions that I have

asked can be answered by looking at the text of the treaty.
What it means when we say adoption and authentication of
the text of the treaty is that if we adopt the text of the
treaty, then what will govern the next stages will be in
accordance with the text of the treaty. Because this treaty,
this assumed treaty that we have already adopted says
expression of consent to be bound shall be by ratification and
not just by signature. Then the next stages of ratification and
other stages will have to be in accordance with what is
provided for in the text of treaty. When will this enter into
force? Of course you cannot answer that because you have
Two kinds of Ratification

1.)Ratification at the Domestic Level
2.)Ratification at the International Level
Domestic Ratification
Done by the head of state.
President ratifies the treaty and this is appropriate if a
treaty had been signed for example by a
representative and then of course in our system the
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|Selfless Notes|
ratification of the President will have to be concurred

in by the Senate. Its not the senate that ratifies take
note its the President but that ratification will be
concurred in by the Senate.
Article 18 is a codification of CIL and basically this is on

the basis of another principle in international law, the
more general one, which require States to negotiate
with one another in good faith. Its not compatible with
good faith if while waiting for the time that the treaty
will enter into force the state will perform acts that will
defeat the object and purpose of the treaty.
International Ratification
Would come into force when there is already exchange
of the instrument of ratification.
In a multi lateral treaties very difficult to exchange
instruments of ratification so what a treaty will usually
provide is that ratification takes place when the
instruments of ratification are deposited with a
designated depositary normally the Secretary of the
United Nations.
Acts that will defeat the object and purpose of the

treaty example
States A and B entered into a treaty whereby State A
will cede a portion of its territory but the treaty has not
yet entered into force but State A nonetheless in the
meantime cede the same territory to a third state so
by the time that treaty between State A and State B
will enter into force wala na siyay ma cede kay gi cede
naman niya earlier. So there is inability to perform the
obligation.
After adopting the text of the treaty, is a consenting

state now bound by the terms or the substantive
provisions of the treaty?
NOT YET because a treaty will still have to enter into
force.
THRESHOLD: if that act will render the State

incapable of performing the obligation under the
treaty.
Normally treaties do not take into force right away.

They enter into force after expression of consent to be
bound (e.g. this treaty will enter into force upon the
deposit by the 60th signatory of its instrument of
ratification or 1 year thereafter).
When will a Treaty enter into force?

what is primarily provided for in the treaty.
In the meantime as you have already learned the state

concerned is still governed by a customary
international law on the prohibition against the
doing of acts that would defeat the object and
purpose of the treaty (Article 18 VCLT).
otherwise if there is no stipulation as soon as all

negotiating States have expressed their consent to be
bound.
In the case of third states which did not participate in
the negotiation it can become parties nonetheless if
the treaty itself provides or permits accession by third
65

|Selfless Notes|
States and when will the treaty enter into force insofar
as third states becoming parties via accession. That
would again depend on what is provided in the treaty
kay otherwise as soon as it has expressed its consent
to be bound.
The difference is if you talk about reservation the State

making the reservation wants a particular provision of
the treaty to be INAPPLICABLE to that state.
PROBLEM: Enter into force

States A,B,C,D and E entered into a treaty. The treaty
had 10 different articles. States A,B,C and D accepted
all ten without reservation. State E however did not
agree with article 10. So it indicated that it needs to
make a reservation to article 10. Did State E become
party to the treaty? Assume that State E had become
party to the treaty, what is the treaty relationship
between State E and State A,B,C, and D?
We will go back on this at page 3
No question kung bilateral treaty class. I give you ten

articles kung mu disagree sa usa wala ta kay unsa
paman ang pulos ana. Otherwise ang effect atu ning e
delete ang Article 10 duha gud ta niya you are saying
that article ten should not be applied to you only
articles 1-9 then that means e delete na lang na natu,
meaning it cannot be retained in the treaty duha ra
gud ta.
But in a multilateral treaty class say for example 100
states it is extremely difficult to require unanimity in
all the provision. Lain2 man ug interest ang mga states
lain2 ug political climate, economic standing, culture,
etc. so naa gyud provision nga probably prejudicial not
acceptable not desirable to one state but very
desirable in another. The process of RESERVATION
resolves that dilemma.
Okay saying pud, sa ten articles useful baya ang nine
for all of us nya tungod kay 30 states are aggrieved on
article ten dili na ta ka enter into treaty. So the
reservation resolves that, that one state can say we
are okay with articles 1-9 but when it comes to article
ten we want to be excluded from the application of
article ten.
Reservation
A unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports
to exclude or to modify the legal effect of certain
provisions of the treaty in their application to that
State.
*Rhetorical Q: if that is the situation nga nag

reserve siya party ba siya sa treaty or
convention?
Reservation vs Understanding or Declaration
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|Selfless Notes|
Understanding- the State making an understanding

or declaration does not seek to be excluded from the
application of the provisions unlike reservation.
passing of national legislation only. So if

there is no local legislation implementing that
provision in the treaty, it shouldnt be
considered as breach of that provision
the provision is still applicable to it however it should

be applied to it in particular way in particular context
because probably lain siya ug system.
OR
We can say that this mandate in the treaty will
not be applied in our particular region ha
because in this particular region naay
indigenous people diha, we recognize their
rights. So in our country naa miy lugar nga
recognized ilang own practices so kani nga
provision applicable ra ni sa mao na nga mga
territories wa ni labot nga particular area kay
lain ni sila ug culture. We cannot also compel
them to follow the mandate of the convention
kay mu contradict sa ilang culture but willing
ang rest mu comply ana. So thats a good tool to
use if you want to still become a party and you
still want that provision to be applicable in a
certain way
Ex. In Federal States may national federal

government and there are local governments
and there is federal constitution and there are
local constitution and there are local statues as
well so if a particular treaty for example
mandates that something should be done in a
form of legislation by all member states so
thats the obligation.
The obligation for example is to pass a
legislation putting a higher penalty for
abuse of authority or transportation of
certain product.
The mandate is for the state parties to pass
legislation. Kung ikaw ang federal state you
have to clarify mu ingun ka oi lain baya ang
system sa amoa if the federal government will
pass legislations it would be at the National
level and there is also Local level.
Did State E become a party to the treaty?

