Public International Law Ultimately, Israel agreed to pay UN 19,500 pounds and
did so in 1950.
What evidence can you offer that PIL is an evolving
concept?
Definitions of PIL
Traditional – Brierly – the body of rules and principles
of action which are binding upon civilized states in their
relations with one another
Modern – Hackworth – it is that branch of public law,
which regulates the relations of states and other
entities, which have been granted an international
personality.
Subject v. Object (You need cases for the distinction)
1. Subject – Has international legal personality.
Thus, capable of possessing international rights
and duties, including the right to bring
international claims.
2. Object –
Death of Count Folke Bernadotte, a Swedish national. He
rescued some 30,000 prisoners from German
concentration camps in WWII through mediation. The
UN appointed him as mediator (or the Chief UN Truce
Negotiator) in the Israeli-Arab conflict with Israel
fighting for independence. With his partition plan, it
angered many Israeli extremists, which eventually led to
his death in Jerusalem in 1948.
The issue now is WON UN had legal personality to bring
a claim with the view of obtaining reparations in respect
to the damage caused to itself, to the victim or persons
entitled through the victim, or WON it is just exclusive to
Sweden with regard to it s own national
Because Bernadotte was in the service of the UN, the UN
sought to improve security for its agents; one avenue is
the ability to hold someone or something responsible for
the injuries suffered by the organization (the UN). Now it
is unclear whether or not UN was able, like how states
can, to do so.
So here, the UN asked the ICJ for an advisory opinion.
WON the UN could make an international claim against
states, in this case Israel, as responsible for the death of
its agent Count Folke Bernadotte.
The ICJ said the UN, is at present, the supreme type of
international organization, and it could not carry out
the intention of the founders if it as devoid of
international personality. While it is conceded that
original international legal personality belongs to the
main actors of international law, namely states, the
United Nations has an international legal personality
through the fact that its member states, by the very
fact of creating such an organization, must have
transferred some of their powers over the
organization. The claim brought by UN is not based upon
the nationality of the victim but rather upon his status as
an agent of the Organization.
In what cases may the ICJ exercise its jurisdiction?
1. Contentious cases – Claim by a state against
another state
2. Advisory opinions – Court will render an
opinion regarding a specific case presented to it.
ICJ of IL can make advisory opinions. SC in the
PH cannot.
Hugo Grotius – Dutch scholar who is considered to be the
father of international law. His primary work was De Jure
Balli ac Pacis written in 1623.
Natural law is a product of men living together in a
society capable of understanding that certain rules were
necessary for the preservation of society.
Individuals can be subject to international law only in
specific instances or only under certain circumstances,
and these are: (1) When they exercise the right to self-
determination, and (2) When the Laws of Conflict or Laws
of War are governing.
Right to self-determination – you have an identifiable
group of people, whose rights to freely pursue political,
social, economic, and cultural rights have been denied.
So here, you have a minority whose rights are not
recognized by the government, their practices in
religion, traditions, beliefs and etc. are not recognized.
If they are now recognized, you would expect them to
secede from the state. Under PIL, they may now be given
the right to separate. But what if the state does not
allow? You would now expect an armed conflict
(International Armed Conflict –Rules of War – Between at
least two states; Non-International Armed Conflict – Rules
of Conflict – Between the State and an Armed Group
[internal disturbance])
International Criminal Crime – for international armed
conflict. International Criminal Crimes: Genocide, Crimes
Against Humanity, etc
If not international armed conflict, it is still murder, not
now in ICC, but in the domestic courts.
Not an international armed conflict if walay third state
except in the case if it is against organized armed group
kay the can be called an National Liberation Movement.
If it is against NLM, it is still considered an International
Armed Conflict kay according to the 4 Geneva
Conventions, these groups are still subject to the Rules of
War. Like using the rule on (the rights of) Prisoners of
War, and not the ordinary domestic crime.
