PUBLIC INTERNATIONAL LAW • Who can request for advisory opinion:

− any state (nay process, mag require

recommendation sa general
INTRODUCTION
assembly or otherwise, sometimes,
Module 1
even if without it, the court may
accept nonetheless the court may
Guided by these questions: request for advisory opinion),
Is PIL law? − any international organization
How is PIL formed? • When one seeks for an advisory opinion
How IL is enforce if ever this will be enforced? from the ICJ, it is phrased in question form

Reparation for Injuries Case (ICJ Advisory

PUBLIC INTERNATIONAL LAW Opinion 1949)
It is a body of rules and principles governing the − A Swedish officer who worked in the UN was
conduct of civilized states or which are binding killed in Israel
upon civilized states. (traditional definition of PIL − Relevant question: Who can bring claim
according to DBL). between UN and Sweden?
• The personality of the UN was for the
Subjects are actors in International Law who have
purpose of claiming reparation in a form of
international legal personality advisory opinion and not in behalf of the
Legal personalities: negotiator as a Swedish national but as an
1. Possess rights and obligations under IL officer or official of the UN. Sweden may
2. Has the capacity to maintain, to possess have opted to also file a claim against Israel
such rights and obligations but on the account of the fact that the official
of the UN also, of course, was a Swedish
1987 Sec. 101, Third Restatement American national.
Law Institute of the Foreign Relations Law of
− Was there a discussion on whether it should be
the US:
the UN? And if so, what’s the capacity? Or
Consists of rules and principles of general
whether it should be Sweden and in what
application dealing with the conduct of states and of
capacity? What about the heirs?
international organizations and with their relations
• The heirs are not subjects but merely
inter se, as well as with some of their relations with
objects.
persons, whether natural or juridical.
− this is the definition that reflects the current
CIL on fair and just treatment of foreigners or
and true concept of PIL
aliens (Akehurst:):
− Does not only cover States, but as well as
• The moment a state validly accepts an alien
international organizations and persons.
or a foreigner in its territory, it is CIL that the
receiving or host state will have to treat the
Note: DO NOT USE “according to...” INSTEAD say
foreigner fairly and justly vis-a-vis its own
“as reflected...” “as can be” “as expressed...”
nationals.

Internationally Wrongful Act

DISTINGUISH SUBJECTS FROM OBJECTS OF IL
(Popular question in the Bar) − If an alien is maltreated, it shall be a breach in
(answer should be based on the concept of IL or is considered an internationally wrongful
internatonal legal personality) act (IWA).
• Subjects - bearer of rights with the power to − If it is an IWA yet the victim is an individual, how
maintain and pursue such rights do you bring this matter to the international
level when the individual (victim) was
• Objects - not a bearer of rights nor can pursue
maltreated in the territory of another but he
claims
doesn’t have a personality to bring that claim,
ICJ Two Types of Jurisdiction:
what should be done? (Ex. A Norwegian
1. Jurisdiction in contentious case (nay parties,
national as a victim in the Phils)
nay ni file ug case, naay respondents)
2. Jurisdiction to render advisory opinions (nay mu
request for advisory opinion)
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 • The Norwegian should convince his State to Kosovo Case
bring a claim in the international level (ICJ) − Under International Humanitarian Law, while
for reparation. generally, internal armed conflicts are domestic
• Espousal of claim - the State’s act of concerns, the moment the conflict is between
bringing an individual’s claim to the people exercising their right to self
international level. determination thru for instance a national
• Diplomatic Protection- a form of espousal of liberation movement, the state is governed by
claim IL (in Geneva Conventions)
• Take note: This is not an action in behalf of
the national, proper party in the international Can individuals under IL be considered subjects as
level is the State. IL?
• Petitioner is Norway, Respondent is the
Philippines, Claim is Reparation for
Damages REGIMES OF IL
Why is Norway the offended party when it
only espoused the claim? Laws of Peace
o It is because while indeed the victim − Gen rule: when war occurs, laws of peace will
is the Norwegian national, the be replaced by new regime (not applicable in
maltreatment of the Norwegian times of war)
national happens to be a breach of − Ex. freedom of expression
an IL obligation on the part of the − There are certain norms, rights, and principles
Phils in favor of Norway. Hence, the that will be overtaken by the laws of war in so
proper party is Norway. far as belligerent parties are concerned
− If you want to know whether a particular act of − There are laws of peace and particular rights
the state is lawful, the validity of the act of the enjoyed in times of peace that still continue to
state will be governed or to be determined by be enjoyed and respected even in times of war.
the law applicable by the time the act is How do we call these rights?
committed. • Non-derogable rights

Two Types of Human Rights:

Vinuya vs Romulo 2010 1. Derogable rights
− Petitioners are members of MALAYA LOLAS, a − rights may be suspended by the time being,
non-profit org established for the purpose of especially In times of emergency.
providing aid to victims of rape by Japanese − Ex. Right to Peacefully Assemble, Right to
Military during the second world war freedom of expression
− Petitioners sought assistance from the 2. Non-derogable rights
executive department in filing a claim for − Ex. Right to life
reparation against the Japanese. • State parties in UCCR may ask if they may be
permitted to derogate certain rights in times of
emergency. There is a process, you notify the
If individuals are mere subjects of IL, why is then human rights committee.
the definition of the current nature of IL includes
individuals? Laws of War
Divided into Two Parts:
Are mere individuals subjects to IL? 1. Jus ad bellum
• They are Secondary subjects − laws in determining when is it lawful to
• Akehurst: Some groups can enjoy certain rights use force, armed force in particular.
in the international level even without the state − Ex. Self defense
espousing the claim. This is when individuals 2. Jus in bello
can become subjects. − there is already war, governs the conduct
of war.
National Liberation Movement
− People exercising the right to self Laws of Neutrality
determination. − non-parties of war
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
CHARACTERISTICS of IL o Whereas, ICJ is widely based on
1. International law is largely based on consent consent. There are various kinds of
a. Explicit consent: Compulsory Jurisdiction of the
− in treaties ICJ
− When a state takes part in a treaty, it (1) Advanced Consent
accepts the obligations created by − ex. Parties of the UN who signed
the treaty. the charter were required to
b. Implied declare in advance, if they want to,
− customary international law (practice their consent to the jurisdiction of
based); the ICJ in certain matters. Like in
− CIL becomes binding upon all states the Phils., when we sign the UN
except those states who are Charter, we become a party to the
persistent objectors. UN, we declare that we consent to
2. Horizontal Legal system any suit filed before the ICJ if it
− there is no hierarchy of laws and involves interpretation of treaty to
institutions, unlike in domestic legal system which the Phils. is a party.
− no higher authority imposing laws or norm (Compulsory Jurisdiction of the
upon its constituents because states are ICJ. Though compulsory, it is still
sovereign states, they are co-equal. (Billiard based on consent, advance
Ball theory) consent)
3. Self-Help − If compulsory:
− lack of enforcement State A files a case against State
− Normally, IL is complied with or obeyed B. But the latter never declared in
because of the Doctrine of Self Help. advance that it may be subjected
Affected states would just avail of this to the jurisdiction of the ICJ, then it
doctrine in order to coerce, encourage or will not be subject of the
compel compliance of IL. (retortion, reprisal, jurisdiction.
counter measures) (2) Consent based on treaty
− There is no clear method in enforcing IL. But
there are other ways, aside from self help: • International law
a. treaty based enforcement − laws are horizontal, there is no hierarchy
− But Jus Cogens is superior and all others
are equal
DIFFERENCES BETWEEN DOMESTIC LAW AND
INTERNATIONAL LAW
• Domestic Law PUBLIC INTERNATIONAL LAW V. PRIVATE
− 3 functions: INTERNATIONAL LAW
1. Law making (legislative) • Private International Law
2. Law enforcing (executive) − It governs the activities of individuals,
3. Law determining (judiciary) corporations, private entities when they
cross national border and in controversies
Note: UN Gen Assembly Resolutions are merely involving foreign elements. It is also termed
expressions and sentiments of the members of the conflict of laws
UN Assembly. − the objective of the law is not really to
regulate the relationships of individuals or
Why can’t we liken the ICJ with SC? corporations, it’s more of a set of rules in
o In domestic law, our courts can exercise order to identify what law is applicable to a
jurisdiction with or without the consent of given dispute, more of identifying which law
the parties involved. (Ex. Plaintiff files a would apply
case, court sends summons to − For instance, you have a British national
defendant, whether defendant files an who went to Singapore to work and
answer or not, the court proceeds. And purchased condo units in SG and deposited
judgment is binding.) some dollars in SG in a Swiss bank. The
British national found a beautiful Filipina,
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 married her and decided to retire in PH, • Lack of enforcement power of the UN Security
during which time the couple has also Council
acquired real estates in PH. Let us assume − Even the effort of the UNSC to make
that the British national died here in PH. In recommendations or even refer a case for
order to distribute the estate of the British pacific dispute settlement, it’s not even
national (estate: properties in SG, dollar obligatory for the security council to act on
deposits, inheritance in England from his any request.
parents). Which law should apply? (This is a − UN resolutions were reactionary. The world
question of private international law) court, ICJ, the UN general assembly, the
o Importance of knowing which law to UNSC are never meant to serve as a
apply: To answer controversy on substitute to domestic legal system. While
how to distribute the estate of the they are there to prevent and maintain
deceased British national peace internationally, we must not lose sight
o Importance of knowing how to of the fact that these organizations that we
distribute the estate: In case he has created will have to deal with sovereign
children, it should be determined states, we never lost that sovereignty when
how much is the share of the we signed the UN Charter. Never think that
children and the Filipina wife the UN is the substitute of our domestic
o Possible law that will apply is legal system.
Philippine law (some properties are − The UNSC can authorize the use of force.
in PH), SG law because there are The use of force under Art. 24 of the UN
also properties there and deposits, Charter is prohibited but there two
English law because he also has exceptions:
properties in England. The law that (1) under Art. 51, the right to self-
resolves that is called private defense either individually or
international law. Same thing with collectively;
contracts entered by business (2) when it is under a UNSC-
establishments. authorized resolution.
− The UN can authorize use of force in three
• Public International Law ways:
− Whether State A breaches its obligation (1) own forces actually contributed by
towards State B insofar as diplomatic member states;
immunity matter is concerned. An (2) allow a member state to use force
ambassador in State A was arrested by against an aggressor state;
State B where State A has an embassy? It (3) regional organizations that have
is a question of public international law been created precisely for the
because it governs the relationship between purpose to maintain regional peace
State A and B. and security.