So if all of them will say that the reservation is
incompatible and will therefore reject the reservation
then state E cannot become a party to the treaty???
Yes? Simple rana siya pero what if States A,B, and C
said were okay and I think its not incompatible with
the object and purpose of the treaty but State D
insisted that NO NO, we dont accept the reservation
its incompatible with the object and purpose of the
treaty, oh mao nana ang question run, will State E
will become a party to the treaty if some
So for us, we shouldnt be mandated to pass

legislation in all local levels but we can only
pass legislation in the national level. So when
this provision will be applied to us we declare
and
it
is
our
understanding
that
compliance to that provision means
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|Selfless Notes|
accepted the reservation while others objected

the reservation?
Ang problema man gud ani class kay Genocide man

gud. Ug di ka mag liberal, this is therefore the result of
the Genocide Convention Reservation Case, you
cannot demand from the reserving State kay di man
siya mahimong party diba? Ai mag reserve ko unya ni
object man mo, kay ni object man mu dili mu party
unya nag genocide man sa ilang lugar nya karun imu
na silang e punish for or charge them of breach of the
the provision against genocide.
Whats the relationship between States A, B, and C

with State E? Parties sila. Articles 1-9 will be applicable
to States A,B,C and E as among themselves but as to
Article 10 States A, B, and C cannot compel State E to
follow because the reservation is accepted.
What about State D who rejected the reservation,
Whats the relation between State D and State E who
made the reservation?
ICJ:there is a need to liberalize the rules especially in

regard to jus cogens norm but eventually the liberality
rule as oppose to the Unanimity Rule had found its
place on the Vienna Convention on the Law of Treaties
nga dili na ta mag adopt ug Unanimity Rule.
Reservation of the Genocide Convention Case

When was the opinion made? 1951. So we didnt have
the Vienna Convention on the Law of Treaties yet on
reservation okay? It is important for you to know that
the Genocide Convention Case of Reservation was
decided before the Vienna Convention on the Law of
Treaties entered into force. So the ICJ had the liberty to
design a rule in regard to reservation, why was it
important? Its because well number 1 it involve a Jus
Cogens Rule on Genocide so this therefore led the ICJ
to redefine the rule on reservation because if you
havent encountered it yet in your reading before the
genocide convention the practice of States was to
adopt the UNANIMITY Rule which means if a States
makes a reservation and one of the other States
objects to the reservation then that State CANNOT
become a party to the convention so for a State
making reservation to become a party to a treaty all
other states must accept the reservation.
So pwede diay nga ma party ka even if naay nag

object sa imung reservation. But that would depend
on the ground of the objection. The object should be
grounded on: whether or not that objecting State
considers the reservation as incompatible with
the object and purpose of the treaty in which
case as between them the objecting State and
the reserving State, wala silay relationship. As
between them wala silay relationship but as
between those accepting naa silay relationship.
So in the reservations to the Genocide Convention,
Can a reserving state be regarded as being a party to
the convention while still maintaining its reservation?
On account of the abstract character this question, theres no
absolute answer, it would depend on whether there is a
reservation or not and depending on the ground of
reservation. The rule then is the reserving state can be
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|Selfless Notes|
regarded as a party to the convention if the reservation is

compatible with the object and purpose of the convention.
insofar as the Philippine territory is concerned we have

been under Spain and under the US in the facts, so
naay state succession from Spanish Sovereignty to
American Sovereignty and eventually on our own when
we were granted independence on July 4 1946. So
there is an example about State accession now in a
state succession there is an important consideration
there what would be the effect of State succession to
treaties entered into by the State when they continue?
When is reservation not allowed?

1.) Not allowed under the treaty.
2.) If the reservation is made on the provision that has
prohibition on reservation.
Ex. It is possible na out of 10 articles ang article
5 no reservation is allowed, which means if a
reservation is made on Article 5 then that is not
a permissible reservation but pwede siya mu
reserve sa all others.
CLEAN SLATE DOCTRINE or Tabula Rasa
3.) Reservation is really incompatible to the purpose of

a treaty
If there is State Succession the rule is, these treaties

will not bind the new State.
Can a reserving State be regarded as a party to a

treaty while maintaining its reservation?
Unless of course the Successor State decides to

continue that treaty or accept the obligation
established by previous treaties or treaties entered
into by the predecessor State.
If the reservation is objected to by one or more of the

parties but not by others. Yes he may be a party to a
convention.
In the case of the US under the treaty of paris wala

gyud ni dawat ang US nag clean slate gyud siya
kanang mga treaties entered into by Spain which
affected the Philippine territory nag clean Slate ang
US.
What is the effect of the reservation as between the

reserving State and:
A.) the parties w/c objected to the reservation
B.) those which accept it
If it happens that the successor state accepts

the treaties entered into by the predecessor
state now its allowed for that successor state to
make a reservation.
Concept of Reservation Applied to State Succession

A good example of State Succession is when a territory
is ceded to another. In our case, we have been under
Spain for 333 years under the Treaty of Paris. The
Spain ceded the Philippine territory to the US. So
Under the 2011 International Law Commission Guide

to practice on reservation of treaties, reservation is
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|Selfless Notes|
defined as unilateral statement made by a state when

signing, ratifying, accepting, approving, or acceding to
a treaty. A state or international organization, when
making a notification of succession to a treaty.
ang organ sa united nation ana is the ICJ .. But sir it

does not make sense, binding siya but cannot be
invoke before the ICJ or any organ of the united
nation. It makes sense because you can actually
enforce the treaty not necessarily thru the
instrumentality of the ICJ.
So ang successor state mu ingun we dont apply

tabula rasa or clean slate doctrine, we accept certain
treaties here. So treaties 1,2,3, of the predecessor
state we will accept that but we make the following
reservation. So naa na sad siyay power or discretion
not to accept the entirety of the treaties entered into
by the predecessor state.
Secret Treaties
Secret treaties are treaties that are not registered with
the UN. UN monitors if such treaty is compatible sa
object and purpose of the UN Charter because under
Article 103 if Im not mistaken of the UN Charter all
treaties incompatible with the UN Charter di na siya
enforceable and what will prevail is the mandate of the
UN Charter as you will see later on naa diay treaty
nga preferred over others and thats the UN Charter
3 instances where reservation may not be allowed

1.) If it is prohibited by the treaty (e.g. Rome Statute
does not
allow reservation in all its provisions).
2.) Reservation is permitted only to some provisions.
3.) Reservation is incompatible with the object and
purpose of treaty.
Registration
Article 102(1) of the United Nations Charter provides
that:
Every treatyentered into by any Member of
the United Nations after the present Charter
comes into force shall as soon as possible be
registered with the Secretariat and published by
it
XIII
When the treaty already enters into force, then the states
which participated in the formation of the treaty will now be
properly called the parties to it and there will now arise the
obligation to comply with the terms and conditions of the
treaty the substantive content of the treaty. And this
compliance must in fact be in good faith because that is a
mandate of a fundamental principle in international law
called pacta sunt servanda.
The only effect of non-registration is that the parties

cannot invoke that treaty in any organ of the United
Nations. So kung mu ingun ka ug dispute resolution
When the treaty comes into force, what comes to mind

therefor is the principle of pacta sunt servanda. Agreements
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|Selfless Notes|
must be complied with or observed in good faith. Our basis

for this is Article 26 of the Vienna Convention.
community has viewed that as highly exceptional law. So, the

way international law will view withdrawal from a treaty
where it is based on implied right to withdraw. That should be
treated as highly exceptional. Meaning there must be clear
evidence showing that withdrawal can be done.
Every treaty enforced is binding upon the parties to it