Right-bearer na siya (groups, individuals), kay naa
naman ang mga rights sa Geneva Convention.
Refugees. Those subject to persecution by his state due
to race, ethnicity, etc. If persecuted, they would want to
leave their country, which persecuted him/them. S now,
if they wish to go another state and they are accepted by
another state, your status at this point is as asylum-
seeker kay interviewhon paman ka. If accepted na ka, it
will now give rise to an international obligation of the
receiving state, under the Refugee Convention, not to
return the refugee to his original state. Principle
involved here Principle of Non-Refoulement. (French)
Public International Law v. Private International
Law
Private International Law – deals with conflict of laws.
Filipino married Australian. Divorced. And married
again. The previous spouses had properties in PH, AUS,
and JAP. Which law would now govern the distribution
of the properties of the Filipino, PH, AUS, JAP?
Read this part in the book of Shaw. The history of
Modern Public International Law.
International Law Commission. Its role and its essence. It
is a specialilized body created by the UN. IL is based
largely on practice. So UN pulled all experts to codify
these practices, practices of international law.
Another one is the writing of the progressive
development of international law.
November 20, 2017
Three Regimes/Divisions of PIL
Laws of Peace:
1. Law of Treaties
2. Law of the Sea
3. Diplomatic Relation, etc.
Laws of War:
1. Jus ad Bellum – legality of engaging in war
2. Jus in Bello – legality of conduct of war (e.g. you
only target lawful targets like combatant to the
armed conflict. Kill for a military purpose – no
liability. If kill a civilian, not a combatant – crime
of murder is committed but punished AS a war
crime. Punishable as a war crime under the Rome
Statute in the ICC, not in the local scene.)
Law of Neutrality
 Governs the conduct of states not engaged in
war.
*There are four exceptions in exercising the Use of Force.
To be discussed later.
* Laws of War would take over the Law of Peace in times
of war.
*A combatant who surrenders, should not be killed, and
should be treated as a Prisoner of War (PoW). If Kim Jong
Un would kill a PoW, he would be prosecuted in the ICC for
a war crime.
*”Belligerent state” – a state-participant in a war.
Neutral State v. Neutralized State
Neutral State – a state not participating in war, declared
itself as neutral
Neutralized State – Territorial integrity is subject to its
promise not to engage in war. (e.g. Belgium, Luxembourg
– they used to be under superpowers before. Now they are
not under these superpowers because they have already
promised not to engage in war)
Is PIL a “Law”?
 Depends on the lens that you use.
 John Austin’s lens = PIL will not be a law
because ingon siya it is the sense of obedience to
a higher authority. There is no “higher
authority” in PIL, not even US or China.
 ICJ has compulsory jurisdiction* (e.g. if a state
decides to submit itself in disputes in bilateral
treaties, and not to multilateral treaties, pwede
ni)
 Perspective of Law as Effective = PIL may be
considered a law because states DO obey IL.
Why States Obey IL
1. Self-interest Theory
2. Acculturation Theory
3. Legitimacy Theory (states are observed to obey
PIL because states believe in the soundness of
the law)
4. Positivist Theory (With regard to conventions)
*Some forms of peaceful enforcement of PIL: voluntary
compliance, force of public opinion, self-help, treaty-based
enforcement
*Pacta Sunct Servanda: treaties must be obeyed in good
faith
*Problem with IR is there’s no international police. So
decisions cannot even be implemented (e.g. PH winning
case against CH, asa na). IOW, there is the lack of a
“supreme authority.”
Doctrine of Self-help (Gawas ni’s exam, sure ko)
 Normally the means by which the state enforce
their rights e.g.
Retorsion – lawful act designed to injure the
wrongdoing of another state
Example: 1. Cutting of trade relationships; 2.
Lifting of aid
Reprisal – act that is normally illegal but
rendered legal by a prior illegal act committed
by another state
- Controversial
Use of Force Exceptions
1. UN Charter
2. UN Security Council authorizing use of force in
favor of another state
3. UN Security Council authorizing use of force in
favor of a regional organization e.g. North
Atlantic Treaty Organization
4. Self-defense, which is valid and recognized
under the UN Charter
*Gone are the days wherein IL is state-centered. There is
now even the internationalization of human rights. (I am
human and I have rights)
 SOURCES OF PIL
(Formal / Material)
 Art. 38(1), Statute of ICJ:
Primary:
1. Int’l Conventions
2. Int’l Custom
3. General Principles of Law
Subsidiary:
4. Judicial decisions and teachings of most highly
qualified publicists
*State A and B entered into a treaty. It is binding because
it entered into the treaty, so they gave their respective
consents (Formal). At the same time, it is a material
source because
“Primary” v. “Subsidiary”
 Schwarzenberger:
“law-creating” processes v. “law determining”
 Shaw:
Overlapping of sources
- Let go of the idea of Primary v.
Subsidiary because these sources can
sometimes overlap. See Paramilitary
and Military in and against Nicaragua.
 Travaux preparatoires:
- Idea of “Hierarchy of sources” was not
carried out
1. International Conventions/Treaties
 “… Whether general or particular and
establishing rules expressly recognized by the
contesting States”;
 The term “convention” includes (and actually
means) “treaty”
 Other terms: agreement, pact understanding,
protocol, charter, statute, act, covenant,
declaration, engagement, arrangement, accord,
regulation and provision.
 Law-making treaties v. Contract treaties
o Law-making treaties – operate as
binding rules and are similar to
statutes. It imposes the same
obligations on all the parties to the
treaty and seeks to regulate the parties’
behavior over a long period of time.
They regulate conduct more or less
permanent in character. It mandates a
particular form of behavior just like
statutes. They create international
principles or norms. Conduct-forming
siya.
o Contract treaties – not sources of
international law, but merely legal
transactions. They resemble contracts.
The observance of the contract depends
on both contracting parties and their
willingness to observe. These are non-
conduct-forming treaties.
*Treaties can be entered between a state and an
international organization.
ASSIGNMENT for Saturday – Until treaties, specifically
before Reservations.
1. A treaty is not just a codification of work of CIL, but
also a BLANK
2. Date when the Vienna Convention was entered into
force
3. What do you call the document that is needed in
order for one person to represent the state for
negotiation, adoption or authentication of a text of a
treaty
4. Heads of State, BLANK, and ministers of Foreign
Affairs, for the purpose of performing all acts relating
to the conclusion of a treaty.
5. BLANK is the moment when such treaty becomes
binding
6. There are states which did not participate in the
negotiation but would want to become party, what do
you call the process of which they can be party to such
treaty?
7. Give 2 instances when reservation is not allowed
International Commission – Drafts, codifies treaties.
 If example 5 states ra naa sa convention, it will
only be usually called a “treaty”, “not
convention”
 Carry a different name kay it’s not created by
the UN
 “Charter” is used when purpose of the treaty is
to create a court.
 “Protocol” is also a treaty which is an
amendment to an already existing treaty.
o E.g. Geneva Convention initially, and
subsequently there were four
“protocols” to the Geneva Convention.
2. Custom
Art. 38(1), ICJ Statute: “… as evidence of a general
practice accepted as law”;
Sec. 102, Restatement (Third: “CIL results from a general
and consistent practice of states followed by them from a
sense of legal obligation”)
TWO ELEMENTS:
1. Objective Element (general practice)
2. Subjective Element (opinion juris sive
necessitatits) (Hardest element to establish
because it is mental)
Paquete Habana Case
FACTS: Fishing vessels of Spain were captured by USAF
as prize of war. It was established that the vessels, which
were not armed, were not aware of the existing war
between Spain and US and blockade ordered by the US
government against Cuba.
HELD: It is CIL that coast fishing vessels, pursuing their
vocation of catching and bringing in fresh fish, are
exempt, with their cargoes and crews, from capture as
prize of war. This the US also recognized as law as shown
in the various treaties it had entered into in the past.
Court first evaluated WON there were domestic laws.
There were none. So the court looked into international
law to see whether there are principles and laws, which
would address the subject. Indeed, there were CIL that
were found, and these are:
1. In 1403 and 1406, Henry IV of England issued
orders protecting fishermen of foreign states;
2. 1521 Treaty between Emperor Charles V and
Francis I of France;
3. 1536 Dutch edicts which permitted herring
fishing in time of war;
4. During the American War, Louis XVI of France
addressed a letter to his admiral exempting
fishermen from capture
5. 1785 Treaty between US and Prussia calling for
the protection of fishermen during war;
6. 1848 Treaty between US and Mexico,
incorporating the terms in the 1785 US-Prussia
Treaty.
1. How much practice is required? (duration, consistency,