LACK OF ENFORCEMENT OF PIL SELF-HELP MEASURES

Example on how difficult it is to enforce 1. Retaliation
international law: − legal or non-legal
• No international police and sheriff − Involves the use of force
− To some extent there are instances where − The term retaliation is supposed to be an
the Security council may have used its illegal term and it connotes something
power which resulted compliance to negative but retaliatory measures are also
international law (what we call success recognized in some treaties and
stories of security council - gulf war) but organizations like WTO.
there are also failures on the part of the − You have short use of force, retaliatory
security council measures that a member state of the WTO
can use when for instance another state
member of the WTO has breached its
commitment to the WTO. Typical example
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 would be when for instance a member of entry to or exit from the ports of the
WTO discriminates a product of another offending state of means of
state by imposing high tariffs in order to communication and transportation.
discourage the use of that product and (note: this may be violative of the
therefore protects its own local products. If it UN Charter)
is not justified, it is considered as a breach d. Non-intercourse - suspension of all
to its commitment under the WTO. The intercourse with the offending state,
victim state may also do the same to the particularly of trade and commerce.
products of the breaching state. e. Boycott - concerted suspension of
− Retaliation has a broader connotation, it commercial relations with the
may involve the use of force, it may not also offending state, with particular
involve use of force. reference to a refusal to purchase
− It does cover the notion of retorsion, goods.
reprisal, and countermeasure.
4. Countermeasure
2. Retorsion − the commission by one State of an
− is a LAWFUL act designed to injure the internationally wrongful act may justify
wrongdoing state another State injured by that act in taking
− done in retaliation for unfair treatment and non-forcible countermeasures in order to
acts of discrimination of another state. procure its cessation and to achieve
− Example: levy of high [discriminatory] tariffs reparation for the injury.
on goods coming from the other state; − AKA “legitimate reprisals” or legally
cutting off economic aid. permissible reprisals.
− Note: It is lawful because there is no legal − More or less similar to retorsion than
obligation to provide economic aid; reprisal.
exception is under special treaty provisions. − Can never involve the use of force.
Not much limitation because it is lawful. − Most confined concept because the term
countermeasure can only be used in the
Bar Exam Question: concept of state responsibility.
State A attacked state B through a missile. 20 days − Countermeasure is a concept that we apply
after, state B also attacked state A with more or only in response to internationally wrongful
less the same amount of missile. May the measure act. Retorsion on the other hand can be
be justified under the concept of reprisal? utilized in response to other harmful or
• This may not be justified under reprisal. Art. undesirable acts of other states which may
24 prohibits the use of force unless it is for not necessarily amount to an internally
self-defense or if it’s authorized by the wrongful act.
UNSC. This is not reprisal but retaliation.

3. Reprisal
− is UNLAWFUL or normally illegal but which
are rendered lawful/legal by a prior
unlawful/illegal act committed by the other
state
− unlawful acts in retaliation for
reciprocal/proportional unlawful acts of
another state.
− One limitation is the use of force
− May be done thru:
a. Freezing of the assets of the
nationals of the other state.
b. Embargo - forcible detention or
sequestration of the vessels and
other property of the offending state.
c. Pacific blockade - prevention of
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 another state
SOURCES OF INTERNATIONAL LAW • Charter
Module 2 − a treaty that creates an organization
• Statute
− treaties that create courts
When we speak of sources of international law,
we’re actually also talking about the sources of
obligations of states in international law.
SOURCES OF INTERNATIONAL LAW
Bar Exam Question:
POSSIBLE SOURCES OF OBLIGATION
What are the sources of international law?
1. Sources of international law
What are the sources of international law that the
2. Unilateral act or declaration of state
ICJ may apply in the contested cases before it.
• the sources of international law are clearly
PERSPECTIVE/ VIEWS OF THE SOURCES OF manifested and expressed in Article 38 (1)
INTERNATIONAL LAW (not kinds) in the Statute of the ICJ
1. Material
− when we speak of material, we are looking Article 38(1) of the Statute of the International
Court of Justice provides:
at the source as where we locate these
sources of international law (it is where we The Court, whose function is to decide in
accordance with international law such disputes as
see the sources of international law)
are submitted to it, shall apply:
− if your concern is where to locate the
a) international conventions, whether
obligation of a state and then your answer is
general or particular, establishing rules
it is in the treaty. Then you are looking at
expressly recognized by the contesting
the treaty as a material source of
States;
international law.
b) international custom, as evidence of a
2. Formal
general practice accepted as law;
− when we speak of formal, we are looking at
c) the general principles of law recognized
the manner, the process, the way by which by civilized nations;
that international law had been created that
d) judicial decisions and the teachings of
made it binding the most highly qualified publicists of the
− A treaty will be binding not for whatever various nations, as subsidiary means for the
reason but simply because of the consent determination of rules of law.
given by the parties to the treaty. When a
state becomes a party to the treaty then that There is no hierarchy among these sources.
state accepts the terms and conditions of
the treaty. So the basis of the binding force Category of Sources:
of the treaty is consent. 1. Primary (Law-creating sources)
− This source creates the law. (convention,
Other names for a treaty (the names reflect the
CIL, general principle of law)
nature of the treaty) 2. Subsidiary (Law-determining)
• international convention
− to be precise, it should not be called
− actually similar to a treaty subsidiary sources, Article 38 (1) provides
− governed by the law of treaties. that these are the subsidiary means for the
− A treaty is called convention if that determination of rules of law. It did not
treaty is created at the instance of UN. create the law but it is where you find the
• Pact law.
• Accord
• Protocol
− intended to supplement or amend LAW-CREATING SOURCES
existing treaties, usually called
additional protocol. I. INTERNATIONAL CONVENTIONS/TREATIES
• Concordant “International Conventions whether general or
− the treaty entered into by the pope with particular and establishing rules expressly
recognized by the contesting States”
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
− The term “convention” includes and actually II. INTERNATIONAL CUSTOMS
means “treaty” Art. 38(1), ICJ Statute –
− Other terms: agreement, pact, understanding, “International custom as evidence of a general
protocol, charter, statute, act, covenant, practice accepted as law”’
declaration, engagement, arrangement, accord,
regulation and provision. Sec. 102, Restatement (Third) –
“Customary international law results from general
Law-making treaties v. Contract treaties and consistent practice of states followed by them
from sense of legal obligation.”
Law-making treaties Contract treaties
Operate as binding Not sources of Two elements:
rules, similar to statutes international law, A. Objective Element (general practice)
but merely legal B. Subjective Element (opinio juris sive
transactions necessitates)
Imposes the same Treaties which DBL: I would like for students, during exams, to
obligations on all the resemble contracts
parties to the treaty and (reciprocal)
state completely, the opinio juris sive
seek to regulate the necessitates. This has been asked in the bar
parties’ behavior over a many times: What is opinio juris sive necessitates.
long period of time This is a basic concept, please master.

Purpose is to conclude Observance of the Why is general practice considered objective

an agreement on contract depends on element?
universal substantive both contracting parties • Because you can assess it objectively;
legal principles; to (performance of one because you can see it; because there is
regulate conduct depends on the tangible evidence to this.
other’s) and their
willingness to observe
By subjective element:
The only type of treaty Generally, not
It is more of the behavioral aspect of the state. Did
that will be considered perceived to be a
as source of source of international the state follow the norm because of the belief that
international law. law but doesn’t mean it it is a legally binding norm, or did it just follow the
can’t be a source of norm out of courtesy?
obligation.
Since it’s a treaty or o Custom – requires opinio juris
agreement, it still o Usage – absence of that belief that the norm is
creates an obligation. legally binding. Practices that have been
Similar to statutes in Similar to a contract; practiced for so long out of convenience; out of
nature only provides private friendly relations; not out of belief that there is
Meaning: It provides for obligations; not really legal obligation to follow the practice.
norms regulating the obligations relating to
*This is also a bar exam question.
conduct of the parties to how a state would
a treaty conduct itself in relation
e.g. torture convention – to other states. Note that only states create CIL (State practice)
provides for rules e.g. treaty between
regulating how a state state A and B, A Is CIL static?
performs its powers over guarantees that 40% of • No.
even its own individuals. its products will be sold
e.g. UNCLOS, Genocide to B at certain terms; How do you replace CIL?
Convention: provide for obligation created is to
• With another norm of the same character.
norms of conduct, the sell at certain price but
way states behave in this is not regulating There has to be a good amount of state
relation to other states. how state A would practice and opinio juris.
behave in relation to
state B.
INTERNATIONAL CUSTOMS

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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
Jus cogens/Compelling Law government did. And so, it sued before the ICJ.
− While there is no hierarchy among sources of Barcelona traction, operating in Spain and
international law, one type of international law registered in Canada, alleged that it has a
principle considered superior to all others is the cause of action against Spain. However,
peremptory norm of general international law: Canada is not willing to exercise diplomatic
jus cogens. Here, derogation is never protection.
permitted. e.g. prohibition against genocide, − Under rules of diplomatic protection, only the
torture, slavery, etc. See Art. 53, VCLT. state under which the victim is a national, can
− How to determine if jus cogens? exercise diplomatic protection.
• We need to see decisions of courts − A corporation, a juridical person, has a
affirming their character. We need to see nationality. In international law this is
opinions of highly qualified publicists determined thru the place of registration. Kung
affirming the jus cogens character of a asa gi register si corporation, mao iya
norm. citizenship.
− ICJ: Offense committed by Spain has nothing to
Jus cogens v. Erga omnes do with jus cogens and erga omnes obligation.
Erga Omnes Jus Cogens Thus, court had to stick to direct injury test and
Obligation or duty of applied a domestic law: the principle of distinct
the state to Non-derogable norm and separate personality of a corporation. It
all other states would have been different if the case involved
erga omnes obligation because if so, any state
Ex. Don’t commit Ex. Prohibition would have legal standing.
genocide; against genocide − ICJ: If you want to know legal standing,
Prosecute those who o 1st: Analyze the norms involved. If jus
commit cogens and then erga omnes, all states
genocide have legal standing. Recall that erga
omnes is an obligation to the
obligations of a state gives rise to erga international community as a whole and
towards the omnes not an obligation to a specific state.
international Because of this, any state will have legal
community standing.
corresponding norms o 2nd: Erga omnes inter partes obligation –
obligation of jus There is an obligation owing not to the
cogens to prohibit international community, not to a
violation of the norm specific state, but to a certain group of
states. When does this happen? When
State has obligation e.g. rule or norm that
there is a regional convention. e.g.
to punish torture torture should be
Obligation is created by a multilateral
because it is prohibited or
treaty consisting of 10 states. That
prohibited punished, norm that
obligation is owed to all other members
slavery is not allowed
of the convention. You have an erga
omnes inter partes: any of the 9 other
What then is relevance of knowing that a norm is
states will also have legal standing.
jus cogens and therefore it creates erga omnes?
o 3rd type of legal standing: The state that
• Relevant when it comes to legal standing in suffers injury. Apply this in the absence
international law. of erga omnes and erga omnes inter
partes.
Barcelona Traction Case
How did erga omnes play in the Barcelona traction Paquete Habana Case
case? What constitutes state practice?
− Involved a corporation who suffered damages • Use the ruling in Paquete Habana case where
in the hands of Spain because of the regulation the court made use of certain governmental
that resulted to its bonds issued not being acts. What constitutes state practice? Official
honored anymore because of what the Spanish acts. They would be acts of executive,
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 pronouncements of executive, even decision of How much practice is required? Is duration of the
courts, issuance of administrative agencies, practice relevant?
executive offices, statutes. When state enters • What the court said in North sea cases is
into treaty or international agreements, they are simply that a short period of time will not
also evidence of state practice. necessarily bar the formation of CIL.
Meaning duration is really important.
• Because we want to determine uniform and
Nicaragua Case consistent practice, how else can we do this
How do we determine opinio juris? if we don’t analyze the practice for a long
• May be deduced from the attitude of the period of time. How can we establish opinio
parties concerned to certain general juris if we just observe it for a short period of
assembly resolutions. time. Thus, duration is important. But it’s not
the only criterion for practice to become a
What do we mean by ‘how the state behaves in state practice for purpose of determining
certain general assembly resolutions’? CIL.
• e.g. Iceland authors a resolution asking the
body to agree on that resolution that death Instatant/Accelerated CIL
penalty should not be imposed. As the − It’s possible for CIL to exist even in a short
author of this resolution, it is very clear that period of time. This is instant CIL a.k.a
Iceland believes that death penalty should accelerated CIL.
be prohibited. What about other states? − e.g. in the area of terrorism:
What is their attitude towards the voting? o Before 9/11, the court where crime was
You look at the voting. Those who ratify, they committed has jurisdiction over the
believe that it is a legally binding norm. offense. Even when Americans were
Those who do not, they don’t believe that it victims of terrorism in Indonesia, US
is a legally binding norm. yielded jurisdiction to Indonesian courts
to punish the terrorist.
Different types of resolutions: o After 9/11, international community felt
1. Unanimously voted that Al Qaeda had become a serious
• no state rejected, the belief is clear threat internationally. States have
2. Resolution passed without voting changed their mindset. Instead of limiting
• most persuasive resolution jurisdiction e.g. where the crimes were
3. Resolution passed by a divided GA committed in Kenya, the US courts
• dinhi mu matter. You visit the voting. exercised jurisdiction against the
offenders.
In Nicaragua? What UNGA Resolution was used as − It is possible for CIL to be accelerated usually
evidence of opinio juris and what customary because of extraordinary circumstances. Guide
international law was covered in that UNGA is North Sea Continental Shelf cases.
resolution?
• UNGA Resolution 26-25 How do we determine if practice is extensive or
not?
What were the principles involved in Nicaragua? • We look at the practice of the states
• Principle of Non-intervention. ICJ said this especially affected by the norm. (Relevant
is CIL. ICJ went to analyze state practice state practice)
and opinio juris. Opinio juris may be inferred • It is extensive to the extent of the practice of
or determined thru attitude of states towards the relevant states affected by the norm.
the UNGA Resolution 26-25 1970 Friendly • e.g. If question is WON the fishing zone
Relations Declarations. claimed by state would extend to 12 nautical
miles and assuming UNCLOS is not existing
What evidence is required for opinio juris? yet: Of the 192 states, where surely some
1. UNGA resolutions states are landlocked, we only count those
2. Treaties – evidence of both state practice states, 100 states for example, that claim
and opinio juris fishing zones. We will only determine how