and must be performed by them in good faith.
Article 2 of the UN Charter also impliedly mandates that
states entering into treaties and agreements must also
observe the agreements in good faith. It has to be because at
the end of the day, international law is established by states
for the purpose of ensuring friendly relations. So the
importance of ensuring friendly and peaceful relations
between the parties mandates that treaties must really be
observe in good faith. However, as you know, there are
instances where the states may be allowed to withdraw from
the treaty. And in fact, I think I mentioned already the
manner in which the state may withdraw from a treaty if it
had already been a party to the treaty. This was when we
where distinguishing party from a signatory.
Why is that so? Because allowing a party to withdraw, simply

on the basis of an implied right to withdraw is a derogation of
pacta sunt servanda. So the Internation Court will say, You
are withdrawing from the treaty, what is your basis? There in
no exit provision in the treaty. And then the state-party will
say, We are withdrawing Your Honor because it is clear that
the parties have intended withdrawal or at the very least the
nature of this treaty permits withdrawal. Is that so? Kindly
explain.
The Court must be convinced clearly. Why? As I have said,
withdrawal is in derogation of the pacta sunt servanda rule
and pacta sunt servanda is the more fundamental rule that
withdrawal or the right to withdraw from a treaty.
So its either that the parties have provided for exit provision
in a treaty, then they may withdraw on the basis of the
provision of the treaty. Otherwise, withdrawal can be done
only where:
Consequently also, the grounds for invalidation of treaty and

the grounds for termination of a treaty will also have to
hurdle a higher threshold before they will be admitted or
accepted by international courts. So grounds such as grounds
for the invalidation, lets say a state pleads invalidation on
the basis of fraud, coercion, corruption, error and other
grounds to invalidate the treaty. The required evidentiary rule
would require a higher threshold. In fact, some most highly
qualified publicists would require a clear and convincing
evidence in establishing this. And that is not common also in
our Civil Law, in our Obligations and Contracts. While civil
cases would generally require only preponderance of
evidence, specific allegations however when these
allegations would purport to invalidate contract would also
1. The parties have intended withdrawal from the

treaty
2. Where it is implied in the nature of the treaty
Now, where this is already the case. Meaning withdrawal is
asserted or made by a state party to a treaty not on the basis
of the exit provision of the treaty but on the basis of implied
authority to withdraw alleging that there is such intention
between the parties and second or alleging that the nature of
the treaty would allow withdrawal. The international
71

|Selfless Notes|
require clear and convincing evidence. Like allegations of

fraud, for example. Preponderance of evidence as a whole
but to establish a specific allegation of fraud, the court would
require a higher evidentiary requirement of clear and
convincing evidence. Same thing in invalidation of a treaty,
also the grounds for termination of a treaty would also
require clear and convincing evidence to establish the ground
for terminating a treaty such as material breach, impossibility
of performance and fundamental change of circumstance. In
fact in the Gabcikovo-Nagymaros Project Case and in the
Fisheries Jurisdiction Case UK vs. Iceland, both cases
established the rule that fundamental change of
circumstance is highly exceptional and the grounds are
narrow in scope and therefor the evidentiary value required
to establish the ground would not just be mere
preponderance of evidence. That is because of pacta sunt
servanda.
nga internal law? What if naa jud na nga statute? Republic

Act for example, ni-exist na ba and then there is also on the
other hand a treaty obligation incompatible. The VCLT says
we cannot invoke our own law to justify non-compliance with
the treaty obligation. Does it suggest therefore that
international law or international treaty obligation is
preferred over domestic law?
Usually, I tried asking this question sa 4 th year. Ingon sila, in
case of a conflict between international law and municipal
law, first of course, the court will try to harmonize. Second, in
the event that it cannot be harmonized, then the law that will
prevail depends on the forum. Meaning if the forum deciding
the issue or controversy is an international tribunal like the
International Court of Justice, ang usual nga answer mao ang
international law prevails. The proper term in international
law is expected to prevail. Or that we expect the ICJ for
example to let the international law prevail. On the other
hand, if the case or controversy could be resolved by the
local or domestic forum like our Supreme Court, municipal
law will prevail. But the correct thinking is the domestic court
is expected to favor or apply municipal law rather than
international law.
Another important provision is Article 27. A party may not

invoke the provisions of its internal law as justification for its
failure to perform a treaty. This rule is without prejudice to
article 46. This is a very important rule. Again, pacta sunt
servanda. So you have committed yourself to comply with
international obligation, so please do not invoke internal law
as justification for non-compliance with international treaty
obligation. Otherwise, if there is no such rule then easily
states can just evade from treaty obligations by simply
passing an incompatible domestic law. So ma-defeat na sad
ang purpose of international law which is to ensure peaceful
and friendly relations between states.
If this will be your answer in the bar exam, you will be given
points but this is not accurate. Because this is too simplistic
of an approach to such so very comprehensive question.
Why? Because when it says international law, okay lang kung
treaty obligations. Pero kung moingon ka nga general sya on
which should prevail, ay you will be making a lot of
qualifications and this will of course confuse us.
So this is a classic question in international law? Which

therefor should prevail, international law or domestic law?
This provision poses exactly that question, what if naa jud na
1. You will have to qualify which international law

are we talking about. Are we talking about
customary international law, are talking about
72

|Selfless Notes|
conventional law meaning based on treaty, are we

talking about general principle of law or are talking
about jus cogens norm? So imoa pa i-characterize,
upat na daan.
Similarly, if there is a conflict between our constitution

and GAPIL, we expect constitution to prevail over that.
In fact, no less than Ichong vs. Hernandez confirmed
that municipal law particularly the constitution can
prevail over treaty obligation. The Philippines and
China first entered into a Treaty of Comity/Amity
whereby in particular the Philippines committed itself
to treat Chinese found in the territory of the Philippines
fairly and without discrimination. Later, Congress
passed the Retail Trade Nationalization Act limiting
retail trade to Filipinos only. Disqualifying therefor all
aliens or foreigners engaging in retail trade. Only in
wholesale because the idea there is that if we allow
foreigners to engage in retail trade, our retailers can
hardly compete because of lack of the capital.
According to the Court, we are confronted here with a
statute (Retail Trade Nationalization Act) and a treaty
(Treaty of Comity/Amity).
2. You also have to characterize what do we mean

by municipal law? You know, in most countries that
adhere to the supremacy of the constitution. Meaning
these are nations that are following a written
constitution, you expect in this jurisdiction a hierarchy
in their legal system and hierarchy in the sense that
there is a constitution that is supreme over all other
laws followed by national legislation and then you
have local legislation in the form of ordinances. So 3layered na sya in many cases. In some jurisdictions
that do not have a written or codifies constitution like
Great Britain for example, they do not follow
supremacy of the constitution but supremacy in the
parliament instead. Meaning, they dont have a written
constitution so walay regime supreme than the acts of
the parliament kay ang mga acts of the parliament
along with decisions of courts and customs and
traditions, they all belong to one category of law in
parliamentary system. So walay supreme constitution
in other words.
Asa naman karon ang mo-prevail?