repetition, and generality requirements)
 Short passage of time will not necessarily bar it.
 Time or passage of time does not bar “instant CIL” or
“accelerated CIL”
2. What is the valur of a state’s (1) abstention or failure to protest

against a norm and (2) protest against a norm?
3. Are dissenting and non-participating States bound by custom?
4. What evidence is required for opinio juris?
5. May treaties be invoked as evidence of customary law? May

they create customary law?
6. Is there a normative hierarchy in customary law?
7. Would declarations of law adopted by the UN G.A. constitute
presumptive evidence of accepted international law,
irrespective of actual state practice?
8. What constitutes state practice?
 Official acts of heads of states.
North Sea Continental Shelf case
The Federal Republic of Germany and the
Netherlands entered into an agreement in 1964 drawing
a lateral line between Netherland and the FRG. FRG also
entered into the same agreement with Denmark with
respect to the North Sea Continental Shelf. Unable to
agree on other terms and condition, the parties brought
to matter to the ICJ. Netherlands and Denmark asked the
ICJ to apply the principles in the 1958 Geneva
Convention on the Continental Shelf (“equidistance
principle”), which was, however, not yet in full force for
all parties to the dispute at that time (because FRG has
not yet ratified the convention). FRG argued that it
cannot be bound by the “equidistance principle” and
argued for the application of “just and equitable share
principle.” Was the “equidistance principle applied to
FRG?”
Principle: Short passage of time is not necessarily a bar
to the formation of CIL. What is controlling is the state
practice, including that of states whose interest are
specially affected, must be extensive and virtually
uniform with regard to the provision in such a way as to
show a general recognition that it is a binding law.
Exercise of territorial jurisdiction of courts go extra if
crime involves acts of terrorism a.k.a. a case of terror.
Anglo Norweigan Fisheries Case (UK v. Norway, ICJ
Reports, 1951)
Key principle: A state, that from the outset consistently
objects to a particular practice, is not bound by any rule
of alleged CIL which may arise from the practice
(Persistent Objector/Dissenter Doctrine).
ICJ: “In any event, the 10-mile rule would appear to be
inapplicable as against Norway, inasmuch as she has
always opposed any attempt to apply it to the Norweigan
coast”
*Master the US v. Nicaragua case. Relevant for
midterms.
Nicaragua v. USA, ICJ Report (1986)
Key Principles:
1. General CIL must be determined by the general
practice of the states and not just by the states
party to the dispute before the ICJ. Opinio juris
may be deduced from the attitude of the
Parties concerned and that of states to
certain General Assembly Resolutions.
2. The prohibition on the use force is jus cogens.
3. Principle of “non-intervention” is CIL and,
therefore, not affected by treaty stipulation.
4. CIL can exist alongside treaties.
Legality of the Threat or Use of Nuclear Weapons
Case (ICJ Advisory Opinion, 1996)
Key principles:
1. General Assembly Resolutions may show the
formation of opinion juris. Even if they are not
legally binding, they may sometimes have
normative value.
2. A State is barred to do an act only when it is so
prohibited under a treaty or customary
international law. Restriction to state’s
sovereignty is not presumed. (see Lotus case)
Asylum Case (Columbia v. Peru, ICJ Report, 1950)
Key principle: 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 such a manner so as to become binding on
the other party. An alleged regional custom demands
greater uniformity in practice than a general custom.
*See 2016 case on Nuclear Disarmament
December 12, 2017
GENERAL PRINCIPLES OF LAW
- We get this from the domestic practice of states
 Recognized by civilized (peace-loving) nations;
 Aimed at providing solutions to controversies
where a treaty or customary law provides no
guidance;
 “Law” can refer to both “international law” and
“municipal law elevated as international law”
(common municipal law)
 Examples: estoppel, good faith, exhaustion of
local remedies, prescription, etc.
 See:
o Barcelona Traction Case (Belgium v.
Spain, 2nd Phase, ICJ Report, 1970)
o South-West Africa Case, (2nd Phase, ICJ
Report, 1966)
Nottebohn Case (Liechtenstein v. Guatemala)
 Nottebohn was a German, living in Guatemala
for 34 years.
 Guatemala (allied) became an enemy state of
Germany (axis)
 Dagan to Liechstenstein kay naa iyang igsuon
didto, so nahimo siyag citizen sa Liechtensten
 Pagbalik niyag Guatemala, gidakop siya for being
a German citizen.
 In this case, there was no relationship between
Liechtenstein (P) and Nottebohm (P). the
change of nationality was merely a subterfuge
mandated by the war. Under this circumstance,
Guatemala (D) was not forced to recognize it.
Dismissed.
 What is required for purposes of diplomatic
protection is not citizenship, but real and
effective nationality.
Barcelona Traction Case
 General principle applied: Separate and distinct
ang personality sa stockholders ug company.
Netherland v. Belgium (PCIJ [1937] [The River Meuse
Case])
Key principle: The Statue expressly direts the
application of “general principles of law recognized