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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 extensive the practice is, in so far as the 100 cases occurring in the high seas. The
states are concerned and not the 192. widespread practice is abstention of that
alleged norm exercised by Turkey.
Bar Exam Question: − ICJ: The only way an abstention can be the
What is the value of Permanent Court of norm itself is when the abstention, apart from
International Justice/PCIJ’s decision? state practice, is coupled with opinio juris.
• Still persuasive even if replaced by the ICJ. − For abstention to create a norm, the act of
abstaining should be with the belief that
abstaining is a legal obligation.
ABSTENTION
What is the value of state’s abstention or failure to
protest against a norm? Nicaragua v. US
• E.g. 100 states, only 40 practiced the norm. − May treaties be invoked as evidence of CIL?
The rest abstained from practicing the norm. • Even if CIL is codified in a treaty, it will not
Is this enough to bar the formation of CIL? lose its character of being a CIL. It can still
be a source of obligation independently of
convention.
Lotus Case − Nicaragua: Filed case against US for violation
− This case involved a collision of vessels in the of international law, including prohibition of use
high seas. Unlike today, in 1920s we didn’t of force. It invoked Article 2 (4) of the UN
have definitive rule on jurisdiction involving charter.
collision in the high seas. Now, this has already − US: Don’t invoke the UN charter because it is a
been settled. We follow flag state rule (where multilateral treaty. We already made reservation
vessel is registered) and nationality rule. that we’re not submitting to the ICJ if it involves
− Because of this collision, certain number of interpretation of a multilateral treaty. ICJ has no
crew members died. The watchman of the other jurisdiction.
vessel (this vessel was registered in France) − Nicaragua countered: Art 2 (4) is not a
was blamed for the collision and was criminally conventional rule. It’s actually a codification of a
prosecuted in Turkey. CIL. Prohibition of use of force is CIL long
− France: objected to the exercise of jurisdiction before UN Charter.
of Turkey. The rule is flag state. Because you − US countered: If that’s CIL codified, it must
are suing the watchman of a French vessel, have lost its character as CIL.
French court has jurisdiction over him. − Held: A CIL which happened to be codified in a
− Turkey: flag state rule has never ripened to treaty or convention will not lose its character
CIL. What applies is a settled rule that as CIL because CIL can co-exist independently
restrictions upon the independence or with treaty law. Both can exist alongside each
sovereignty of states cannot be presumed. other.
− DBL: The exercise of criminal jurisdiction is the
exercise of sovereignty and because restriction
to sovereignty is not presumed, it is only when Legality of the Threat or Use of Nuclear
there is clear conventional international law or Weapons
CIL that sovereignty may be restricted. − An advisory Opinion of the ICJ
Remember that international law deals with − There was a question as to WON states are
sovereign states. barred from possessing nuclear weapons and
− The ICJ said that there was neither customary that whether it would be considered as a threat,
international law nor conventional international and this threat of use is prohibited.
law that prohibited the exercise of territorial − If you have visited the text of the advisory
criminal jurisdiction and so restriction to state’s opinion of the ICJ, the voting has been
sovereignty cannot be presumed. unanimous in some issues but there was no
− France counterargued: It cannot be that a definitive opinion of the ICJ on whether or not a
state can exercise criminal jurisdiction over state is legally barred under International Law
collision cases in the high seas. If we look at from using nuclear weapons.
state practice, states have abstained from − But of course in some context, definitely it will
exercising criminal jurisdiction over collision be prohibited. For instance, judges of the ICJ
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 were almost unanimous on the issue of whether III. GENERAL PRINCIPLES OF LAW
the use of nuclear weapons would be legitimate − Principles of Law that are of Domestic Origin
in times of war. In times of war, the rules of − It is aimed at providing solutions to
International Humanitarian Law will apply and it controversies where treaty law or customary
prohibits among others the use of weapons that law provides no guidance.
are “indiscriminate” (unable to distinguish − Note: We’re not talking about International Law
between combatants and civilians). Since already but we are talking about Municipal Law
Nuclear Weapon is considered indiscriminate that had been transposed in the International
weapon, thus it is prohibited. Level (Ex. Estoppel, good faith, etc)
− But they are DIVIDED on the issue of whether
in the extreme circumstance of the need to
preserve the existence of the state, a state Barcelona Traction Case
may be permitted to use nuclear weapons − Domestic Law was applied in order to resolve a
by way of self-defense. dispute. And that domestic principle states that
− The purpose of this Advisory Opinion is to show “a corporation is a distinct and separate
the processes or judicial thinking of the ICJ, that personality”.
in arriving at a specific answer to specific
questions, the ICJ made use of GENERAL
ASSEMBLY RESOLUTIONS in determining Southwest Africa Case
whether there is this Customary International − the issue was whether a non-injured state may
Law answering a certain question of bring the action of other states at the
International Law. international level under the concept of actio
− Key Principle: General Assembly popularis. The ICJ noted in 1966, actio
Resolutions, while they are NOT BINDING, popularis had not yet been recognized as a
they are NORMATIVE VALUE. Meaning that principle of law, where states who are not
they can show the formation of opinio juris. injured states may represent the injured state
− Principle in the Lotus Case: A state is barred for certain claims in the international level.
todo an act only when it is so prohibited under a − Southwest Africa used to be a colony of
treaty or CIL. Indeed restriction to state Germany, and when it was to be granted
sovereignty is not presumed. independence, because in the 1960’s this was
− There are states who are already committed not the beginning of decolonization period (the U.N.
to be nuclear states. But there are also states initiated the move that colonizing powers should
that remain and insisted that they remain begin giving colonized territories their freedom).
nuclear states for various reasons, one is − But since Southwest Africa was perceived to
for self-preservation. have less capabilities to govern itself, they
placed Southwest Africa under trusteeship to
What is the effect of abstention by some states in South Africa. But what happened was, instead
regard to a particular norm? of helping Southwest Africa to learn how to
• The abstention may bar the formation of CIL govern themselves, the black people in
if that abstention is: Southwest Africa were discriminated against. In
1. Significant, such that it will negate the fact there was an effort to annex Southwest
idea of extensive state practice or Africa, instead of giving them full independence,
general state practice. to become part of South Africa occupied by
2. Abstention must however be with the white people.
belief that abstaining or refusing to − Neighboring states wanted to bring a claim
exercise a particular conduct, is before ICJ on the ground that Southwest Africa
because of the belief that the state is does not have international legal personality
legally bound not to exercise the act or yet, and so therefore it should require other
the conduct. (opinio juris) states to bring the claim before the ICJ. ICJ
then noted the basis of the standing was
actually what is called actio popularis and the
court noted that, at least in 1966 there is no
such actio popularis as having been

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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 transposed from domestic law into OTHER POSSIBLE SOURCES OF
international law. INTERNATIONAL LAW:
− actually refer to future sources of International
Law
Netherlands v Belgium
− passing through Netherlands and Belgium is 1. Acts of International Organization
the river meuse and may also be passing 2. Soft Law
through several states. The natural resource of − These are but guidelines on the part of
water passing through that river will be states in implementing domestic legislation.
considered in international law as a COMMON What that means is that when a state does
RESOURCE. Being a common resource, a not observe the guideline/soft law, there is
regime is applicable to that common resource, no corresponding state responsibility
thus states would be governed by certain because there is no internationally wrongful
principles one of which is the so called act if you violate this soft law. You may only
EQUITABLE USE of the common/shared be a subject of criticism by the international
resource. Equitable Use means that a state community.
cannot use a shared resource to your − However, if the norm violated would result
advantage that will also result to a prejudice or into state responsibility because it qualifies
disadvantage of another state. as an internationally wrongful act, then we
− Belgium at one point diverted the flow of the call that law hard law.
river meuse in such a manner that it will use 3. Equity
substantially the shared resource to the − another source of international law which
disadvantage of Netherlands. Netherlands then can actually be considered as part of
complained that Belgium cannot do that, in fact general principle of law.
they had an agreement implementing the 4. Ex Aequo Et Bono
principle of shared resource. However, Belgium − Art 38 par.2 of the ICJ statute, simply
contended that Netherlands had no cause of means a decision in which equity
action because earlier Netherlands also had overrides all other rules.
constructed canals diverting the flow of the river − The list of sources in par. 1 of Art. 38, shall
meuse to its agricultural lands. not prejudice the power of the court (ICJ) to
− The court accepted the defense and applied the decide a case ex aequo et bono if the
CLEAN HANDS DOCTRINE. This is a general parties agree thereto.
principle of law that is well recognized in 5. Principle of Non Liquet
International Law. Which in civil law jurisdiction − When there is a lacuna in the law, EQUITY
is termed as imperi delicto. You have no cause will be applied and ICJ and other
of action against someone when you are also international courts can use that. If there is
mutually/equally guilty. no international law, EQUITABLE
PRINCIPLE will be applied

LAW-DETERMINING SOURCES How is Non Liquet differentiated from Ex Aequo Et

− do not create the norm or international law Bono?
because only states can create international • In Ex Aequo Et Bono, and this is the reason
law why it requires agreement between the
parties, its situation presupposes that in
JUDICIAL DECISIONS and TEACHINGS OF reality there are actually rules or
HIGHLY QUALIFIED PUBLICISTS international law principles applicable to
− An important principle that you need to the dispute, except that the parties have
remember when it comes to judicial decisions is agreed to apply equity instead. That’s why
the fact that at least in ICJ we don’t follow the it’s called equity overrides all other rules.
principle of stare decisis, pursuant to Art. 59
of the statute of the ICJ. Akehurst mentioned of some general principles of
− The decision of the court conferring jurisdictin to law that are usually found in domestic legal system,
the ICJ has no binding force except between especially in rules of statutory construction. They
the parties and in respect to that particular can help in determining which public international
case.
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
law prevails over the other if there is concurrence of to conduct a nuclear test in the high seas, a
different sources of international law. common area, would require an identification or
specific rule prohibiting it. At that time, there
Why are there guidelines? was no clear, conventional and customary
• Because, although it was the original international law prohibiting the test of nuclear
intention of the international law commission weapons in the high seas.
in drafting Art 38(1), they ended up − The court applied the unilateral declaration of
categorizing instead rather than providing state doctrine, by virtue of the principle
hierarchy among the sources of international Estoppel, once you make a declaration in public
law. In other words, you cannot argue that and manifesting willingness to be bound made
treaty prevails over CIL or vice versa. by an authority vested by the power to do so
• Jus Cogens - refers to the norms (Prime Minister), whether made in oral or in
• Erga Omens- refers to the obligation writing and addressed to the international
community or to a specific state, in clear and
Studying sources of International Law is really specific terms, consistent with Jus Cogens, the
studying the sources of obligations of states. We state CANNOT VALIDLY REVOKE at that
want to know whether that norm creates or binds a time the act to be performed. A state is
state. bound by its unilateral declaration.

