CHAPTER 1 THE NATURE OF INTERNATIONAL LAW

What is International Law? Public International Law v. Private International Law

o A body of rules and principles of action which are binding upon civilized states in Public International Law Private International Law
their relation to one another
Referred to as International Law Referred to as Conflict of Laws
o A law which deals with the conduct of the states and of international
organizationsand with their relations inter se, as well as with some of their relations Governs the relationship between and Domestic law which deals with cases where foreign law intrudes in the
with persons, whether natural or juridical among states and also their relations domestic sphere where there are questions of the applicability of foreign
Scope of International Law with international organizations and law or the role of foreign courts
individual persons
a. Regulation of space expeditions
b. Division of the ocean floor
c. Protection of human rights
d. Management of international financial system
e. Regulation of the environment INTERNATIONAL LAW AND MUNICIPAL LAW
f. Preservation of peace Dualism v. Monism
Is International Law a Law? Municipal Law International Law
o Henkin: It is probably the case that almost all nations observe all principles
of international law and almost all of their obligations almost all of the time Dualist or Pluralist As to source Product of local Treaties and custom grown among
Theory custom or states
o Brierly: The ultimate explanation of the binding force of all law is that man, whether
*when of legislation
he is a single individual or whether he is associated with other men in a state, is international or
constrained, in so far as he is reasonable being, to believe that order and municipal law are As to relations they Regulates relations Regulates relations between
in conflict, regulate between individual states
not chaos is the governing principle of the world in which he lives Municipal lawmust persons under the
Some Theories about International Law prevail state
Theory Austin: Law consists of commands originating from a sovereign and backed up by threats
Of sanction if disobeyed As to their substance Law of sovereign Law between sovereign states
International law is not law because it does not come from a command of a sovereign over individuals