Kay under the Retail Trade Nationalization Act, ang
Chinese dili na ka retail, wholesale nalang.
So what did the SC say?
SC said nga we can solve this controversy by applying
statutory construction because our incorporation
clause only means that GAPIL including treaties
therefor, only partake of a nature of a statute. Nya
nahitabo man nga earlier man ang Treaty of
Comity/Amity, later naman
ang Retail
Trade
Nationalization Act. Of the same character man sila,
pareho man sila nga general law, pareho sila nga
special law. Ingon pa jud and SC nga in any case
without
applying
StatCon,
the
Retail
Trade
So mo-matter sad na sya especially in our case for

example, didnt we interpret Sec. 2 Art. 2 of the
Constitution, the incorporation clause, when it says
GAPIL (generally accepted principles of international
law) forms part of the law of the land as referring to
GAPIL as having equivalent value or legal authority as
our statutes. And thats equivalent to our constitution.
So when there is a conflict between the constitution
and a statute, you know that the constitution prevails.
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Nationalization Act was passed as a general welfare

measure and therefor pursuant to police power.
Because in fairness atong Constitution is compliant

with international law. So wala nay conflict anang
dapita. But assuming nga naa, what do you think will
be the thinking of the court? Well Planas vs. Hill, our
own SC said that questions about policies enshrined in
the Constitution, thats a political question. Only the
people can decide except to the extent that the policy
in the Constitution contravenes jus cogens norm. So
kung ang international law that we are talking about is
jus cogens norm, it can even prevail as against our
own Constitution.
Mao na ni karong atong principle, police power cannot

be bargained away by treaty. In the same manner that
police power cannot be bargained away by contract.
SC went on describing police power that it is the least
limitable, most pervasive and most demanding of all
inherent powers of the state. So asa naman ron ang
the state cannot invoke internal law as justification to
evade treaty obligation? Because it is our SC which
decided the case. It may have been a different result if
China brought the matter to an international tribunal
and of we have been sued for an international
wrongful act for breaching that international treaty on
amity, then the result would have been different.
Because of the thinking nga ang forum sad mo-matter
in a way. What I was trying to say is i-distinguish pa
gani nato ang international law i-characterize nato and
then i-characterize sad nato ang municipal law. But
anyway, what Im saying is in the Philippines naa tay
supremacy of the Constitution, so thats one, momatter na.
3. The outcome will also have to vary depending on the

forum. If the controversy is to be decided by an
international forum, it is expected that international
law would be upheld. In particular, if you talk about the
ICJ, it is mandated by its statute under Art. 38 Par. 1
that the ICJ shall consider as sources of international
law the following in deciding cases. So mandated and
ICJ to apply international law. On the other hand, if the
issue is to be resolved by a domestic court, whats the
rule? The court is expected to uphold municipal law,
you should use the word expected because we cannot
come up with the rule that the domestic court will
uphold municipal law. You know why? That will not
depend whether the domestic court is following the
monist or dualist approach.
Second, of course kung jus cogens norm, do you think

it can even limit our Constitution? Definitely jus
cogens will prevail over our ordinary statutes but what
about our Constitution? Can the jus cogens norm
declare
as
incompatible,
rather
invalid,
the
Constitution? Well of course in international law, it can
be said that jus cogens will always prevail because it
involves non-derogable principles. Diba cannot be
derogated, not even by a supreme Constitution.
So magqualify ka sa kung unsay meaning sa

international law, magqualify ka sa municipal law
on one hand and then magdetermine ka sa forum
on one hand and magdetermine ka sa monistdualist approaches on the other.
What about domestically, do you think the same

thinking will be applied? It is still to be tested right?
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What does it mean? In monism theory, there is an

understanding that in this world there is only one legal
system. Thats why its called monism. That is
international law. This thinking is highly influenced by the
natural law theory and under this theory, each and every
individual is endowed with the ability to determine what is
right and what is wrong. And that ability is part of our
nature because it is God-given in accordance with the
natural law theory of St. Thomas Acquainas. And since it
is natural and innate in each and every one of us,
according to Hans Kelsen, there is therefor the possibility
of the universality of a law. So its possible nga naa jud
diay law nga mo-exist nga universal. Hans Kelsen referred
to that law as the international law. So there is only 1
system therefor even domestic legal system will have to
abide by this universal law called international law. So this
domestic law can only be valid if it conforms to
international law. If that domestic court thinks of monism,
then that domestic court will let international law prevail
over its own domestic law.
Freedom of expression. Unsa may ni-prevail? Our

obligation to protect and remain and consider inviolable
diplomatic premises, duty to refrain from disturbing the
premises. Ni-prevail sya over freedom of expression!
XIV
Previous discussion:
Reservation, Effect of a treaty after entry into force, A party
cant invoke an obligation of its domestic law to evade
compliance.
Discussion proper:
Another effect when ~~~~putol at 3:14~~~~ a treaty. But
that is the general rule, because the parties can provide in
the treaty it self that I cant be given retroactive application.
A treaty also cannot prejudice a third state without the
consent of the third state. Especially when we speak of state
its different from a person in a sense that theres sovereignty
in the part of state and of course basic principle on
sovereignty, A States interest cannot be affected, not be
regulated, cannot be prejudice, compromised or affected in
any way without the consent of that state. Precisely consent
is the exception to sovereignty.
On the other hand, if that domestic court is dualist in

thinking, then there is a chance to let municipal law
prevail over international law because in the dualist
thinking, there is no singular universal law in this world.
This world is divided by 2 legal systems, one is
international law and the other domestic law. Distinct and
separate. So kung kana ang i-apply sa domestic court,
pwede sya nga ang international law ang mo-prevail. But
that is not to say that that is the thinking of our court.
Many times also, our court has applied international law
over domestic law and even over constitutional rights of
individuals. For example, Reyes vs. Bagatsing. What
where the demonstrators exercising at that time?
And also as to application of treaties, same thing as to time,

its not retroactive generally.
As to its application on territory, general rule it should be
binding upon the territory of state parties. State in the treaty
that it is not applicable to certain areas or territories of that
state. Before Art 29 had been very important because some
states would indicate in some treaties that they wont involve
their colonies, when most states still had colonies in the past,
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|Selfless Notes|
in the application in the treaties they have entered into. It

becomes relevant. Nowadays, we dont have similar situation
where a state may be, meaning a territory is still a colony of
another state.
combine therefore the ordinary meaning of the text and the

object and purpose of the treaty. So thats how you read the
text of the treaty give it its ordinary meaning then in a
particular context and the object and purpose of the treaty.
The next paragraph of art 31 would have to deal with what is
the meaning of context.
Interpretation of Treaties
Basic Rules:
1. Text of the treaty (ordinary meaning + context +
object and purpose of the treaty)
2. Intent of the Parties
3. Object and Purpose of the treaty
Means of Interpretation:
a. Preparatory works (travaux prparatoires)
b. Circumstance of conclusion (contemporaneity)
What consists of the context of the treaty?