What will bind sovereign states?

• Public International Law as they are PHILIPPINE PRACTICE ON SOURCES OF
recognized and expressed in Art. 38(1) of INTERNATIONAL LAW
the ICJ statute, generally termed ‘The Sec. 2 Art. 2 of Constitution
Sources of International Law’ “The Philippines renounces war as an
instrument of national policy, adopts the generally
accepted principles of international law as part of
UNILATERAL DECLARATION OF STATE the law of the land and adheres to the policy of
DOCTRINE peace, equality, justice, freedom, cooperation, and
− Some authors would say that the concept of amity with all nations.”
unilateral declaration of state doctrine may form
part of simply general principles of law because
the idea of it is actually Estoppel. Generally Accepted Principles of International
− Others would like to pay special attention to this Law
question, What will bind sovereign states? − They become part the law of the land by way of
INCORPORATION. We call it the Incorporation
Nuclear Test Cases Clause, which means that there is no need for
− This principle was first demonstrated in the an official and specific process of adopting the
Nuclear Test cases in 1974. Nuclear test cases GAPIL as part of the law of the land.
involved France, New Zealand, and Australia.
New Zeal and Australia filed a case against Kuroda v. Jalandoni,
France because France was testing Nuclear − PH created a military commission to try those
weapons, although in the high seas but very who were guilty of war crimes during the
close to Australia and New Zealand. The Prime Japanese occupation.
Minister of France issued a statement to the − The accused individuals questioned the
public declaring that in view of the complaints, creation of that military commission because
they commit not to conduct Nuclear tests the Philippines at that relevant time was not a
anymore in the high seas. However, contrary to party to the Hague Convention and Geneva
the public announcement, France still tested. Convention.
So Australia and New Zealand filed a case − SC said that that should not be a problem,
against France. The defense of France was the because even if the Philippines was not a party,
Lotus Case, where it was said that since the provisions invoked and made basis in the
International Law deals with sovereign states, it creation of EO 68 were CIL principles. Whether
is only when there is clear, conventional or party or not, the principles (where the creation
customary international law that we can restrict of the military commission was based on) are
the sovereignty of a state. And to tell a state not applicable to all states. These are the “principle
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 to prohibit war crimes” and “acts of aggression”.
These are considered as part of the Jus TREATIES
Cogens. Module 3

USA v. What is the difference between “Signatory”,

− the principle that a state cannot be sued without “Contracting Party” and “Party” to a Treaty?
its consent is also a generally accepted
principle of international law, binding upon the SIGNATORY
Philippines. − a state is called a signatory to the treaty the
− The basis of this state immunity from suit, is this moment the state signs s treaty through its
principle ‘par in parem non habet imperium’ or representative (either directly the head of
all states are equal. state or his representative)
• A state is immune from suit, but it is not − note: signature may also be treated by the
immune if there is no consent. But if there treaty itself as a way of expressing consent
is consent, like for instance becoming a to be bound
party to a multilateral treaty or framework − when the signature is considered a plain
authorizing suits against states, then that signature, meaning it does not express
should be considered as an exception to the consent to be bound, then the state is a
rule. signatory

Reyes v Bagatsing Two effects of a signature:

− confirms that the duty of the host state to take 1. Expression of consent to be bound by the
appropriate steps to protect the premises of the treaty
mission against any intrusion or damage and to − Art. 11, the means of expressing consent to
prevent any disturbance of the peace of the be bound by a treaty:
mission or impairment of its dignity is a CIL. 1. Signature
− It was therefore alright for the Philippines 2. Exchange of instruments constituting a
because it was consistent with its obligation to treaty
prohibit certain demonstrators from going near 3. Ratification
the embassy of the US when there was a 4. Acceptance
demonstration or rally held near the US 5. Approval or accession
embassy. 6. Any other means if so agreed

2. To adopt the text of a treaty

Wilson v Ermita • The text of the treaty will have to be
− a discussion on the normative value of the adopted first before a state signs it
human rights committee and recommendations • After adoption, it will undergo a process
or views. of authentication
− These will not be considered as decisions
binding on the Philippines but will just be merely Treaty-making process:
considered as recommendations. 1. Negotiation
− states discuss about the content of the
treaty
− minutes is written down for those who
are participating in the negotiation or the
negotiating states
2. Adoption of the Text of a Treaty &
Authentication
− once the minutes is finalized, states
adopt the text of the treaty which will
then be distributed for signature

14
PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 − states should check whether or not what stage, the state is properly called a contracting
is reflected in the minutes is indeed party.
what was agreed upon by them
− if the state doesn’t agree, it will not be When a state has already expressed its consent to
carried out as the text of the treaty be bound, is the treaty already binding on the
− each state representative will have its state?
own copy which it he will have to sign, − Not necessarily. It’s possible that the treaty will
and bring to his home state enter into force at a designated date as
− If DBL is the President and he enters contained in the text of the treaty.
into a treaty with Trump, Trudeau, and − For instance, “This treaty will enter into force 1
Boris, he will have his own copy of the year after the deposit of the instrument of
Treaty. The names of the states will be ratification of the 60th contracting party.” After
written at the back portion of the the treaty entered into force, the state should
document. In DBL’s copy, the first state then be called a party to the treaty.
listed is Philippines. In Trudeau’s copy,
the first state on the list will be Canada
and same with the others. The reason Situation:
for this is to manifest the principle of co- A state signed the treaty but is not yet considered a
equality. contracting party since it has not yet expressed its
− the copies will first be authenticated consent to be bound by the treaty but it becomes a
before they are passed around for party later on.
signature
For instance, the text of the treaty states that “upon
deposit of the 60th instrument of ratification, 1 year
What is the significance of the adoption of the text after, the treaty will enter into force.”
of the treaty? • The 60th instrument of ratification was already
− The text of the treaty will govern the various deposited by the Philippines. Singapore,
ways of expressing the consent to be bound, however, has not yet decided and has not yet
whether it is submitted for ratification, whether deposited its instrument of ratification.
accession (third states becoming parties to the Singapore here is not yet a contracting party
treaty) is allowed, whether it allows reservation. nor a party to the treaty, but the treaty has
already entered into force in so far as those
who had already expressed their consent to be
PARTY bound.
− If the state, after signing the treaty, already • It is not possible that the treaty will enter into
expressed its consent to be bound (if there is force only when all states have already
another form of expressing consent, i.e. there is submitted their instrument of ratification since in
ratification), and when that treaty has already this case, all states will be held hostage by one
entered into force, the state becomes a party that has not yet submitted its instrument of
− State becoming a party by virtue of accession is ratification.
also considered a party. • By the time Singapore submits its instrument of
ratification, it will automatically be called a party
and not a contracting party only since by the
CONTRACTING PARTY time it submitted its instrument of ratification,
− A contracting party is where the state has the treaty has already entered into force.
already signed and expressed its consent to be
bound but the treaty has not yet entered into
force
− There are instances where a state signed the Distinguish “Signature” from “Ratification”
treaty, and expressed its consent to be bound,
but the treaty has not yet entered into force RATIFICATION
because there is a period designated when it
will enter into force. During which time, in this In the Philippine setting, the President ratifies a
treaty.

15
PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
Romulo Case agreement because under the Constitution,
In the case of Romulo, it was pronounced that the if it is treated as an international agreement,
power to ratify a treaty is vested with the President, it needs to be submitted to the Senate for
it is an executive prerogative. concurrence
− remember: it is not correct to say that just
What is the role of the Senate? because it is not called a treaty, it does not
Is ratification different from concurrence? need concurrence
Is there another way of ratification other than the
President? Process of Classifying or Qualifying the
Is there an instance where there is no such thing as Agreement
ratification but would still require concurrence of the − There is a process of classifying or qualifying
Senate? the agreement whether it is a treaty or an
− If it is the President himself who signs the international agreement on one hand or a mere
treaty, there is no need for any ratification executive agreement. This is done by the Sec.
because the process of ratification presupposes of the DFA. He decides whether what the
that someone else signed the treaty President signed or ratified was a treaty or
− The President needs to ratify it because there is international agreement or a mere executive
only 1 repository of diplomatic power when it agreement.
comes to treaty making, at least in Philippine − If the Sec. of DFA characterizes the document
law context, and that is the President as either a treaty or an international agreement,
he will submit the same to the Senate for its
Why is there a need for ratification? concurrence
− There is a process of ratification because the
President himself and alone exercises treaty-
making power. So, if someone else signs, there EXECUTIVE ORDER 459
is a need for ratification because it is not the Under Philippine Law, there are types of
President who signed. agreements, international in character, that would
− In a situation where the President himself signs not require the concurrence of the Senate
the treaty, there is no need for ratification. But it (only treaties and international agreements require
would still require the concurrence of 2/3 of the the concurrence of the Senate)
Senate.
In reality, whether it is an international agreement,
Process of Concurrence by the Senate: an executive agreement, or a treaty, under
• Example 1: Teddy Boy Locsin was sent to the International Law, it doesn’t matter. It will be
UN armed with full powers or the authority to characterized by International Law.
sign a treaty.
1. The President ratifies the treaty. But on the part of the Sec. of DFA, he will be
2. The treaty is transmitted to the Senate for guided by our own understanding that they are
concurrence distinct because:
• Example 2: If Locsin signed an Agreement 1. Executive Agreement
between 10 states, including the Philippines, − usually temporary in character
ratified by the President, and was transmitted to − usually entered into to implement already
the Sec. of DFA, what is required of the DFA in existing international framework agreement
this situation? or treaty
− Art 2, paragraph 1(a), for the purposes of − does not establish a new political or
the present convention, “treaty” means an international relationship because there is
international agreement concluded between already an existing treaty
States in written form and governed by − no need for the concurrence of the Senate
international law, whether embodied in a
single document or in two or more related 2. Treaty or International Agreement
instruments and whatever its particular − agreement is more or less permanent
designation. − provides for political relationships or a
− if it’s named as “agreement”, one cannot framework of conduct between states
conclude that it also refers to executive − Senate’s concurrence is required
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 SIGNATURE
Two Connotations of Ratification in the Law of
Treaties Two effects of a signature:
1. Domestic concept 1. Expression of consent to be bound by the
− when a treaty is entered into by a mere treaty
representative of the head of state or − Art. 11, one of the means of expressing
whoever has the power in the country to consent to be bound by a treaty is through a
enter into treaties, there is a need for Signature
ratification because: 2. To adopt the text of a treaty
a. if there is no ratification process, it
would mean that the head of state
shared his powers Signature ad referendum (Art. 12, paragraph 2
b. pragmatism – in the past, because (b))
of the lack of technology, reality was − The signature ad referendum of a treaty by a
the king sends a representative to representative, if confirmed by his State,
the meeting to sign for and in behalf constitutes a full signature of the treaty
of the country. The representative − A signature that will not have any effect until
comes home after weeks or a approved by the designated or identified
month. The king actually has no idea agency of the government of the signing state
what the representative has signed − The authority may provide that the signature of
and will be able to read the text only the representative will not be considered as
when the representative comes signature until and unless it is affirmed by his
home. If the King does not affirm own state
what is written on the document,
then he will not ratify it.
c. it should serve as a check, to give Distinguish “Treaty Law” from “Law of Treaties”
time to the head of state to decide TREATY LAW
whether or not he will consider the − only deals with the contents of a specific treaty
treaty to be binding upon his or convention
constituents − Example: “I’m taking up a course on World
Trade Organization (WTO) law and policy” –
2. Type of Ratification that may also be only studying one type of treaty, the WTO
considered as an expression of consent to be
bound. LAW OF TREATIES
− deals with the rules governing all treaties
Ratification includes: without looking into the substance of a specific
1. Exchange of instruments of ratification treaty
2. Deposit of the instrument of ratification with the
designated depositary
• There are two modes because in bilateral
treaties or in treaties where there are only very
few parties, normally, the treaty will enter into
force, for instance, 1 year after the exchange of
the instruments of ratification. When the head of
state ratifies a treaty, there is a document
showing that it has been ratified by the
President (instrument of ratification). The
representative will bring the instrument of
ratification to the meeting and on that day, they
will exchange instruments.
• If there are 50 states, exchange of instruments
of ratification will be very confusing, then they
can just deposit the instrument in the
depositary, usually the UN.