Consensual Theory International law derives its binding force from the consent of states Monism or Two theories:
Treatiesexpression of consent monistic theory A. Municipal law subsumes and is superior to international law
Customvoluntary adherence to common practices, is seen as expression of consent *International and B. International law is superior to Domestic Law (supported by Kelsen)
municipal laws
Natural Law Theory Law is derived by reason from the nature of man belong to only one
International lawapplication of natural reason to the nature of the state-person system of law
 Municipal Law in International Law CHAPTER 2 SOURCES OF INTERNATIONAL LAW Part 1
o Follows the dualist tradition and blocks domestic law from entry into the What Sources are
international arena Domestic Lawsfound in statute books and in collections of court decisions
o A state which has violated a provision of international law cannot justify itself by Classifications of Sources
recourse to its domestic law 1. Formal sourcesvarious processes by which rules come into existence
o A state which has entered into an international agreement must modify its law to a. Legislation
make it conform to the agreement b. Treaty making
International Law in Domestic Law c. Judicial decision making
o How does international law become part of domestic law for dualists? d. Practice of states
1. Doctrine of Transformation 2. Material sourcesidentify what the obligations are
a. It must be expressly and specifically transformed into domestic law a. State practice
through the appropriate constitutional machinery such as an act of b. UN Resolutions
Congress or Parliament c. Treaties
b. Treaties do not become part of the law of a state unless it is consented to by d. Judicial decisions
the state e. Writings of jurists
2. Doctrine of Incorporation Art. 38(1) of the Statute of the International Court of Justice
a. They become part of the law of the land 1. International conventionsestablishing rules expressly recognized by contesting
o Philippines adheres to the dualist theory and at the same time adopts states
the incorporation theory and thereby makes international law part of domestic law 2. International customevidence of a general practice accepted as law
o International law can be used by Philippine courts to settle domestic disputes 3. General principles of law recognized by civilized nations
o Art. 2, Sec. 2 of the Constitution: only customary law and treaties which have 4. Subsidiary means for determination of rules of law
become part of customary law become part of Philippine law by incorporation a. Judicial decisions
Conflict between International Law and Domestic Law: International Rule b. Teachings of the most highly qualified publicists
o Before an international tribunal, a state may not plead its own law as an excuse for Restatement of Foreign Relations Law of the US
failure to comply with international law 1. Customary Law
o Exception: Art. 46 of Vienna Convention = in cases where the constitutional violation 2. International agreement
was manifest and concerned a rule of its internal law of fundamental importance 3. General principles common to the major legal system
o Manifest = objectively evident to any State conducting itself in the matter in Sources of International Law
accordance with normal practice and in good faith 1. Custom
Conflict between International Law and Domestic Law: Municipal Rule 2. Treaties
o Domestic courts are bound to apply the local law 3. International agreements
o Should a conflict arise between an international agreement and the Constitution, 4. Generally recognized principles of law
the treaty would not be valid and operative as domestic law 5. Judicial decisions
o Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the Supreme 6. Teachings of highly qualified publicists
Court to declare a treaty unconstitutional; however, even if declared Custom or Customary Law
unconstitutional, the treaty will not lose its character as an international law o A general and consistent practice of states followed by them from a sense of legal
obligation
o Elements:
1. Material factorhow state behaves
o Elements of Practice of sates or usus
 a. Durationmay be either short or long; not the most important element CHAPTER 2 SOURCES OF INTERNATIONAL LAW Part 2
b. Consistencycontinuity and repetition Treaties
c. Generality of the practice of statesuniformity and generality of practice need o Determine the rights and duties of states just as individual rights are determined by
not be complete but it must be substantial contracts
Opinio Jurisbelief that a certain form of behavior is obligatory o Binding force comes from the voluntary decision of sovereign states to obligate
Dissenting states: subsequent contrary practice themselves to a mode of behavior
o Dissenting states are bound by custom unless they had consistently objected to it Treaties and Custom
while the custom was merely in the process of formation o If the treaty is intended to be declaratory of customary law, it may be seen
o It is also possible that after a practice has been accepted as law, contrary practice as evidence of customary law
might arise o Adherence to treaties can be indicative also of adherence to practice as opinio juris
Evidence of state practice and opinio juris o If treaty comes later than a particular custom, treaty should prevail
a. Treaties o If a later treaty is contrary to a customary rile that has the status of jus cogens,
b. Diplomatic correspondence custom will prevail
c. Statements of national leaders and political advisers o The later custom, being the expression of a later will, should prevail
d. Conduct of states o A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm
Instant Custom of general international law
o A spontaneous activity of a great number of states supporting a specific line of o Preemptary norm of general international law a norm accepted and recognized by
action the international community of States as a whole as a norm from which no
The Martens Clause derogation is permitted and which can be modified only by a subsequent norm of
Until a complete code of laws of war has been issued, inhabitants & belligerents are general international law having the same character
protected under the rule on the principles of the law of nations as they result from: General Principles of Law Recognized by Civilized Nations
usages of civilized people, laws of humanity & public conscience o This has reference to principles of municipal law common to the legal systems of the
2. Psychological or subjective factorwhy they behave the way they do world
Judicial Decisions
o Decisions of the court have no binding force except between the parties and in
respect of that particular case
o Decisions do not constitute stare decisis
o Decisions of the ICJ are not only regarded as highly persuasive in international
circles but they have also contributed to the formulation of principles that have
become international law
Teachings of Highly Qualified Writers and Publicists
o Publicists institutions which write on international law
a. The International Commission
b. The Institut de Droit International
c. International Law Association
d. Restatement of Foreign Relations Law of the US
e. Annual publication of the Hague Academy of International Law
Equity
o When accepted, is an instrument whereby conventional or customary law may be
supplemented or modified in order to achieve justice
o Where 2 parties have assumed an identical or a reciprocal obligation, one party Chapter 3 THE LAW OF TREATIES
which is engaged in a continuing non-performance of that obligation should not be Various names of Treaties
permitted to take advantage of a similar non-performance of that obligation by the a. Conventions
other parties b. Pacts
o The Courts recognition of equity as part of international law is in no way restricted c. Covenants
by the special power conferred upon it to decide a case ex aequo et bono, if the d. Charters
parties agree thereto e. Protocols
o Kinds of Equity: f. Concordat
1. Intra legemwithin the law; the law is adapted to the facts of the case g. Modus Vivendi
2. Praeter legembeyond the law; used to fill the gaps within the law 1969 Vienna Convention on the Law of Treaties
3. Contra legemagainst the law; refusal to apply the law which is seen as unjust o Governs treaties between states
Other Supplementary Evidence o Entered into force in January 1980
1. UN Resolutionsgenerally considered merely recommendatory but if they are Definition of Treaties
supported by all the states, they are an expression of opinio juris communis o An international agreement concluded between States in written form and
2. Soft LawNon-treaty Agreements; international agreements not concluded as governed by international law, whether embodied in a single instrument or in 2 or
treaties and therefore not covered by the Vienna Convention on the Law of Treaties more related instruments and whatever its particular designation
o Administrative Rulesguide the practice of states in relation to international o Even oral agreement can be binding, however, only written agreements that are
organizations new, come under the provisions of the Vienna Convention
o Characteristics to make it binding:
1. Commitment was very specific
2. There was a clear intent to be bound
Functions of Treaties
a. Sources of international law
b. Charter of international organizations
c. Used to transfer territory, regulate commercial relations, settle disputes, protect
human rights, and guarantee investments