Paragraph 2 in the context for the purpose of interpretation
of the treaty includes any incidental agreements related to
the same subject matter that had been entered into by the
parties. Any instruments which was made by one or more
parties in connection with the conclusion of the treaty and
accepted by the other parties as an instrument related to the
treaty because this usually shows the context under which
the particular treaty had been interpreted. However, putting
all 3 together in one process of interpretation may not give a
definitive result.
Article 31 of the VCLT is a customary international law and

the interpretation there would require a combination of the
recognized or major methods of interpretation.
So, the ICJ for example, may be compelled to just adopt one
method of interpretation and prefer over the others. Actually,
the textualist approach had been considered preferred than
the second: the object and purpose of the treaty. Where the
interpretation however will result still to ambiguity or that
interpretation will result to ambiguity. Thats the time the ICJ
may make use of supplementary means of interpretation. We
have the Preparatory works or travaux prparatoires of that
treaty and also the circumstances of the conclusion or the
contemporaneity of its conclusion. That will also help the ICJ
come up with definitive meaning of interpretation. When we
interpret treaties were govern primarily by art 31 thats
customary international law (CIL) and we may make use of
other methods of interpretation only when the ICJ cannot get
There are three recognized methods of the interpretation of

treaty. One is the textualist approach thats giving the text
or the word of a treaty their plain and ordinary meaning.
Second, in the context, meaning the intent of the parties.
The third one is the object and purpose so thats the
teleological interpretation of the treaties from the word
telos meaning object and purpose. The idea is that as much
as possible the tribunal interpreting the treaty and this
should be in most cases the ICJ, will have to combine all 3
and come up with a specific meaning to the provision of the
treaty. Meaning you dont interpret a treaty on the basis on
one method alone, thats the import of Art 31. So you
76

|Selfless Notes|
the definitive meaning of the provision of the treaty by

applying these 3 methods so one may be preferred over the
other. Theres no rule that, unlike our case, that we should
first consider text before the intent. We dont have that in PIL
so generally methods of interpretation are flexible in the part
of the ICJ. Especially the study of PIL is basically a study of a
common law regime. Its more of a common law approach, no
hard and fast rule, especially on interpretation.
fact as a CIL prohibition on the use of force. It was only in the

mid 1900 where used of force was definitively declared as
prohibited in international relations. Therefore, according to
Max Hubert the manner by which the Philippine Islands
including the Islands of Palmas had been acquired by Spain
which was through use of force didnt affect its title to the
territory of Philippine Island. Because at that time it was
acquired the use of force was not yet considered as a
prohibited norm under the international law.
There are several other methods of interpretation. In fact,

outside of these, there are other methods which may be used
parallel to this or which may be used under special
circumstances. For example, there maybe an issue on
whether you apply international law today to a particular
treaty that had been executed many years back where the
international law or regime at that time had been changed.
State the case of the Island of Palmas for example, its a
1927 arbitration case by Max Hubert the arbitrator. One of
the issues there was whether the manner by which islands of
Palmas was acquired by Spain which was through used of
force affected the title of Spain because at that time Max
Hubert decided the controversy, use of force already started
to develop as a prohibited norm in PIL. But of course, he
declared that at time you cant apply the present
international law regime to a treaty that had been executed
in the past which was then subject to a different regime.
Thats why there is this method of interpretation called the
intertemporality of law. Meaning, when you interpret a
treaty, and when youre to apply a particular law to that
treaty. That law that should be applied to the treaty must be
the law prevailing at the time of its execution.
The opposite of intertemporality of law theory is to treat and

look at a treaty as a leading instrument. This is similar to the
way some justices of the SC would interpret the 1789 Consti
of the US. More often than not in the US they would interpret
the provisions of the Consti which was established 1700 but
to be interpreted in the light of the new norms or principles
at the time that it is to be interpreted thats why its called
the living tree method of interpretation. The document
in the treaty should be interpreted as if it is a living
instrument therefore it must adopt changing circumstances.
In the same way therefore, the instrument of the treaty will
apply what is known living tree method of interpretation. The
other term is, involutive method of interpretation. Meaning,
the treaty should be interpreted in a way it should be
considered something that evolves and adopts to the
changing circumstances.
Has the court been given by international law liberty as to
which of this methods will be used? Yes. Theres liberality in
what method of interpretation the ICJ will use. Sometimes
there is one principle of method of interpretation called the
principle of effectiveness. It is related to the intent of partys
theory. That simple means that a treaty may be interpreted
to keep effect to the intent of the parties and the object and
So when the Treaty of Paris was executed in sometime in

December 1898, there was no definitive prohibition yet. As in
77

|Selfless Notes|
purpose of the treaty. There are various methods of

interpretation that the ICJ may employ in interpreting a
treaty.
What is the effect of municipal law regarding

competence to enter into treaties that is not being
followed?
*If you cant remember all these methods of

interpretation, then atleast try to memorize Art 31,
because that is the most fundamental method of
interpretation*
For example, the president is the head of state. In our

constitutional law, the president ratifies the treaty and such
ratification is subject to the concurrence of the senate. What
if that is not the concern, will that invalidate the concern of
the Philippines?
We interpret the treaty in
Under our domestic law, who may be authorized to express

our consent to be bound? Under Executive Order 459?
President. If its not the President, Secretary of Foreign
Affairs.
1) good faith
2) giving the words of the treaty in context and in the light of
its object and purpose.
Art 7 of VCLT, the head of state, head of government and

ministers of foreign affairs have implied powers to represent
the state in all stages of treaty convention. It no longer
requires full powers. However, if there is a domestic law
requiring further authorization and that is not being followed.
Let us assume in our domestic law, before the president can
ratify a treaty, the president must have been authorized by
congress through a resolution and that has not been followed
by the president. What then will be the effect of refusal on
the part of the president to comply with the certain
constitutional requirement?
Invalid or Defective Treaties

Head of State or Government disregards constitutional
requirements for ratification (theory) vs Art. 46
Unauthorized representative
Ultra Vires (Art. 47), when restriction had been made
known the other party prior to expression of consent
Error (Art. 48)
a. About a fact or situation which was assumed to
exist at the time of the conclusion of the treaty
b. Formed essential basis of consent, and
c. State has not contributed to the error
Fraud (Art. 49)
Corruption of Representative (Art. 50)
Coercion of State by the threat or use of force (Art. 52)
Contravenes Jus Cogens (Art. 53)
Art. 46 (1): A State may not invoke the fact that its
consent to be bound by a treaty has been expressed
in violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its
consent unless that violation was manifest and
concerned a rule of its internal law of fundamental
importance.
There are many ground by which you can invalidate a

defective treaty.
78

|Selfless Notes|
(Classmate) Generally, the State cannot say that their

consent was violated by the act of its official, except when
the violation of official is clearly manifest or that it violated
an internal law of fundamental importance.
to validly represent the Philippines, in other words, lets take

to look at our consti. Is there anything in the constitution that
provides a rule as to when our head of diplomatic mission be
authorized to sign in behalf of the Philippines? None. Its
provided for by EO.
(Sir) Unless that violation was manifest AND concerned a rule