by civilized nations”, and principles of equity have an
established place in the legal system.
Q: What general principle of law was applied by the PCIJ
in deciding the case?
A: Doctrine of Clean Hands (a.k.a. Clean Hand Doctrine or
a.k.a. in the PH: in pari delicto: those who come to courts
must come with clean hands)
South-West Africa Case (2nd Phase, ICJ Report, 1966)
Key principle: Actio popularis (the action to
obtain remedy by a person or a group in the name of the
general public without being, or directly representing,
the victim) is not recognized as a general principle of
law. In international law, it refers to the action taken by
a State in the name of the international community even
if it is not directly the victim.
 Purpose was to administer Namibia and teach
them how to self-govern so that they may be an
independent State. But what South Africa did
was to attempt to annex the Southwest Africa
and there was even the apartheid or the racial
discrimination. International committee saw
this as a breach, a material breach to the trust
reposed upon South Africa.
JUDICIAL DECISIONS AND PUBLICISTS
 Subsidiary means only
 Subject to Art, 59 of the Statute of the ICJ (the
decision of the court has no binding force except
between the parties and in respect of that
particular case); in other words, there is no
doctrine of “stare decisis” in ICJ decisions;
 ICJ decisions are independent of judicial
decisions of other newly created tribunals such
as the ICC, etc. for lack of formal relationship
between these tribunals.
 Law of the Case v. Stare Decisis (same court) v.
Res Judicata (Decided case binds all courts)
OTHER POSSIBLE SOURCES OF PIL
 Acts of international organizations (e.g. UN
and its Organs like General Assembly
Resolutions)
 Soft Law (guidelines of conduct which are
neither strictly binding norms of law nor
completely irrelevant political maxims, e.g. UN
Declarations)
Soft Law Hard Law
o Guidelines of o Norms, the non-
conduct which are observance of
neither strictly which will result
binding norms of to State
law nor responsibility
completely o Law as it
irrelevant political currently stands
maxims. o e.g. Treaty, CIL,
o Law as it should be Jus cogens
in the future norms
o e.g. UN
declarations
 o No responsibility,
probably naa siyay
iyang own
mechanism.
Probably it has its
own compliance
mechanism.
 Equity (Justice)
See:
o The River Meuse Case (Netherlands v.
Belgium, PCIJ Reports, 1937)
o “Ex aequo et bono” (equity over rules):
Art. 38(2), ICJ Statute
1. Ex Aequo et Bono - there is the requirement of
agreement by the parties. This presupposes that the
parties have agreed to dispense with any applicable
international law but the parties have submitted
themselves to the ex aequo et bono jurisdiction of the ICJ
by permitting the ICJ to resolve the case on the basis of
equity instead of the applicable rules of international law
2. Non Liquet - there is no requirement of agreement.
This is when the court observes that there are neither
conventional or customary rules of international law
that can be applied to the case, general principles of
equity may be applied. This is part of the general
jurisdiction of the ICJ at the time that the parties have
submitted all issues to the dispute to the court. This is
some sort of “filling the gaps” between the sources of
international law.
DIFFERENCE:
In 1, there are rules applicable but parties agree not to
be bound and let the court to apply equity. In 2, there are
no rules applicable.
BAR REMINDER: IT’S NOT
MYSTERY, BUT MASTERY
Custom v. Usage/Comity
Custom is a practice that states believe themselves to be
under a legal obligation to follow (opinion juris) [ex.
State immunity]
Usage or Comity is a practice that states generally follow
without believing themselves legally bound to do so. [ex.
alternat]
Hierarchy of the Sources of PIL
 In the travaux preparatoires (preparatory work)
of Art. 38, it was suggested that thte sources as
listed should indicate hierarchy of sources but it
was not carried out. There was only the
agreement to categorize these sources as either
“primary” (3) or “subsidiary” (2)
 Hence, except for JUS COGENS (peremptory and
non-derogable norms of general international
law), one source is not to be treated as
always superior to the other. The sources of
international law are not therefore arranged in a
strict hierarchical order.
Guidelines in determining which source of PIL prevails
over the other:
 Lex posterior derogate priori
 Lex posterior generalis non derogate priori
speciali
 Lex specialis derogate legi generali
Jus Cogens v. Erga Omnes
Status of the norm v. duty of the state towards the
international community
 Art. 53, Convention on the Law of Treaties
(Vienna, 1969): A treaty is void if it conflicts
with a peremptory norm of general
international law, “a norm accepted and
recognized by the international community
of States as a whole as a norm from which no
derogation is permitted and which can be
modified only by a subsequent norm of
general international law having the same
character”
 Examples: prohibition on the use of force, of
genocide, slavery, gross violation of the right of
people to self-determination, racial
discrimination, and torture.
 Erga Omnes – obligations of a state to the