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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
October 10, 2020 Part II Why talk about negotiation? It is important class
Concept of a treaty (slide 5) because later on we will talk about ways of
This definition is only for the purpose on interpreting a treaty. In fact, let me just go straight
determining whether we apply the VCLT. Otherwise to that.
or if it does not fall under this definition, it will not be
covered by the VCLT but it is still binding, actually Interpretation of treaties- Article 31 and 32 of the
even if it is not in writing. VCLT.
Article 32 -Supplementary means of
Qatar and Bahrain case found its way to Article 3 of interpretation
the VCLT. Recourse may be had to supplementary
Article 3- International agreements not means of interpretation, including the
within the scope of the present Convention. preparatory work of the treaty …
So, it is either because, I think you have encountered the word travaux
1. It’s not entered into between states, or perpetoire. Preparatory works na siya. So the
2. It’s not in written form, or stages of negotiation and drafting is where you can
3. It is not to be governed by international law see the preparatory works. Helpful ni siya class if
4. And many other concerns. the provision in the treaty gives ambiguous or
What are the consequences? obscure meaning. So we can go back to the
• It shall not affect the legal force of such preparatory work. Recorded na in most cases. Or, if
agreement. See? that provision, applying Article 31 methods, still the
• The application to them of any of the rules meaning of the provision cannot be ascertained
set forth in the present Convention (which then we can make use of these supplementary
partake of a nature of a CIL) to which they means of interpreting a treaty in interpreting the
would be subject under international law provision.
independently of the Convention. Pwede ra i-ask sa bar, what are the supplementary
• The application of the Convention to the means of treaty interpretation? Pagkasayon ra.
relations of States as between themselves So this is the important of negotiation and drafting
under international agreements to which of the terms. (1:21:55)
other subjects of international law are also Adoption and Authentication of the text of
parties. the treaty by the negotiating states
Why is this important? It is the text of the treaty that
A quick overview of the treaty-making process will govern the next stages. Unsa man ang
(slide 7). methods of expressing consent to be bound?
A treaty may be proposed in various ways. Under Article 11, there are many baya. And that is
It could be done by a state offering to determined in the text.
conclude a treaty to another state; or it is
proposed at an international conference; or Signature, or expression of consent to be
probably an organization, for instance, bound by the treaty by the individual states
would propose that a convention be drafted (if signature is not the mode of expression
and then submitted to states for approval. of consent provided for in the treaty.
In fact in the 4 Geneva Conventions, one of the
most important instruments we have ever Article 11 - Means of expressing consent to
concluded, no state has initiated its conclusion. It be bound by a treaty
was also not by a resolution initiated by a state in The consent of a State to be bound by a
an international conference. But rather, if you know treaty may be expressed by signature,
your history, Geneva Conventions were drafter exchange of instruments constituting a
precisely because of the move of the International treaty, ratification, acceptance, approval or
Red Cross. It was formed because of an accession, or by any other means if so
international organization. In fact, the interpretation agreed.
of the International Red Cross would play a very
important role in determining the meanings and Ratification of the treaty by the individual
interpretations of the Geneva Convention kay sila states.
man ang nag author. Please take note of that. Only if provided for in the treaty that there will still
be ratification. Sometimes simple ra, they will say
After the Proposal there will be negotiation.
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
signature is already the expression of consent to be a state. As a rule, in article 7, he must possess full
bound and no need for ratification. powers (pleins pouvoirs).
Ratification in this stage is meant to be in the Article 2 - Use of terms
domestic level. (c) “full powers” means a document
emanating from the competent authority of a
Exchange of Instruments of Ratification and State designating a person or persons to
Entry into force of the treaty represent the State for negotiating, adopting
This is ratification in the international level. Material or authenticating the text of a treaty, for
sad ni siya in determining when the treaty entered expressing the consent of the State to be
into force, depending on how it is stated in the bound by a treaty, or for accomplishing any
treaty. It can be right away after the exchange of other act with respect to a treaty.
instruments of ratification; or after deposit of the But there are exceptions. Article 7- 1 (b), article 7-
instrument of ratification with a designated 2. What that means, is that they don’t need to have
depositary as the case may be; and pwede sad 1 full powers in order to represent their states. I’m
year after ang entry into force. talking about article 7- 1 (b), we call it “apparent
Use “entry into force” instead of “take effect”, authority”.
because this is the language of international law. Wala siya full powers but under the circumstances
and as a matter of customary practice, that person
Accession to the treaty by states wishing to had really been authorized by that state.
join after its entry into force, if any
If the text of the treaty allows accession as the next Article 7 - Full powers
step. Accession to the treaty by states who did not 1. A person is considered as representing a
participate in the negotiation. Mga dawlims in other State for the purpose of adopting or
words kay wa mu apil ug draft kay mu accede authenticating the text of a treaty or for the
nalang. There are treaties which do not allow purpose of expressing the consent of the
accession. Mostly these are multi-lateral treaties on State to be bound by a treaty if:
friendship, commerce, mga in-ana. (b) It appears from the practice of the States
concerned or from other circumstances that
Capacity to enter into treaties their intention was to consider that person as
Once a state becomes so, inherent na gyud na ang representing the State for such purposes and to
ability to enter into treaties although entering into dispense with full powers.
treaties cannot be demanded because it is based So if you send someone who, as a matter of
on consent. But at least, when we are dealing with practice of that state, had been authorized in the
a state, you don’t have to inqure further whether or past, then it can be assumed that as a matter of
not it has legal international personality. practice, that person is really authorized. We call
That’s why later on when we states and that “apparent authority”.
governments, I’ll be asking the question why is it Article 7-2, however, refers to what we call “implied
necessary to know whether a community or a group authority”. Why implied? Because of their positions.
of people in a given territory having a government By reason of their positions, they need not bring
would qualify as a state or not. One importance of authority. But take note of the scope and limitations
determining that is to know whether that particular of the implied authority.
group of people in a given territory having a
government has an international legal personality Article 7 - Full powers
which would entitle it the right to enter into treaties, 2. In virtue of their functions and without
among others. Meaning we need to possess the having to produce full powers, the following
right and duties of states under the Montevideo are considered as representing their State:
Convention, this would include, for example, the (a) Heads of State, Heads of Government
right to self-defense, self-preservation, kani siya and Ministers for Foreign Affairs, for the
class- the right to enter into treaties- is legation. purpose of performing all acts relating to the
Right of legation – right to engage in diplomatic conclusion of a treaty;
relations. (b) heads of diplomatic missions, for the
Since states are legal persons, juridical entities in purpose of adopting the text of a treaty
other words, they are to be represented by between the accrediting State and the State
individuals. So we need to know who can represent to which they are accredited;