of its internal law of fundamental importance. How do you
interpret internal law of fundamental importance?
What we see in the constitution is competence to

conclude treaties
(Classmate) A law enacted by congress or the constitution

itself.
1) Implied power of president as executive to represent the

Philippines and therefore to ratify treaty
(sir) What is an example of an internal law that isnt of

fundamental importance? Can the president delegate its
authority to represent the Philippines in treaty signing? Yes.
How will the president do it? Other than the Department of
Foreign Affairs Secretary, any other official may be
authorized?
2) Senates authority to concur with the ratification. All other

principles of treaty making representation, you will not see
that in the constitution but you will see that in executive
orders. Like EO 459.
In international law, they didnt say that internal law of
fundamental importance refers to the constitution, but
authorities forward the interpretation that they should
pertain to a constitution or fundamental law the very least.
So, if in a particular state the head of state is required to get
the authorization of congress, youll notice that is not a
normal practice.
(Classmate) Its said in the EO it could be the secretary of

foreign affairs, head of the league of United Nations,
representatives accredited to the Philippine international
conference and there must be an issuance of full powers.
If youre the president, the head of state of the government
and secretary of foreign affairs, the full powers is implied, so
theres no issue about it. The issue will be if he is not among
the three, lets say head of diplomatic mission. So the only
way that he can be authorized for a particular purpose, other
than adoption of the text of treaty. Because under Art 7(2)
implied authority. What is implied for heads of diplomatic
mission and heads of special mission, only for the adoption of
the text of the treaty. All other authority, lets say, expression
of consent to be bound. I sign na siya, and expression to be
bound ang signature. Kinahanglan pa ug full powers. In order
A violation is manifest if it would be objectively evident in a

State conducting itself in the matter, in accordance with
normal practice and good faith. Its not a normal practice that
a president will have to get an authorization from congress to
be able to sign a treaty, thats not normal. In fact, when you
look at Art. 7, implied ang authorization, in all stages.
Assume that there is such a requirement and its not being
followed, will that invalidated the consent of the state? There
are 2 requirements to invalidate because generally a state
may not invalidate A State may not invoke the fact that its
79

|Selfless Notes|
consent to be bound by a treaty has been expressed in

violation of a provision of its internal law regarding
competence to conclude treaties as invalidating its consent
exception is:
Why? A state will easily violate a treaty provision, and then

when the other state says, You have breached your
obligation, then they will just invoke it as a defense, We
have not breached a treaty that is invalid, because our law
has not been observed. The only exception if its manifest
and of fundamental importance. In this case, all states are
also somehow, constructively informed of such limit to such
authority example, if the authority of the ambassador, is
limited and all member states had been informed of such
limit, all other states are now estopped in saying, Were not
aware of your internal law, because they have been
informed or duly notified of the limits of the ambassador.
1) the violation is manifest

2) involving law of fundamental importance.
In Cameron vs Nigeria, that was the bone of contention of
Nigeria when it argued were not bound by the treaty
because it so happens that the head of State of Nigeria under
their internal law cannot express the consent to be bound of
Nigeria until and unless such signature of the head of state is
to be confirmed or approved by a military tribunal. Thats in
their law. The ICJ said it may be a internal law of fundamental
importance because its your constitution, but that is not
manifest.
Another basis for invalidation of a defective treaty, is

unauthorized representative. Next, Ultra Vires, authorized
but it exceeded its authority. But, as mentioned in Art 46 with
such distinction, have also been made known to the other
party prior to expression of the consent, thats covered under
article 47. Another ground to invalidate a consent is error,
and there are 3 important elements, before error can be
properly invoked. Error must be pertained
Why? That is not in accordance with normal practice. The

normal practice is for the head of state to be authorized in all
stages. Therefore, all other states cant be bound by such
internal rules.
1) About a fact or situation which was assumed to exist at

the time of the conclusion of the treaty.
Why? Theres nothing in international law to compel all states

to take cognizance of the internal laws of the other states. Di
ka kaiongon nga wala ninyo basaha ang amo constitution,
mao an amo requirement) A state is not bound to have full
knowledge and understanding of the laws of other states. At
the end of the day, international law exists primarily to make
sure that there will be international peace and security.
Friendly relations is the objective of the United Nations
Charter for Laws, if you dont have such a provision, that will
spawn a lot of controversies.
2) Formed essential basis of consent, and

3) State has not contributed to the error this is more similar
to oblicon. Although the threshold must be higher here
because states are represented normally in the various
stages in the various stages of treaty formation by several
individuals.
You cannot expect that a state is just represented by one
individual all throughout the treaty formation process. Lain
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|Selfless Notes|
ang representative sa adoption of the text of the treaty,

pagabot sa signature lain nasad. Pagratification lain na sad.
purposes but cultural purposes only. Pila ra man na magampo

gamiton, State B ra mu consume. Which was assumed to
exist at the time of the conclusion of the treaty meaning it
has no commercial value 2) It formed essential basis of
consent State A would not have allowed State B to exploit
the natural resources had it known that it has actually
commercial value 3) State A must not have contributed to
the error at the time it was executed, it could have not
been discovered by any scientific means that it can cure
cancer.
How will you analyze that there was error in expressing

consent to be bound? Nga lain lain man na ug
representatives? Very difficult, right? Unlike in 1-on-1
contract drafting, kamo jud 2 ang involved. So the threshold
is higher. For example if the treaty says, okay, State A,
authorizes state B, for example to exploit State As natural
resources in each territory on the basis that state B will use
certain natural resources only for a limited purpose, say this
is for such symbolic uses but not for commercial. Lets say
theres a mineral found in State A that is useful in tradition
and culture of State B.
What happened in the temple case? Because this case

illustrated the 3rd element, the state has not contributed to
the error. If theres an error, the state invoking it must not
have contributed to the error. It will bar any claim of
invalidation of that treaty.
State B: You have X Mineral there, in our culture and

tradition, we use this if we pray.
So you have this case between Thailand and Cambodia

between the issue of who owns the temple of Preah. The way
to settle this is to look at the maps prepared by the
committee, some sort or commission troop but with the
participation of Thailand. Now, when it was found out that on
the basis of the maps prepared by the participation of
Thailand the temple would actually pertain to Cambodia.
Thailand invoked that Camboadia cant use that map
because there was error in the preparation of the map and
therefore when we entered into some of an agreement, it
vitiated our consent because we didnt know that there was
error in the map, so the map shouldnt be used. The tribunal
ruled: Did you, or did you not have the participation in the
preparation of the map? Thailand had a participation in the
preparation, therefore, it contributed to the error.
State A: Ok, it will not endanger our natural resources

because the exploitation of our natural resources will not be
for commercial purposes but just to let you practice your
culture and tradition.
The treaty has been going on for 99 years and 20 years after
from execution of the treaty, it had been discovered that
such minerals can cure cancer. The international
pharmaceutical companies of State B got interested. So from
small scale exploitation it became large scale because State
B will now import the minerals that will be used by
multinational pharmaceutical companies all over the world,
damaging the environment of state A.
State A can invoke that there was error because 1) the error
was about a fact meaning, this mineral the parties believed
that its actually really it cant be used for commercial
You also have Fraud (Art. 49), Corruption of Representative