international community (as a whole, not just to
a particular state) [See: Barcelona Traction
Case] (ex. Not to commit/fail to punish
international crimes; not to violate people’s right
to self-determination)
 Erga Omnes Inter Partes – obligations of a state
towards a specific group of states.
What will bind sovereign States?
 Public International Law (See: Art. 38 of the
ICJ Statute on the Sources of International Law:
(1) Primary (3) and (2) Subsidiary (2);
 Unilateral Declaration of State Doctrine
(See: Nuclear Test Cases and the 2006 ILC
Guiding Principles on Unilateral Declaration
of States): A unilateral declaration binds the
State international when: (See also: New Zealand
v. France and Australia v. France)
- Publicly made and manifesting will be
to bound
- Made by an authority vested with the
power to do so (Heads of State, Heads of
Government, and Ministers of Foreign
Affairs, and other officers representing
the State in specified areas and within
their competence)
- Made orally or in writing
- Addressed to the international
community or to specific state entity
- Stated in clear and specific terms
- Consistent with jus cogens
 - Will not bind third states who do not
accept it
- Not validly revoked
Philippine Practice in 20-30 minutes
Law of Treaties the rest
December 16, 2017
PHILIPPINE PRACTICE
(On Sources of International Law)
Sec. 2, Art. II, 1987 CONST.: The PH renounces war as an
instrument of national policy, adopts the generally
principle 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.
Kuroda v. Jalandoni (83 Phil. 171)
In accordance with the GAPIL of the present day,
including the Hague Convention, the Geneva Convention
and significant precedent of international jurisprudence
established by the UN, all those persons, military or
civilian, who have been guilty of planning, preparing or
waging a war of aggression and of the commission of
crimes and offense consequential and incidental thereto,
in violation of the laws and customs of war, of humanity
and civilization, are held accountable therefor.
The rules and regulations of the Hague and Geneva
Conventions form part of and wholly based on the
generally accepted principles of international law. (…)
USA v. Guinto (182 SCRA 645)
The rule that a state may not be sued without its
consent is now expressed in Art. XVI, Sec. 3, 1987
CONST, is one of the GAPIL that we have adopted as part
of the law of our land under Art. II, Sec. 2.
In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition
is expressed in the maxim PAR IN PAREM, NON HABET
IMPERIUM. All states are sovereign equals and cannot
assert jurisdiction over one another. A contrary
disposition would, in the language of a celebrated case,
“unduly vex the peace of nations”
Jus imperii v. Jus gestionis: There is no question that
the USA, like any other state, will be deemed to have
impliedly waived its non-suability if it has entered into a
contract in its proprietary or private capacity. It is only
when the contract involves its sovereign or
governmental capacity that no such waiver may be
implied. This was our ruling in USA v. Ruiz, where the
transaction in question dealt with the improvement of
the wharves in the naval installation at Subic Bay. As this
was a clearly governmental function, (…)
Reyes v. Bagatsing (125 SCRA 553)
The PH is a signatory of the Vienna Convention
on Diplomatic Relations adopted in 1961. The second
paragraph of its Article 22 reads: “The receiving State is
under a special duty to take appropriate steps to protect
the premises of the mission against any intrusion or
damage and to prevent any disturbance of the peace of the
mission or impairment of its dignity.” The Constitution
“adopts the GAPIL as part of the law of the land.” (…)
Holy See v. Rosario
THE LAW OF TREATIES
Q: May the rules found in the Vienna Convention on the
Law of Treaties be applied in the following?
a. A dispute involving a “treaty” between State A
and IMF-World Bank
b. A dispute involving a 1960 treaty between State
A and State B
c. A dispute involving a 1995 treaty between State
A and State B which are not parties to the VCLT
*When you say Rules, determine first if CIL or
progressive.
*Which provisions are CIL and which provisions are
Progressive.
*If CIL, does not matter if parties are “parties” to the
VCLT kay CIL baya.
MIDTERM (2nd week January; target is until item E)
*Geneva Convention was initiated and drafted by the
International Red Cross.
January 6, 2018
Two ways that a treaty may be confirmed (gikan sa
someone not authorized):
1. Expressly
2. Impliedly – eg. By the conduct of the State.
Example of that conduct: When that state itself
cites that very treaty which was entered by
someone, so here, estoppel applies.
Consent to be bound
B. Consent to be bound
Article 11: “Consent of a State to be bound by a treaty
may be expressed by signature (Art. 12), exchange of
instruments (Art. 13) constituting a treaty, ratification,
acceptance, approval (Art. 14) or accession (Art. 15), or
by any other means if so agreed.”
Ratification occurs only when instruments of
ratification are exchanged between the contracting
states or are deposited with the depositary. (Arts.
2(1)(b) and 16)
By Accession, a third state which did not take part in the
negotiation, consents to be bound by the treaty and
ratifies it.