Different Kinds of Treaties

Multi lateral Treaties Open to all states of the world; Create the norms which are the basis for a general rule of
law
Can either be Codification Treaties or Law Making Treaties, or both

Treaties that create Operate through the organs of the different states
Collaborative Mechanism 1. Universal scope
2. Regional

Bilateral Treaties In the nature of contractual agreements which create shared expectations such as trade
agreements of various forms; Contract Treaties
 The Making of Treaties 5. Coercion of a State by the threat or use of force
1. Negotiationforeign ministries, diplomatic conferences 6. Violation of jus cogenstreaty is void if, at the time of its conclusion,
2. Power to negotiate it conflictswith a preemptory norm of general international law
3. Authentication of textsigning of the document; so that states will know the Amendment and Modification of Treaties
contents & avoid misunderstanding o Amendmentformal revision done with the participation, at least in its initial stage,
4. Consent to be bound: by all the parties to the treaty
a. Signature o Modificationinvolves only some parties
b. Exchange of Instruments Termination of Treaties
c. Ratification o Terminated or suspended according to the terms of the treaty or with the consent
d. Acceptance of the parties
e. Approval 1. Material Breach
f. Accession a. Repudiation of the treaty not sanctioned by the present Convention
g. Other means if so agreed b. Violation of a provision essential to the accomplishment of the object or purpose
5. Accession to a treatystates which did not participate in the initial negotiation of the treaty
may express their consent to be bound 2. Supervening Impossibility of Performance
6. Reservationsunilateral statement, however phrased or named, made by a o Results from the permanent disappearance or destruction of an object
State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby indispensable for the execution of the treaty
it purports to exclude or to modify the legal effect of certain provisions of the treaty 3. Rebus sic stantibus
in their application to the State o Resulted in a radical transformation of the extent of the obligations imposed by it,
7. Entry into force of treatiesdate agreed or once consent given (but may, under certain conditions, afford the party affected a ground for invoking the
provisional application can also apply) termination or suspension of the treaty
8. Application of treaties Procedure for the Termination of Treaties
o PACTA SUNT SERVANTAevery treaty in force is BINDING upon the parties and 1. Notify other parties of ground and measure proposed
must be PERFORMED by them in GOOD FAITH 2. If no objection, carry out the measure proposed
o A party may NOT INVOKE INTERNAL LAW as justification for its failure to perform a 3. If there is an objection, follow Art. 33
treaty Authority to Terminate
o It is binding upon each party in respect of its entire territory unless a different o Belongs to the one who has authority to enter into the treaty
intention appears in the treaty or is otherwise established o In the Philippines, authority to conclude treaties is shared between the Senate and
9. Interpretation of Treaties the President
a. Objective approachinterpretation according to the ordinary meaning of the Succession to Treaties
words Clean Slate Rule: newly independent state is not bound to maintain in force or to
b. Teleological approachinterpretation according to the telos or purpose of the become a party to any treaty by reason only of the fact that at the date of the
treaty succession of states, the treaty was in force in respect of the territory to which the
c. Subjective approachhonors special meaning given by the parties succession of state relates
Invalidity of Treaties
1. Errorrelates to a fact or situation which was assumed by that State to exist at
the time when the treaty was concluded and formed
2. FraudState has been induced to conclude a treaty
3. Corruption of a Representative of a State
4. Coercion of a Representative of a State
 SUBJECTS OF INTERNATIONAL LAW Part 1 a. To be free from external coercion
STATES b. To overthrow effective rulers and establish a new governmentthe assertion
Subjects of International Lawentities endowed with rights and obligations in the of the right of revolution
international order and possessing the capacity to take certain kinds of action on c. Of people within an entity to be given autonomy
the international plane o International law has not recognized a right of secession from a legitimately existing
o Those with international personality state
Objects of International Lawthose who indirectly have rights under or are Recognition of Statesthe act of acknowledging the capacity of an entity to
beneficiaries of international law through subjects of international law exercise rights belonging to statehood
Statespredominant actors; a community of persons more or less numerous,
permanently occupying a definite portion of territory, independent
of externalcontrol, and possession an organized government to which the great Declaratory Theory Constitutive Theory
body of inhabitants render habitual obedience
Commencement of their Existence Recognition is merely Recognition constitute a state