(Art. 50), Coercion of State by the threat or use of force (Art.
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|Selfless Notes|
52) not largely observed nowadays, especially coercion by

the threat to use of force is already clearly prohibited under
article 24 of the UN Charter. Definitely of course if the
provision of the treaty contravenes the jus cogens norm (art.
53).
may be considered as outside of the VCLT regime and

therefore, it must develop by itself as a separate CIL.
At present, there has been no other ground for terminating a
treaty yet that has been developed as a CIL outside the VCLT.
There are emerging but not yet confirmed. The 3 common
grounds for termination for treaty which every student of
international law should master:
Jus cogens has been defined as peremptory norm where

derogation is never allowed. What is the relationship between
erga omnes and jus cogens obligation? Obligation is erga
omnes if it is the obligation of the entire community. Any
state can perform that erga omnes duty if the performance of
the erga omnes norm is a promotion of a jus cogens norm.
So, if genocide is jus cogens, prohibiting genocide is erga
omnes. Prosecuting those who commit genocide is erga
omnes, meaning duty. If a treaty contravenes a jus cogens
norm it is also invalidated.
1) material breach (art 60) 2) impossibility of

performance (art 61) and 3) fundamental change of
circumstance (art 62) *you should know this by heart*
For example in material breach, the Namibia case, the
South West Africa case. The South Africa violated the
mandate of the League of Nations to promote the welfare
of the people of Namebia which had been given to South
Africa in trust under the mandate. Meaning, gipa
administer. The people of South West Africa or Namibia,
used to be a colony of Germany. When Germany left,
Namibia didnt know how to administer self-governance.
They still had to learn the government. So South Africa
was given the obligation to administer South West Africa
but what SWA did, it implemented a discriminatory policy
of apartheid. They discriminated the black people of
Africa. UN said, instead of promoting the welfare of the
people of Namebia you ended up discriminating and
thats a material breach because it was thought thats
also a treaty obligation when youre granted a privilege to
administer a territory under the mandate of the League of
Nations (UN). Material breach is also discussed in
Gabcikovo-Nagymaros case, same thing with the
possibility of performance and rebus sic stantibus.
A treaty may also be terminated. There are many ways in

which a party may get out of that treaty. 1) withdrawal or
denunciation and it can be done either pursuant to a treaty, if
there is an exit provision or withdrawal or denunciation may
be done even without exit provision in two instances where it
is the intention of the parties or nature of the treaty.
Other than that, theres also invalidation of the treaty. Those
are the grounds for invalidation of defective treaties.
However, where the treaty is not defective, invalidation will
not apply, what may apply is the regime of termination of
treaties.
Art 42 is specific, there are no other grounds for termination
other than those enumerated in VCLT why? The
international law commission rafting the VCLT already
enumerated CIL grounds for termination of treaty. There may
possibly be some other grounds o terminate a treaty but it
XV
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|Selfless Notes|
International law- primarily to aid in international peace and

security
Slovakia with material breach when it implemented

variant C. Slovakia said cannot be charged with
material breach.
Treaties may be terminated on various grounds:
Elements of countermeasure:
1. Proportionality of countermeasure was not met
(80%-90% of water from the Danube river).
2. The countermeasure must be a response to a
particular breach committed by the other party.
Denying the object and purpose of the treaty
but is justified due to a former breach.
1. Withdrawal or denunciation in accordance with the

treaties/ Intent of the parties
2. Invoking the invalidity e.g. error (Temple case
Cambodia and Thailand)
3. Termination of a treaty which is not defective (Must be
invoked when grounds of termination are clearly
established)
a. Material breach 1.) repudiation of the treaty which is not sanctioned
by the VCLT
*repudiation
which
are
permissible:
countermeasures- act done by a treaty party which
may not be consistent with the provisions of the
treaty but is essential in order for the other party
comply with its obligations in the treaty
Fundamental change of circumstances

The emergence of environmental law did not
prevent Hungary from performing the obligation of
the treaty. ICJ said changes in economic, social,
political, and legal system would not necessarily
tantamount
to
a
fundamental
change
of
circumstances. ICJ noticed that the treaty actually
had a provision that allowed the parties to make
adjustments if they encountered environmental
problems.
Gabcikovo-nagymaros:
Systems of locks flowing to the Danube river.
Hungary and Slovakia (Czechoslovakia). Changes in
administration in both countries; social and
economic. Socialist to capitalist liberal states.
Environmental law developed during that time.
Hungary welcomed liberal thinking, people
questioned the project that there was an allegation
that it would pollute the river. Hungary suspended
the project and later abandoned it in 1989. Which
lead Slovakia to implement Variant C. Variant C
however enabled Slovakia to utilize more than
around 80%-90% of the river. Hungary charged
Namibia Case:
Mandate from the League of Nations which states
that South Africa should administer Namibia and
therefore to promote the welfare and take care of
the people. Namibia was an emerging state; used
to be a colony of Germany. To promote the right of
self-determination of certain peoples in particular
inhabitants of colonized territories. UN issued a
resolution for the decolonization of colonized
territories. Colonizing countries were asked to
83

|Selfless Notes|
respect the right of self-determination, asked them

to decide on their fate.
One of the main reasons why the party entered into

such a treaty. Iceland violated the treaty by
extending their fishing area. Extend the 12 mile
fishing area to 50 miles claiming due to the
adoption of new fishing techniques. Iceland
questioned the jurisdiction of the ICJ regarding the
fishing zones established since there was a
fundamental change of circumstances which was
the adoption of new fishing techniques. Iceland and
UK both submitted themselves to the jurisdiction of
the ICJ. Questions whether there was a radical
change of the obligation that would have changed
the jurisdiction.
1. To remain to the power of the state

2. To declare independent
3. To become part of another state
Namibia wanted to become independent state.
Namibia could not yet self-govern. Solution was to
allow more civilized states to administer for the
time being until they could self-govern. South Africa
agreed to such mandate to administer Namibia.
South Africa committed apartheid or basically
discrimination of races. Separated white people
from the blacks. UN called the attention of South
Africa since they violated the Mandate. ICJ had
complete jurisdiction over the case. Sanctions were
imposed against South Africa. Actio Popularis
initiated the case. Countermeasure permitted.
Fundamental change elements:

1.) Change must be fundamental
*Fundamental when radical transformation of
the obligation still to be performed by the party.
*radical change- to perform an entirely different
obligation which is different from what was
contemplated from the very beginning.
* Slight breach cannot be a ground to terminate a

treaty
b.) Violation of a provision which is essential to the
accomplishment of the object and purpose of the
treaty
India vs. Pakistan Case:

India questioned the jurisdiction of the ICAO,
claimed that they have suspended the treaty. The
breach concerned did not revolve around the
jurisdiction of the ICAO to hear the case. Indias
claims for breach did not even state as to which
provisions of the treaty were being violated.
Not all violations would constitute material breach.