Q: Is the consenting state now bound by the terms or
substantive provisions of the treaty?
Legal obligations before Treaty enters into force
Article 18: (CIL na ni na article)
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.
January 8, 2018
State that already expressed its consent to be bound but
treaty is not yet entered into force = “contracting party”
“Act” meant in defeat the object and purpose = treaty
could no longer be fulfilled, or impossibility
Real test: WON it can still really be implemented. If
municipal law, pwede man i-amend, it doesn’t
automatically become a policy of the state.
Reservation – reserving state wants to exclude one
provision (diri, di jud maapply)
Understanding Declaration – state would consent to the
application of a provision of a tereaty, it will only be
applied in a particular context. (Okay rami ani nga
article, but if ever iapply ni namo, application would
mean this and that)
(called for recitations on this day)
January 11, 2018
Interpretation of Treaties
Basic Rules:
1. Text of the Treaty (in good faith + ordinary
meaning + context + object and purpose of the
treaty)
2. Intent of the Parties
3. Object and Purpose of the Treaty
Means of the Interpretation: (supplementary means of
interpretation)
a. Preparatory works (travaux preparatoires)
b. Circumstances of conclusion (contemporaneity)
Article 31.1 of the VCLT: “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”
Invalid or Defective Treaties
 Head of State or Government disregards
constitutional requirement 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 Representative (Art. 51)
 Coercion of State by the threat or Use of Force
(Art. 52)
 Contravenes Jus Cogens (Art. 53)
Termination of Treaties
 Pacta Sunt Servanda (Art. 26)
 Grounds for Termination, Denunciation,
Withdrawal, or Suspension:
a. Application of the Treaty (Art. 42)
b. Application of the VCLT (Art. 42)
c. Consent of all the parties, e.g.
“Desuetude” (Art. 54)
d. Discharge through Material Breach*
(Art. 60)
e. Impossibility of Performance* (Art.
61)
f. Fundamental Change of
Circumstance* (Art. 62)
g. Emergence of new Jus Cogens (Art. 64)
h. Outbreak of War (for bilateral treaties)
Material Breach:
 Meaning/Scope: Alleged breach must be
 Material Breach by one state in a multilateral
treaty
 Automatic termination/suspension?
 Not applicable in humanitarian law treaties
 Consider provisions that remain binding after
breach
 Consider the effect severance of diplomatic or
consular relations
 A material breach is also an Internationally
Wrongful Act; so consider “circumstances that
preclude wrongfulness of an act” (e.g.
“countermeasures”)
 Read: Namibia, Jurisdiction of ICAO and
Gabcikovo cases.
Problem:
States A and B entered into a Diplomatic
Relations Treaty that allows both states to establish
diplomatic missions in the territory of another. When
State A discovered that State B used its embassy for
surveillance and espionage in the territory of State A, the
latter arrested and detained State B’s Ambassador and
staff. When State B accused State A of violating their 4. Who shall represent the Philippines in the
Diplomatic Relations Treaty, State A invoked “material different stages of treaty formation
breach on the part of State B that caused the termination 5. When shall treaties enter into force in the
of the said treaty. Was the action of State A in accordance Philippines?
with international law? 6. May the president refuse to submit a treaty to
the Senate for its concurrence?
January 13, 2018
Midterms type of exam:
Material Breach is not applicable to issues that are 30-40% MCQ
humanitarian in character. The rest, Essay