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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 (c) representatives accredited by States to 1. Unanimity rule- which is a matter of practice
an international conference or to an in the past, before the VCLT. Not pragmatic
international organization or one of its and practical if followed in an international
organs, for the purpose of adopting the text conference.
of a treaty in that conference, organization 2. Vote of 2/3 of the States present and voting,
or organ. unless by the same majority they shall
In the first group of officials, who are deemed to decide to apply a different rule – in
possess, or rather impliedly possess powers, they international conference.
have implied powers on all acts on all stages on the
conclusion of treaty. This is in paragraph A. who Q: What is the legal significance of “Adoption of the
are these? There are 3 - Heads of State, Heads of text of the treaty”?
Government and Ministers for Foreign Affairs. By After adoption of the text, the treaty will be
reason of their position, they are understood to prepared in final form, at which point it is usually
possess diplomatic powers. Gi enumerate ni class “Authenticated” (see Art. 10). Which will then
kay depende man na siya sa system of govern the next stages.
government. If you have a presidential system of
government, chances are, your head of state and Q: Is the consenting State now bound by the terms
head of government is one and the same person- or substantive provisions of the treaty?
the president. In a parliamentary system, usually A: if ni sign, and the signature is not and expression
the head of state would be the monarch or could be of consent to be bound then obviously the signatory
someone else, and the head of government would is not yet bound by the substantive provisions of
be usually the prime minister. Now ministers of the treaty. But the more important question is, after
foreign affairs, diplomatic ilang function. he expressed consent to be bound, is the state
In what stages? In all stages. already bound by the substantive provisions of the
But the 2nd and 3rd groups of officers, they are only treaty? Not necessarily. The entry into force of the
limited to adopting the text of the treaty. If they are treaty which is the crucial point may come later, as
to be treated as representatives having implied determined by the text of the treaty.
powers. In other words, so as not to be limited in
the acts that may be performed by the Legal obligations before treaties enter into force
representative, if you are the head of state, do not When the treaty enters into force, the substantive
rely on the fact that that person has implied provisions will now bind all parties. But what about
authority. The head of state could give them full in the meantime that the treaty has not yet entered
powers para all stages, they are authorized. That’s into force? Kinsa man ang naa? That’s the
really the practice. relevance of knowing who are the signatory states,
Who are these? Heads of diplomatic missions. contracting parties, and parties.
Heads lang ha. Not the entire diplomatic mission.
And representatives accredited by States to an In article 18 there are two situations.
international conference. Naa may mag Article 18 - Obligation not to defeat the
conferences of states where you can authorize object and purpose of a treaty prior to its entry into
someone other than the ambassador to represent force
the state. A State is obliged to refrain from acts which
would defeat the object and purpose of a
Of course if the representative is not authorized, treaty when:
under article 8, his actions are without any legal (a) It has signed the treaty (signatory) or
effects until and unless confirmed by the state. has exchanged instruments constituting the
Article 8 - Subsequent confirmation of an treaty subject to ratification, acceptance or
act performed without authorization approval, until it shall have made its
An act relating to the conclusion of a treaty intention clear not to become a party to the
performed by a person who cannot be treaty (mura syag signature ad referendum);
considered under article 7 as authorized to or
represent a State for that purpose is without (b) It has expressed its consent to be bound
legal effect unless afterwards confirmed by by the treaty, pending the entry into force of
that State. the treaty and provided that such entry into
force is not unduly delayed. (Contracting
2 types of adopting the text of the treaty. (article 9) party)
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 obligation of the treaty yet because the obligation
Article 18 is not a progressive development of was to be nuclear-free or to disarm. State A could
international law. In fact it is a codification of CIL. still do so once the entry into force of the treaty
The one reason why international law continues to comes in. This question is quite tricky. Take note
be legitimate in the eyes of most states, is precisely the question is if State A has a violation of an IL,
because of good faith of the states in dealing with not if he violated the treaty.
it. Bad faith tantamount to consequences. So did he defeat the object and purpose of the
treaty? DBL seem to imply State A did not. (dian:
so how do we apply article 18 then? Maybe we
May obligation ba si signatory and the contracting could show that entry into force will not determine
party before the treaty enters into force? alone if a signatory or a contracting party has
Yes they have obligations under International law already incur an obligation under the IL, not under
even if the substantive provisions are not yet the substantive provisions of the treaty.)
binding to them- and that is, the negative obligation Note: it is not the entry into force that will determine
to refrain from acts which would defeat the object if one has an obligation in IL because of Article 18.
and purpose of the treaty.
Withdrawal
Article 18 is quite controversial because vaguely o In the case of signatory- easy. Make your
couched ang provision. What is the meaning of intention clear that you do not intent to be
defeat? Object and purpose of the treaty? Some bound anymore by the treaty. Just like what
authors would say use the plain meaning. Such that the US did in the Rome Statute. They
the idea of defeating the object and purpose of the signed but the year after, they issued a
treaty means that, when the treaty already enters statement that they are no longer interested
into force because of the act of that state who is in becoming a party. Is that enough? Yes.
obliged to refrain from defeating the object and Signatory paman siya. Di paman sya party.
purpose, he could no longer perform the obligation o If contracting party or party- difficult nag
provided for in the treaty. To repeat, an act which exit. Check the content of the treaty on how
would render the state incapable of performing the to exit. Kato ang e follow na provided didto.
obligations in the treaty when the treaty finally
enters into force. When the treaty enters into force?
Example- cession of territory. State A undertook to Look at the text of the treaty what method as
cede province X to State B, but the cession will provided, otherwise, under article 24 (2), as soon
take effect one year later. 6 months later, State A as all negotiating states have expressed their
undertook to cede the same province X to State C, consent to be bound.
and their treaty enters into force immediately. Now, Kung daghan, usually mu provide lang sila ug
when the treaty of State A and B enters into force, threshold.
can state A still cede the province X to B? Not
anymore, he already lost it to C. this is an example
of the act which will defeat the object and purpose
of the treaty.
ARTICLE: Treaty Making Power by Anne Peters
Problem: Treaty and State Obligations Questions to take note
States A, B, C, D and E are neighbouring states in Q: Whether a state, in a federal state or country, can
the pacific. Wanting to maintain regional peace,
they negotiated and signed a Nuclear Disarmament enter or conclude a treaty? (ex: can the City of New
Treaty whereby nuclear states will disarm one (1) York of the U.S enter a treaty with the Philippines?)
year after the entry into force of the treaty and Quick Answer: It depends on the constitution of the
those which are not nuclear states will have to state (this case the U.S). There is no international
remain nuclear-free. Immediately after signing the law principle or rule stating whether a component
treaty, State A began importing nuclear materials state of a federal state can contract or conclude a
and constructed nuclear facilities in its territory. Has
treaty. The international law does not provide an
State A breached international law?
answer. We need to look at the constitution of the
Answer: Article 18 concept but the answer is that state concerned.
State A is not really precluded from performing the
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
In the article, there are examples of federal states Q7: Whether the European Union have treaty
where there is limited capacity of component states. making power
There are also federal states where the component Quick Answer: Limited
state does not have treaty making power at all.
Follow up Q7: What about the states composing the
Q2: Whether a confederation has a treaty making European union?
power Quick Answer: Yes, they can. But you should
Quick Answer: No, they do not since the consider if it refers the same subject matter as that
confederation does not dissolve the member states. entered with the EU itself. The EU framework
In a confederation, unlike a federal state, the provides solutions of instances where component
members of a confederation remained to be states in the EU would enter into treaties with
independent states. They just confederate for countries outside the EU and covered by treaties
certain administrative or cooperative purposes. They already entered by the EU itself as a body.
do not have international legal personality
Q8: whether insurgents or rebel groups can enter
Q3: Whether a non-governmental organization can into a treaty
have the capacity to conclude treaty (ex: Quick Answer: Limited. Insurgents and rebel
Greenpeace, Amnesty international) groups that have occupied a definite and significant
Quick Answer: Generally, No. NGO do not have the portion of the territory has a threshold under the
capacity to enter treaties except for the International Geneva Convention of 1949 when they are allowed
Committee of the Red Cross (ICRC) maybe but in a limited degree for certain limited purposes
recognize to have limited international legal (like a treaty for the use of a territory on a non-neutral
personality state. Neutral states are not allowed to let the rebels
to use their territories)
Q4: Whether international organizations can
conclude treaties
Quick Answer: Yes, they can. But not under the
framework of the VCLT. It should be in another
convention.

Q5: Whether national liberation movements power

to conclude treaties
Quick Answer: They have limited powers and only
for the purposes of entering treaties that are related
to the armed conflict.

Q6: Whether dependent territories (vassal States,

protectorates, associated and colonies) have
powers to conclude treaties
Quick Answer: That would depend on the treaty
they had entered into, if they have any, with their
dominant or principal state. Generally, it depends.
But as a matter of practice, vassal states do not
have. Protectorate states have limited. Colonies are
part of the colonizing power and cannot be
considered as a country since they are under a
colonizing power.

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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 Reservations The negative effect there is that since that reserving
state would not become a party and when that state
PROBLEM: States A, B, C, D and E entered into a reaches the content of the convention, as a matter
treaty and it has 10 articles. A, B, C, D accepted all of legal basis, then you cannot accuse the reserving
10 without reservations but State E want to make a state if it breaches or violates the substantive
reservation in regard to Art. 10. It doesn’t want to be content of the treaty. It then defeats the object and
bound by Art 10. purpose of the convention

A.) Can state E can become a party to the The ICJ then modified the unanimity rule. It shouldn’t
treaty? require that all would accept. It is impossible that the
reserving state can be a party to other states
DBL: For question A, there are answers would first depending if they object or not the reservation. The
that first qualify whether the treaty allows that object state will then determine their reason for
reservation. That is a good observation. If the treaty objecting the reservation.
does not allow reservation, then that reservation
does not effect. Then State E cannot become a party Can a reserving state be considered a party to
if it makes a reservation and it does not allow under the convention while still making the reservation
the treaty when such was objected to one or more parties
to the convention but not by others?
Two possible Situations:
1) Acceptance by all parties to the treaty would The reserving state may be regarded as a party to
be required the convention if the reservation was compatible
2) Some may accept and some may reject the with the object and purpose of the convention.
reservation
Each state objecting to the reservation will or will not,
Under Article 20 (2) of the VCLT (use the word on the basis of the individual appraisal with the limits
“under” because we are to assume that the VCLT of the criterion of the object and purpose of the
applies to the parties here), it says that there are convention, consider the reserving state to be a
certain treaties that it is to be assumed that the party to the convention. If the objector deems the
agreement of all the parties is an essential condition reservation as incompatible with the object and
when it comes to reservation. A reservation requires purpose, it can consider the reserving state as not a
acceptance by all the parties in order for the party to the convention.
reservation to be effective. Otherwise, there maybe
situations where reservations are partially accepted The objecting state then cannot claim the reserving
because some would accept and some would reject. state violated a treaty. In the same way, that the
reserving state cannot claim the objecting state
In question A: there is a need to distinguished violated the treaty. They are not parties insofar as
between a treaty that had been entered before the the two states are concerned
1951 Genocide Convention Reservation Case
B.) What would then be the relationship
Before the Genocide convention, the rule had been between States A, B, C, D and State E?
is that, in order for the reservation to be valid, it must
be accepted by all. This is called the unanimity rule. If the reservation is accepted by all:
The international community that the rule would not Since the reservation was accepted unanimously,
work because if the state wants to make a State E becomes a party to the treaty but State E
reservation and it is objected by other states, then shall only be a party to the treaty insofar as Articles
automatic rule would be that the state will not 1-9 are concerned. State E then is not a party to the
become a party to that convention. treaty as so far Art. 10 is concerned.
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
 Take Note: Articles 20 and 21 of the VCLT on the
DBL: Reservation has a binding effect. Declaration effects of reservations and objections to
or understanding is more on internal expression of a reservations.
state as to its own understanding and the way they
treat a provision of a treaty (not intended to be
binding) Registration with the Secretariat

Reservation: Article 10, therefore, will not apply to “Secret Treaty”

State E. This is binding, meaning State E is seeking Is a treaty that has not been register with the
that rule is exempt from the applicability of Art 10. secretariat of the UN and published by the
secretariat of the UN.
Declaration or understanding: When this provision of
this treaty is to be implemented by the state making What is the objective of registration?
the declaration or understanding, it will do so in a For the convenience of the parties or states
particular manner. negotiating with other states to conclude a treaty

For instance, if state E (a federal state) will make a Once registered and published, it is accessible by
declaration as so far as Art 10 is concerned, where negotiating states.
Art 10 provides that in 5 years’ time, state E will have
to pass a law to removed death penalty. State E then What would be the effect if a treaty is not
will say, by law, it is our understanding that this registered?
refers to a law passed by our federal government The treaty is still valid binding to the parties
and not by individual states. State E will then say concerned, only that it cannot be invoked the
their understanding in how to implement the death authority in any of the organs of the UN in order to
penalty. enforced the provision of the treaty that had not been
registered.
When is reservation not allowed?
Article 19, VCLT – A state may, when signing, What happens when a treaty has already entered
ratifying, accepting, approving or acceding to a into force?
treaty, formulate a reservation unless: The CIL principle of pacta sun servanda which is in
1. The reservation is prohibited by the treaty Art 2 of the UN charter that mandates observance of
treaty in good faith;
2. The treaty provides that only specified
reservations, which do not include the Art 26 of the VCLT in particular provides that every
reservation in question, may be made treaty enforced is binding upon the parties and must
Note: Also known as partial reservation. be performed by them in good faith.
Reservations are not allowed insofar as
those provisions where reservations are not Pacta sunt servanda is the general rule the moment
permissible. the treaty enters into force. For a state not to be
Ex: Arts 1-5 allowed reservations. Art 6-10 no bound, as exception to pacta sunt servanda, you
reservations is allowed. Then state E is may invoke rebus sic stantibus.
making a reservation to Art. 10. This is the
type of reservation that is not allowed. The relationship between pacta sunt servanda and
jus cogens is regardless of level of consent given by
3. The reservation is incompatible with the parties, if the provision of the treaty contravenes jus
object and purpose of the treaty. cogens, the provision in treaty is invalid despite
pacta sunt servanda or voluntary agreement.