It might only constitute to slight breach but that
would not entitle them to terminate the treaty. It
might only entitle the party to charge the violating
party an internationally wrongful act.
b. Impossibility of performance
c. Fundamental change of circumstances (rebus sic
stantibus)
Fisheries Jurisdiction Case:

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|Selfless Notes|
Had been modified a bit in certain areas in the vclt

which wanted to develop rebus sic stantibus into a
progressive customary international law
XVI
There are treaties that do not have specific lifetime or period

and there are also treaties that have a period. Is the
fundamental change of circumstance applicable to both?
A: (wala gi directly ug answer ni sir but mao ni ang
explanation)
Q: What are the other conditions or elements of fundamental

change of circumstance?
The international law commission in drafting the VCLT

deliberately used the phrasefundamental change of
circumstance instead of reibus sic stantibus because the
latter started as a customary international law. In practice,
when the law of treaties were govered by purely customary
international law, reibus sic stantibus was the relevant
doctrine, in the past, it applied to indefinite treaties only. The
reason was that since these treaties are short-lived they said
that we should allow them to terminate on their own. Reibus
sic stantibus was applied sparringly to definite treaties. It was
more applicable to those treaties that are considered
lifetime. It makes sense because the parties cannot be
compelled to comply with obligations that are essentially
different than that essentially contemplated by the parties.
A:
The circumstance that change must relate to the
fundamental character that essentially was made basis of the
consent that radically transformed the obligations previously
contemplated by the parties. Like in the fisheries jurisdiction
case, the obligation was to submit to the jurisdiction of the
ICJ and despite the change of the fishing techniques in
Iceland, it did not affect the obligation of the parties to
submit to the jurisdiction of the ICJ.
Q: What are the instances when it cannot be invoked?

A: When the treaty includes boundaries and when the
fundamental change is due to the fault by the invoking party.
When the international law commission codified the

customary international law, they did not put reibus sic
stantibus in the VCLT. The main reason for this is that they
cannot allow past practices to be carried over kay state
practice today may not be the same from that in the past.
They were trying to observe how state practice would
develop on this regard.
Sirs discussion: The same principle in error where the

invoking state by its own conduct contributed to the
fundamental change.
Q: Is the fundamental change of circumstance an available

ground that may be invoked by a state party to definite
treaties?
note: ang point ni sir kay applicable sa duha ang

fundamental change of circumstance kay naay treaties nga
85

|Selfless Notes|
sa early stages pa lang ang obligations sa parties have

essentially changed and they cannot be compelled to comply
with those obligations essentially different from those
contemplated upon.
2. Objection - measure cannot be implemented, hence pacific

means must be availed of to settle the disputes during a 12
months period (i.e. arbitration, good office, negotiation,
conciliation, mediation, etc.). If not settled after 12 months,
the parties can go to ICJ for litigation or submit the case to an
arbitral tribunal. The difference between ICJ or regular
procedure and arbitration is that the parties do not have a
choice regarding the tribunal who will decide whereas in an
arbitration, by mutual consent, the parties can choose who
will decide. It is said that there is more legitimacy in
arbitration than in litigation because the parties are expected
to respect the judgment rendered because the arbitrator is
being chosen by both parties.
Q: Is there a required procedure to terminate or suspend a

treaty?
A: Take note that the party invoking the ground to terminate

the treaty cannot unilaterally consider the treaty as having
been ended.
There are several important principles when it comes to

termination like the doctrine of operative fact - which means
that acts done pursuant to a treaty that has been terminated
will still be given legal effects or still have to be respected.
Sirs discussion: Instrument must be in writing and must be

duly signed by a duly authorized representative officer under
the domestic law of the state. The notice should include the
basis or reason for the measure it proposed under the
circumstances. Next is the proposed measure or what you
intend to do, e.g. suspend or terminate. When the other
party receives the notice, you hold on your intended measure
since it cannot be implemented right away. There is a period
of 3 months before any action can be done. Due process is
observed here since the other party is given the chance to
contest or explain their side. Two possible situations after
notice:
For example, in the course of the treaty, there are properties

transferred to the other party through the enforcement of a
treaty provision. It does not mean nga tungod nga na
terminate na ang treaty, imung kwaon ang property because
that had been performed by the parties pursuant to a treaty
that was then enforceable and legal for all intents and
purposes.
The termination of treaties will still have to observe
diplomatic immunities and privileges because these are
based on customary international law.
1. No objection - the other party may now implement the

proposed measure
86

|Selfless Notes|
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PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH.

In the field of law, the course should start with a discussion

command. That is what Akehurst mentioned in his book. This

We begin with the question, you must have encountered in

The process with coming up.. So what you are telling

Why is it considered as a horizontal legal system? Why

Rules that have not been agreed upon do not form

Dont we have for example the UN? Does it not serve

So PIL is not really just based on agreement?

If PIL is a horizontal legal system, what characterises

But what about the formation of international law that

PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH. 403 2015-2016

If you know, how is customary international law formed since

course, when we reach that chapter we will learn how to

What do you think is the problem with the formation

I said enforcement of International law, not compliance.

Not only in the formation of International law, even in the

Hold on, wala pa ta sources.

When we study the sources of international law we will learn

PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH. 403 2015-2016

responsibility. The problem is how to enforce liability and

C: I think it confers authority upon the state that has received

Do you know why theres a problem in the

Yeah but what if the judgment is to pay compensation

Yeah but its in the same way that each one of us is

Unlike in our regular courts that you have a sheriff okay,

This is for example, Im thinking about a situation where

Do you know why? What is it with the ICJ that we cant

So whats the problem with the ICJ for example?

If you have a situation where, a court or a tribunal can

The ICJ will impose sanctions? Unlike the case of the

PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH. 403 2015-2016

everything is always based on consent. So jurisdiction of the

But do you know that the ICJ while largely based on

Which states that you cannot actually diminish sovereignty

In the case of Nicaragua vs US, the very first paragraphs of

ex. So if a state entered into a treaty or convention and

And then eventually when the US, lost in the jurisdictional

By the very fact that a state enters into a treaty and

How does this operate?

**Does it make sense? Even that concept of compulsory

PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH. 403 2015-2016

So you can say that the jurisdiction of the ICJ is problematic

affirmative action on the part of the Security council. That is

But diba Sir there is a security council? can we not

dont worry you dont need to deploy your UN troops, your

Why politically limited?

We dont have an international police precisely

Why is that important?

Well thats one of the areas of public international law.

A: What about the case of Afghanistan? Did the

PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH. 403 2015-2016

talk about the use of force discussed in Nicaragua.

Why? Are you looking at states with some sort of

Problem with the formation of international law:

Can you contextualize that? So for example why

The preservation of the environment is a secondary interest.

Why do states obey international law?

The other reason perceived as a reason why states do

PUBLIC INTERNATIONAL LAW NOTES| ATTY. LARGO EH. 403 2015-2016

observe international law is that it is a reciprocal

Thats still to the best interest of the state? To comply with