Treaties established for the protection of persons during

armed conflict. In times of war, this regime does not
apply.

When two states have entered into 5 treaties, suddenly

two immature leaders come into the picture. What do
you think happens to the 5 treaties? Refer to Art. 63,
VCLT.

We use now the word countermeasures instead of

reprisal.

Elements for a valid countermeasure:

1. IWA
2. Proportionate (commensurate to the IWA)

*There must be an IWA, and the affected state’s

countermeasure must be directed against state, which
did the wrongful act.

Fundamental Change of Circumstance

- vs. rebus sic stantibus
- Not implied, but applicable only in the most
exceptional circumstances

Procedure in Invalidation, Termination or

Suspension of Treaties
- Exclusive grounds: Under VCLT only (Art. 42)
- GR: Should affect the whole treaty (Art. 44)
- Subject to loss of right (Art. 45)
- GR: Cannot invoke internal law (Art. 46)
- Must NOTIFY IN WRITING the other party of its
claim and the proposed measure (Art. 65(1))
- If no objection within a general period of 3
months, the concerned State may carry out the
measure proposed through a duly signed
instrument
- If there is an objection, the concerned State must
first avail of pacific or peaceful means of dispute
settlement under Art. 33 of the UN Charter before
it can invoke the ICJ jurisdiction

Philippine Practice
1. State the relevant provisions in the 1987
Constitution that affect international law
2. What is the role of the DFA in the conclusion of a
treaty, international or executive agreement by
the Philippines?
3. Distinguish: International Agreement, Treaty,
and Executive Agreement. Who decides whether
it is IA, treaty, or EA?