declaratory of the
o State, as a person of international law, should possess the following qualifications:
existence of the state
(Montevideo Convention of 1933 on Rights and Duties of States)
1. Permanent populationPEOPLE-a community of persons sufficient in number Its being a state depends It is what makes a state a state and confers legal personality on the entity
and capable of maintain the permanent existence of the community and held upon its possession of
the required elements and
together by a common bond of law not upon recognition
2. Defined territoryan entity may satisfy this requirement even if its boundaries
have not been finally settled, if one or more of its boundaries are disputed, or if States may decide to recognize an entity as a state even if it does not have all the elements
as a state
some of its territory is claimed by another state
o An entity does not necessarily cease to be a state even if all its territory has been
occupied by a foreign power or if it has otherwise lost control of its territory
temporarily
3. Governmentthat institution or aggregate of institutions by which an
independent society makes and carries out those rules of action which are
necessary to enable men to live in a social state
o It is the National Government that has legal personality and it is such that is
internationally responsible for the actions of other agencies and instrumentalities of
the state
o Temporary absence of government does not terminate the existence of a state
4. Capacity to enter into relations with other States
SOVEREIGNTY independence from outside control-Principle of Self-determination
sovereignty as an element of a state is related but not identical to this
principle-by virtue of this, people freely determine their political status and
freely pursue their economic, social and cultural development
Levels of claim to Self-determination
1. Establishment of New Statethe claim by a group within an established state to
break away and form an new entity
2. Does not involve Establishment of New Statesimply involves claims
 STATE RESPONSIBILITY Part 4
PRELIMINARY OBJECTIONS
o Claim of denial of justice may be lost due to failure to answer some preliminary CALVO CLAUSE REJECTED
objections o A provision in a contract to the effect that under no condition shall the intervention
a. Lack of nationality link of foreign diplomatic agents in any matter related to the contract be resorted to
b. Failure to exhaust national remedies o This was rejected in North American Dredging Company Claim due to the right to
1. Purpose: to protect international courts from being swamped with cases which seek redress is a sovereign prerogative of a State and a private individual has no
are better handled locally right to waive the States right
2. Application: cases founded on diplomatic protection or on injury to aliens EXPROPRIATION OF ALIEN PROPERTY
REPARATION o Expropriation can be internally wrong if it is done contrary to the principles of
1. Obligation to make full reparation for the injury caused by the internationally international law
wrongful act o 1962 UN General Assembly Resolution on the Sovereignty over Natural Resources
2. Injury consist of any damage, whether material or moral, arising a. Expropriation shall be based on grounds or reasons of public utility, security or
in consequenceof the internationally wrongful act the national inters which are recognized as overriding purely individual or private
3. Responsible State may not rely on the provisions of its internal law as justification interests, both domestic and foreign
for failure to comply with its obligation b. In such cases, the owner shall be paid appropriate compensation in accordance
with the rules in force in the State taking such measures in the exercise of its
sovereignty and in accordance with international law
CHORZOW FACTORY CASE (GERMANY v. POLAND)
Facts:
The action of Poland which the Court has judged is not an expropriation but is a seizure of property
which could not be expropriated even against compensation.
Held:
If follows that the compensation due to German Government is not necessarily limited to the value of the
undertaking at the moment of disposition, plus interest to the day of payment. Such a limitation might result in
placing Germany and the interests protected by Geneva Convention, in a situation more unfavorable than that in
which Germany and these interests would have been if Poland had respected the said Convention. Such a
consequence would not only be unjust, but also and above all incompatible with the aim of the Convention that
is the prohibition of the liquidation of property, rights and interests of German nationals and of companies
controlled by German nationals in Upper Silesia.
The essential principle contained in the actual notion of an illegal act is that reparation must wipe out all
the consequences of the illegal act and re-establish the situation would have exited if that act had not been
committed.
Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution
in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by
restitution in kind or payment in place of its such are the principles which should serve to determine the
amount of compensation due for an act contrary to international law.