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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
Note: Rebus sic stantibus is an exception to pacta theory of monism. Monism, meaning, there is one
sunt servanda. legal system in the world and that is international
law. Such that domestic laws are not separate legal
DBL: Jus cogens is also a limitation because despite systems but they are part of the international
agreements of the parties in the treaty, if the systems. If domestic laws deviate from international
agreement is inconsistent with jus cogens norms law, these domestic laws should not be valid.
(according to article 53 of the VCLT, Jus cogens
means compelling law), where derogation is not Monism is a byproduct of natural law theory. It is
permitted. natural or exist anywhere. Universality of the law is
the byproduct of the natural law theory. The
Derogation in international law means that the state universality of the law also results in the concept of
would not observe the norm and wants to be exempt a singular legal system which is monism.
from observing the norm. If it is non-derogable, there
is no instance or situation or condition where that However, it is erroneous to think that if it is domestic
norm may not be observed by the state. tribunal, that domestic tribunal will let right a right
away a domestic law prevails over international law.
The moment when a treaty enters into a force, is It is possible for that state concerned to be observing
this principle in article 27 of ther VCLT? and accepting monism. There are states that
Article 27. INTERNAL LAW AND OBSERVANCE international law and domestic law has an equal
OF TREATIES - A party may not invoke the footing
provisions of its internal (domestic) law as
justification for its failure to perform a treaty Dualism:
Which by the way, is not expected in an international
In the event of inconsistency or conflict between tribunal, but is expected in a domestic tribunal.
a domestic/municipal law and an international
law, which prevails? If domestic tribunal is observing dualism, it would
Quick answer: treat differently the international law and the
It depends on the theory accepted and adopted by domestic law. Domestic tribunal maybe upheld
the tribunal that will answer the question whether expectedly domestic law over international law. But
which one prevails between domestic law or it does not mean that domestic court, in any singular
international law instance, will not apply international law over
domestic law. It can happen since it is observing
Tribunal could be international tribunal or domestic dualism.
tribunal
Dualism theory is a byproduct is a positivism theory.
In reviewer: it depends on the forum. For Law is law once it is enacted. If you have statute in
international law (like ICJ), we expect that a domestic setting, then that is a law once it is
international law prevails. But in domestic forum (like enacted. It is still a law even in relation with
RTC0. Then domestic law prevails. (3 points international law.
answer)
Conclusion: if it is monism, expect that international
DBL: it depends on the system that is being adopted law will prevail even in the case of a domestic court.
and accepted by the tribunal, whether international While in dualism, we expect domestic court to
tribunal or domestic tribunal. uphold domestic law over international law.

Monism: DBL: it is not accurate to just go straight in

In international tribunal, it expects that the determining if it is decided by an international
international tribunal adheres to the principle or
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
tribunal or domestic tribunal. It is better to involve invoked that they cannot be bound since the PH
monism and dualism representative did not have a competence to
conclude a treaty since the constitution provides that
GOING BACK TO ARTICLE 27 of the VCLT (OMG the senate should have approved Mr. X’s
GI KAPOY NAKO) representation of the PH and which he did not get.
If you see article 27, it is a clear manifestation that
under international law, domestic law cannot be Generally: It may not be invoked. A State may not
used to evade compliance. Under international law, invoke the fact that its consent to be bound by a
international law prevails domestic law. You cannot treaty has been expressed in violation of a provision
invoke domestic law to evade compliance in treaty of its internal law regarding competence to conclude
obligations. treaties. The PH cannot invoke invalidity.

However, there is a limited exception to Art. 27 which Exception: if that violation is manifest and concerned
is Art 46 of the VCLT. a rule of its internal law of fundamental importance,
then there should be no debate. Because:
Article 46. PROVISIONS OF INTERNAL LAW 1) It may be an internal law if fundamental
REGARDING COMPETENCE TO CONCLUDE importance because it is in the constitution.
TREATIES It cannot be argued otherwise.

1. A State may not invoke the fact that its So the big question is: did it manifest?
consent to be bound by a treaty has been
expressed in violation of a provision of its Article 46. PROVISIONS OF INTERNAL LAW
internal law regarding competence to REGARDING COMPETENCE TO CONCLUDE
conclude treaties as invalidating its consent TREATIES
unless that violation was manifest and
concerned a rule of its internal law of 2. A violation is manifest if it would be
fundamental importance. objectively evident in any state conducting
itself in accordance with the normal practice
EXAMPLE: in good faith
A treaty in the PH to be binding would have to be
concurred by the senate. In that situation, is it a normal practice? Not sure (so
Question: is that an internal law? Yes. wla ko kasabt ngano nag example2 pa siya)
Is it normal practice if the representation needs
Assuming that we have a provision in the authorization from the senate since diplomatic
constitution, that any representative authorized by function is primarily executive? It can be argued that
the president to represent the PH, shall also have it did not manifest since that is not a normal practice.
the authority of the Senate. In other words, if the
president would authorize a representative, it should Nigeria v. Cameron
also have an approval from the senate Cameron entered into a treaty of Nigeria and
Cameron did not comply with its obligation. When
If we have a representative, Mr. X, who has been asked why, it said the treaty is not binding because
sent by the president to sign a treaty as a form of when it was signed by the head of state, that treaty
expressing consent to be bound in the UN, but did was not approved by the military general. Because
not seek approval from the senate to represent the in their constitution, all treaties entered into even by
country which is in violation in the provision of the the head of state should be approved by the military
constitution. When for instance state B would general. This is a domestic law.
demand compliance from the PH of a certain
substantive provision of the treaty. The PH then

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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
But according to Article 46 and this is also CIL,a The idea of fragmentation of international law is
State may not invoke the fact that its consent to be brought about by the fact that international courts
bound by a treaty has been expressed in violation of and tribunals do not have institutional relationship.
a provision of its internal law regarding competence Unlike in the domestic legal system where we have
to conclude treaties as invalidating its consent. trial court decisions reviewable by appellate courts
Under international law perspective, you are which is subsequently reviewable by the Supreme
bounded regardless. This was the ruling of the ICJ. Court. Thus there is a clear institutional relation.
This is different from International law because the
The exception is that if that violation was manifest ICJ has a complete case law development from
and concerned a rule of its internal law of other institution such as the WTO, WTO decisions,
fundamental importance. If you say a rule concerned ICJ decisions, ICC decisions, Tribunal of the Laws
of fundamental importance, that has referred to its of the Sea decision, Arbitral awards, old cases
constitution. Because the constitution is of decided by the PCIJ. These are all different
fundamental importance. In this case, ICJ said yes decisions and they do not have institutional
since it’s in their constitution and a rule of relationships which is possible in International Law
fundamental importance but if a treaty entered into and resulting to fragmented.
by the head of state will still have to be subjected to
approval of a military leader at the home state, is not There are International Laws created by the ICJ,
manifest because a violation is manifest if it would WTO, Arbitral Tribunals and many others. All of
be objectively evident in any state conducting itself them has no relationships thus, it is really possible
in accordance with the normal practice in good faith. that International law is fragmented.
The practice of having a treaty signed by the head of
Important characteristic of International Law is that
state having to be approved by the military leader is it is fragment.
not normal practice of states.
One way to avoid fragmentation of international
Law is the provision in the VCLT that allows the
Interpretation of Treaties application of relevant international law in another
relationship. This provision refers to Article 31 of
Article 31, VCLT – General Rule of Interpretation A the VCLT paragraph 3 subparagraph c which states
treaty shall be interpreted in good faith in that:
accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light Article 31
of its object and purpose. General rule of interpretation
1. Text (ordinary meaning + context + object 3. There shall be taken into account, together with
and purpose of the treaty) the context:
2. Context c. any relevant rules of international law
3. Object and purpose applicable in the relations between the parties.

Principle of systemic method of treaty Illustration:

interpretation States A and B are parties in the UN Charter,
Means international law shall not be treated as some member of UN. At the same time they have treaties
sort of fragmented law. entered into and registered with UN called Treaty of
Friendship Commerce and Navigation (FCN).
Fragmented Law States A and B are also members to WTO,
Refers to a law that probably would be applicable regulating imports and exports between members.
only to a certain situation but cannot be applied to If it happens that there is a question in their
the parties in different situations. relationship between states A and B in FCN treaty,
example there is a dispute and it cannot be
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PUBLIC INTERNATIONAL LAW – ATTY. DBL (2020)
resolved by the text of the treaty between them obscure meaning or interpretation in Art 31 leads to
registered with the UN, applying Art 31 paragraph a result which is manifestly absurd or
3(c). For the ICJ, as they have a UN registered unreasonable. As a result of this we go to
treaty, since there is no provision in the FCN treaty preparatory works and circumstances of its
to resolve the conflict, ICJ can apply some conclusion or contemporaneity method of
principles in the WTO regime applicable to States A interpretation.
and B, because they are also parties thereto, so as
to resolve the dispute in the FCN treaty. This is Distinguish between terminations, withdrawal,
another systemic treaty interpretation. denunciations and invalidate of a treaty.

Teleological treaty interpretation – another term for Termination is the generic term when one performs
interpretation of a treaty through object and and act that will cease the application or the binding
purpose of a treaty. Telos = object and purpose of efficacy to the state. This can be done either by
a treaty denouncing or withdrawing from the treaty. This
presupposes that the treaty is valid.
Whaling Convention Case
This case involves Japan because it is part of their Denunciation – is same with withdrawal, that is why
sport to kill a whale. Under the whaling convention, the terminology in the VCLT denunciation and
it is prohibited to kill certain types of whale with the withdrawal are used simultaneously. Denunciation
exemption that killing is done for scientific purpose. is used in bilateral agreements/treaties. In a
Problem is the convention did not state how many bilateral treaty, there are only two parties thus,
whales could be killed for scientific purpose. What when one terminates the treaty there is no longer a
Japan did is capture whales for their sport and treaty or the treaty dies. This is known as
contend that these were captured for scientific denounced.
purposes. Thus, if the convention allows capture for However in multilateral treaty, one claims to
scientific purposes then why limit if they can still terminate, this is better termed as withdrawal
contend that the killing is for scientific purposes. On because the treaty continues to exist in so far as
other hand, we do not know what they will do with the other parties are concerned. Thus, withdrawal
the whales to justify the scientific purpose. is used.
The court said, that if we interpret the exception In case of Material Breach and Fundamental
clause of “for scientific purposes” and there is a Change of Circumstance we use terminate.
need to identify the number for limitation, there is a
need to examine the purpose and object of the Invalidate – this means that the treaty is not valid.
treaty. The object and purpose of the treaty is really This term is used if the contract is defective.
to protect the dying specie of these whales. Thus, if
one contends that this is for scientific purpose but Note: You cannot use terminate by reason of fraud
the whales killed are of significant number, this or error because the proper term is invalidate.
should still be prohibited. This situation arose
Article 48 or Error of the VCLT states that:
because the Whailing Convention missed the
limitation of number on the whales killed for A State may invoke an error in a treaty as
scientific purposes, it required interpretation. Thus, invalidating its consent to be bound by the treaty if
the ICJ used the in the interpretation the object and the error relates to a fact or situation which was
purpose of the contract. This is called the assumed by that State to exist at the time when the
Teleological Treaty interpretation. treaty was concluded and formed an essential
basis of its consent to be bound by the treaty.
Take note of when can we use these
Supplementary mean of interpretation as stated in In the case of Temple of Preah Vihear what is
Art 32 of VCLT such there are ambiguous or the element of error? What was the basis of
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boundary drawn in the map? Explain briefly themselves to the jurisdiction of the ICJ on
what happened. the basis of their agreement. There was a
Cambodia, a previous colony of France, was hijacking incident in this case.
anchored on a map prepared by Thailand and with The argument was the agreement between
the help of France, a committee was tasked to draw India and Pakistan could no longer be the
a map. The temple was to be located in Cambodia. basis for the jurisdiction of the ICJ because
Thailand objected to the use of the map because of a material breach of Pakistan for the
according to them, the map is erroneous. So hijacking incident, therefore suspended the
invoking the doctrine of error, it says that its treaty between them which is the basis of
consent to map was vitiated because of error. What jurisdiction of the ICJ.
did the ICJ say to that? The Court held that the mere commission of
a material breach will not render the treaty
The map was drawn on the basis of a natural suspended because this need to be claimed
boundary, a watershed. The result of the drawing of by the injured state and follow a procedure.
the map, which was participated by the members of Otherwise, this will result in all breach of
the committee established by the French treaties not to be brought to the ICJ despite
government, with a representative of Thailand. The the ICJ jurisdiction clause whenever there is
participation of Thailand is important because it material breach due to alleged automatic
argues that the map was erroneously drawn as the suspension of the treaty. This is impractical.
map was made in favor of Cambodia. The temple Related to this discussion is
of Preah Vihear Temple was included in the countermeasure, reprisal and retorsion.
territory of Cambodia instead of Thailand. Please refer to article 49, 51, to 52 of the
state responsibilities for countermeasure.
The Court, however, noted that when the map was
When is countermeasure relevant?
drawn, Thailand participated and was silent for
It is relevant when the other party commits
several years without contesting the error. When
Thailand saw the map and found that the temple material breach because as a result of this
the aggrieved stated may avail of
was situated in Cambodia, Thailand never claimed
countermeasure. Thus, even if the
that it was erroneous and be corrected. (DBL: This
countermeasure availed is literally in breach
case is also a leading case law on estoppel by
of treaty obligations it is justified because
silence as a general principle of international law.)
countermeasures are circumstances that
This element pertains to the third one or where the preclude wrongfulness of the act.
state has contributed to the error. In the case, Countermeasure is consists of the non-
assuming there was an error, Thailand contributed performance of the obligation of the victim
to it because it participated in the drawing of the state towards the breaching state. Read
map. again ARSIWA.
Material breach is not applicable in
Three important grounds for termination (which humanitarian law/treaties as a ground to
could include not only withdrawal bit also terminate a treaty.
suspension): Example: States A, B, C, and D has a
1. Material Breach (Art 60) human rights treaty. State A violated the
Cases: ICAO or India v. Pakistan treaty, this should not be a ground of State
Important: Whenever there is a material B to withdraw. This is due to the essence of
breach, it does not mean that the treaty is humanitarian law or treaties, that they are
already suspended because you still need there to protect civilians and civilian objects
to contest. In the ICAO case there is an from armed conflicts or conflicts of war.
agreement that any dispute between them
have to be elevated to the ICAO and submit
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 Namibia or the East-west Africa Case is the preservation of the environment. But the
also an illustration of breach of the provision norm on International Environmental Law was
of the treaty. not yet a norm when both states entered into a
treaty.
There are two ways of committing material
breach: However, Hungary, subsequently abandoned
a. Repudiation of a treaty not sanctioned the treaty because they learned that after initial
by the convention; suspension of project, Czechoslovakia reacted
Example: A State invoked fundamental by planned implementation the Variant C.
change of circumstance thus, no longer
performs an obligation found in the Hungary alleged that Czechoslovakia’s act of
treaty. However, there is actually no implementing the “Variant C” would divert 80%
ground to invoke fundamental change of the flow of the Dalupe River (which is a shared
circumstance, for instance change in resource of both states; shared resource
circumstance has not really modified the regime which requires equitable use of all
circumstance of the parties. Thus, the states concerned) to Czechoslovakia. Hungary
State repudiates the treaty which is not said that it was a material breach because it
sanctioned by the present convention. violated the object and purpose of the treaty
b. Violation of a provision essential to because the object of the treaty is to share the
accomplishment of object and purpose Danube River.
of the treaty.
Example: The treaty requires Czechoslovakia argued that it was not a
disarmament after one year. But it is material breach, but only in response to the
already 5 years after the treaty came earlier breach committed by Hungary
into force and there is still no (considered it as a counter-measure)
compliance.
Was it right on the part of Hungary to suspend
Gabcikovo-Nagymaros Project and later on abandon it’s obligation on the
Hungary and Czechoslovakia both entered into ground that Czechoslovakia committed material
an agreement in creating a project. The project breach? Two points:
entered into by the two states created a 1. The ICJ held that you cannot withdraw from
systems of locks, hydroelectric power plant, and a treaty from a breach that is yet to be
flood control. committed. You cannot claim suspension
and withdrawal if the breach was not yet
The Treaty was signed in 1977. Thereafter, committed. This is premature.
both parties slowly performed their works. But 2. Countermeasure in relation to material
there were changes in the administration, from breach. The ICJ held that countermeasures
one regime in another. In Hungary for example, has the following elements:
its government had a change in administration a. The countermeasure is directed against
and a lot of its citizens, most especially the the state committing the material
environmentalists in Hungary opposed the breach;
project due to its environmental effects like the b. The countermeasure must be to compel
system of blocks which will pollute the waters. compliance of the obligation in the
treaty; and
Initially Hungary wants to suspend the project c. Countermeasure must be proportionate.
because if they pursue the project, they will be According to ICJ, the act of Czechoslovakia
violating another International Law, specifically was not proportionate to the material breach
the International Environmental Law, which is committed by Hungary because diverting
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 80% of the river is more than necessary. would compel the party to essentially
This will also deny Hungary over a shared perform a different obligation.
water resource.
Did the emergence of environmental law,
2. Impossibility of performance (Art. 62) prevent Hungary from continuing the
Example loss of the object or subject of the project?
treaty. Another FCN treaty, State A is As per examination of the ICJ, the treaty
obliged to give State B navigational rights has provisions for adjusting the plans and
because there is a river that pass through specifications of the project of it will result to
the territory of State A that will also pass pollution. Therefore, Hungary should have
through State B. After some time, the river change the specification of his project to
dried up due to climate change. As a result avoid pollution. Thus, obligation can still be
State A will not grant vehicles to pass performed.
through because the treaty provides for
navigational rights which is now impossible. (DBL: Any illustration is hypothetical
because there had never been a case, so
3. Rebus sic stantibus (Art. 65) or far, that best illustrates fundamental change
Fundamental change in circumstance in circumstance. This is highly exceptional
Gabcikovo-Nagymaros Project as it is an exception to the general rule
Hungary also invoked fundamental change pacta sunct servanda. This has never been
of circumstance namely, change in the legal successfully invoked.)
system. Because by the time the project
started, the international environmental law Hungary also invoked state of necessity.
developed that prohibited projects which will The ICJ held that invoking state of necessity
damage the environment. This was does not mean withdrawal/termination of the
manifested in rallys which compelled the treaty but invocation means that the treaty is
government to stop project. valid and enforceable. Under Article 25 in
the ARSIWA, these are circumstances
The ICJ held that one requisite for the precluding the wrongfulness of an act not in
fundamental change in circumstance is, that conformity with an international obligation of
the change in circumstance was unforeseen that State. The idea is, this is not a ground
by the parties. The ICJ further said that the to terminate/suspend the treaty but only a
development in law cannot be considered ground to excuse a supposed breaching
as unforeseen because laws are essentially state of any responsibility.
dynamic. The parties must have been
aware that the laws are static and that any Take note of the procedure for termination of a
time it could change. treaty, this is not automatic. The grounds are
exclusive as mentioned in the VCLT.
Secondly, the change in circumstance must
have resulted in the redical transformation DBL: If you have last 10 minutes to review in Law
of the extent of the obligation still to be of Treaties, review Gabcikovo-Nagymaros Project
performed. The change must have case.
“increased the burden of the obligations to
be executed to the extent of rendering the Procedure in Invalidation, Termination or
performance something essentially different Suspension of Treaties
from that originally undertaken”. This means 1. Exclusive grounds: Under VCLT only (Art. 42)
that if you force a party to execute o perform 2. General Rule: Should affect the whole treaty
obligation stipulated in the treaty, which (Art. 44)
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3. Subject to loss of right (Art. 45) a. Review, revise, reverse, modify, or affirm on
4. General rule: Cannot invoke internal law (Art. appeal or certiorari, as the law or the Rules of Court
46) may provide, final judgments and orders of lower
5. Must NOTIFY IN WRITING the other party of courts in:
its claim and the proposed measure (Art. 65[1]) b. All cases in which the constitutionality or validity
As the injured state, your duty is to notify the of any treaty, international or executive agreement,
other party of your claim. Claims of whether law, presidential decree, proclamation, order,
you are saying there is a material breach, instruction, ordinance, or regulation is in question.
fundamental change in circumstance and the
prosed measure (withdrawal, suspension or Sec 18(7), Art XIII, 1987 Constitution
termination etc.) This is to give the other party The Commission on Human Rights shall have the
the chance to explain whether there was a following powers and functions: Monitor the
breach or not and whether there was a Philippine Government's compliance with
fundamental change in circumstance. This is international treaty obligations on human rights.
some sort of a due process.
6. If no objection within a general period of 3 Sec 25, Art XVIII, 1987 Constitution
mos., the concerned State may carry out the After the expiration in 1991 of the Agreement
measure proposed though a duly signed between the Republic of the Philippines and the
instrument. Three months could be dispenses United States of America concerning military bases,
with if there is a sense of urgency. foreign military bases, troops, or facilities shall not
7. If there is an objection, the concerned State be allowed in the Philippines except under a treaty
must first avail of pacific or peaceful means duly concurred in by the Senate and, when the
of dispute settlement under Art. 33 of the UN Congress so requires, ratified by a majority of the
Charter before it can invoke the ICJ votes cast by the people in a national referendum
jurisdiction. held for that purpose, and recognized as a treaty by
If not go to ICJ to effect your plan, suspend or the other contracting State.
withdrawn.
2. What is the role of the DFA in the conclusion of a
Philippine Practice: treaty, international or executive agreement by the
1. State the relevant provisions in the 1987 Philippines?
Constitution that affect international law. Please go to EO 459. The Secretary of the
Sec 2, Art II, 1987 Constitution Department of Foreign Affairs determined if it is an
The Philippines renounces war as an instrument of Executive Agreement, Treaty or an International
national policy, adopts the generally accepted Agreement.
principles of international law as part of the law of
the land and adheres to the policy of peace, 3. Distinguish: International Agreement, Treaty, and
equality, justice, freedom, cooperation, and amity Executive Agreement. Who decides whether it is
with all nations. IA, treaty, or EA?
There is no distinction in international law, for as
Sec 21, Art VII, 1987 Constitution long as they are entered into between both states
No treaty or international agreement shall be valid and is in writing, then it is considered an
and effective unless concurred in by at least two- international agreement.
thirds of all the Members of the Senate.
However, in our domestic jurisdiction, all three are
Sec 5(2) (a), Art VIII, 1987 Constitution considered as international agreements but differ
The Supreme Court shall have the following procedurally.
powers:

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A. Treaty – international agreements entered into Thus, if this is the purpose of the senate for
by the Philippines which require legislative concurrence, this is not applicable in withdrawal but
concurrence after executive ratification. only in ratification.
B. Executive agreement – similar to treaties, except
that they do not require legislative concurrence. DBL: Subscribes to the counterargument because
withdrawal of a treaty is a diplomatic function and is
PH distinction is due to dichotomy that treaty a prerogative of the president. Same as in Bayan v.
requires concurrence while executive agreement Romulo, where the President has prerogative not to
does not. require concurrence of senate in treaty making
because as a matter of practice this is an
4. Who shall represent the Philippines in the international law.
different stages of treaty formation?
EO459

5. When shall treaties enter into force in the

Philippines?
EO459

6. May the President refuse to submit a treaty to

the Senate for the its concurrence?
EO459. Please refer to Bayan Muna vs. Romulo.
Yes because it is part of the prerogative of the
President.

Discussion on formative assessment. Withdrawal of

the President from a treaty without concurrence of
the senate.
The constitution is silent as to withdrawal although
it is clear as to concurrence of senate as to treaty.
Thus, if the President withdraws from a treaty is
concurrence of senate still required?

Argument: You can argue that there should be

concurrence because, concurrence of senate is a
check to the powers of the president. Thus, if the
treaty is withdrawn the senate should also
participate.

Counter argument: In most jurisdiction, we allow

the legislative branch to participate in treaty making
to avoid the president from bypassing the senate in
implementing a certain rules in the Philippine
territory without the congress. Congress is the rule-
making authority of the PH.
Example: Congress does not allow same-sex
marriage. But suddenly, congress enters into a
treaty with another state allowing same-sex
marriage. In a way this bypassed congress.
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