State practice- overt acts that are done by the states

Consistency, generality are important

Where there is no custom yet like law on outer space, duration for which the
custom is required may not be as long. Particularly where there is no objector ,
the duration required is going to be very short

If consistent, no issue
If your are talking about some minor deviations from that norm, if it is not an
issue either, as long as for example when the states when they see that deviation
considered to be a deviation from that customary law norm

If it is a major deviation, there will be no consistent practice that can be used as a

basis for an international law norm

Fisheries case- they could not find consistent practice; and even if there were,
Norway consistently and persistently objected to it and other states acquiesced
to it

Matter of consistency can result in different things:

o Asylum- if many deviations, and no consistent practice at all, then there is
no customary law norm to begin with
o If there is already a customary law norm in place, it can result in a new
customary law norm; or for that matter
o If a state persistently objected to it from beginning, that customary law
norm can be considered as not applying to state

One way to think about treaties v custom:

Treaties- norm governs only those parties to the treaty
Custom- can apply as to all states because they are deemed to have acquiesced in
the rule

The exception being:

Persistent objector
Regional customs that only binds those who can practice it and deem it to be law

Elements of Customary Law

o State practice
o State is a juridical entity, acts through its official so you will find
evidence of its acts in various matters such as newspaper, hx
records, statement of authorities, UNGA resolutions, decisions of
courts, etc
o Question: Can a treaty bind people that are not parties to it?
 Answer: No. Vienna Convention stipulations; or if those
treaties later on becomes a customary law norm
o How to prove it?
o Opinio Juris
 o Why is it important? Because it separates the idea of simple
courtesy/ international comity from what is customed as a source
of law
o How do you figure out what is opinion juris?

Jus Cogens v Erga Omnes

They are not to be confused with customary international norms. They are
separate and distinct from c i nor

Erga Omnes norms now confer a generalized right of standing upon other states
to assert the rights or bring an action at the court. It is like the standing rules in
consti law as opposed to real party in interest rules in civil procedure

Now, jus cogens- analogy there is like your consti v normal statute such that any
statute and derogation of a jus cogens norm or rather international treaty must
be consistent with a jus cogens norm otherwise that treaty is considered void.
(Vienna Convention- restatement of customary law but not all)

How are they created?

Byer: creation of Erga omnes rule is a two step process- separation of
substantive rule, and creation of additional right and obligation to conferning
standing on others

Just because
INTERNATIONAL LAW AND MUNICIPAL LAW – 11/28, 1:21:13

What happens if a treaty is inconsistent with a statute?

Basically they are co-equal. Same level of priority.

Treaty violation of a constitution- domestic effect

Constitution will prevail

If international effect-
You cannot use your domestic law as excuse. (Vienna Convention)

Executive Order vs Statute

Statute

Executive Order vs Constitution

Constitution

Are Executive Agreements parts of the law of land to begin with?

EA is not part of the law of the land because:

o Under incorporation article, because it is not customary international law
norms- state practice + opinio juris (Art 2 Sec 2)
o Not transformation because transformation deals with treaties which
requires concurrence (Art 7 Sec 21)
o Typical legislation under Art 6 Sec 1

dualist

As regards the matter of consent, di ba?

You are not deemed to have consented if there was a violation of domestic law
principle of fundamental importance, which is manifest

Example will be it was made known to state parties in a conference that this
fellow is not authorize to act on behalf of the Philippines, pero pinayagan pa rin
pumirma, sorry ka na lang!

Gonzales case-
Conflict between EA and statute (RA)
Statute is superior

Lim v Executive Secretary

In re Garcia
Even assuming that he was covered by the treaty, still cannot be invoked because
it will deprive the SC of its jurisdiction with regard to promulgation of rules in
admission of practice of law
Not to mention that the treaty provides that it is subject to the laws and
regulations of the latter country, referring to the Philippines which requires
passing bar exam to practice law

Nicolas v Romulo
Equal protection clause exception is where there is a valid classification based on
valid distinction
Was there a valid classification? YES, they are permitted to be treated differently
because Art 5, US personnel shall have right to visit, however in detention, it
shall be made by the Filipino party. Not consistent with VFA, bcoz it states that
detention should be by Filipino courts. There is some sort of incongruity

How about the matter of self-executing treaties?

VFA is self-executing, bcoz parties intended its provisions to be enforceable,
intended to carry out the provisions in mutual defense treaty

What exactly are we talking about when we deal with self-executing treaties?
Bcoz the contention was that the VFA wasn’t, right?
If it is self-executing, then it becomes part of the law of the land by
transformation (not all treaties become part of the law of land by
Transformation) only those which are self-executing which do

How do you figure if self-executing or not?

Look at the text of the treaty, if not enough, look for other matters

Bayan Muna v Zamora 2:23:00

Does it require concurrence? No bcoz it is only an EA

Why was it held to be an EA supposedly?

They made reference to US practice. They talked about these EA signed by the
president,

On the contention that it was a violation of the Rome Statute, and that it
undermined the ICC jurisdiction?
Signed but not ratified argument is incomplete. Prior to ratification, there is an
obligation to

Domestic statute which gives the duty

International Personality

A state has jurisdiction

TERRITORY

Over what type does the state have the greatest amount of rights?

Internal waters- includes all waters

What is the right as regards with the internal waters?

Sovereignty is same in land. Not subject to right of innocent passage

How do you recon internal waters?

From the baseline of the territory

Ways of drawing baselines:

Normal Baseline
Straight Baseline

What about archipelagic states?

These are made up wholly of one or more archipelagos.
For these states, the straight archipelagic baselines joining the outermost points of
the outermost islands and drying reefs of the archipelago, provided these points are
sufficiently close to one another and that within such baselines are included the
main islands and an area in which the water area to land area ratio is between 1:1
and 9:1. (There is a ratio how much water can be enclosed)

You cannot use this in a non archipelago!

Some guidelines in drawing the baselines:

1. the length of such baselines shall not exceed 100 nautical miles, except that up to
3% of all the baselines may reach up to 125 miles 


2. the drawing of the baselines shall not depart to any appreciable extent from the
general configuration of the archipelago 


3. such baselines shall not be drawn to and from low-tide elevations 


4. these shall not be applied in such a manner as to cut off from the high seas or EEZ
the territorial sea of another State 


What about the waters enclosed? While archipelagic states have sovereignty over a
sea area enclosed by the baselines, all other states enjoy the right of innocent
passage through designated sea lanes.

Definition of Innocent Passage: is navigation through waters in an expeditious and

continuous manner, which is not prejudicial to the peace, good order, or security of
the coastal state

Territorial sea v Internal waters

Territorial sea is the belt of sea outwards from the baseline and up to 12 nautical
miles beyond. Within the territorial sea, the flag state has criminal and civil
jurisdiction. There is right of innocent passage

Internal waters- no right of innocent passage

Contiguous zone- This is an area of water not exceeding 24 nautical miles from the
baseline. It thus extends 12 nautical miles from the edge of the territorial sea.

Continental shelf- exclusive to the coatal state

Deep Sea bed? Considered common heritage.

Common heritage vs Res communis?

Lets move on to Philippines v China

How does china’s non participation affected the exercise of jurisdiction by the arbitral
tribunal?

China’s non-participation did not affect the arbitration, because it was a signatory to
the UNCLOS, hence the PCA does not need the consent of China to proceed with the
arbitration proceedings

Paragraph 117: The Convention, however, expressly acknowledges the

possibility of non-participation by one of the parties to a dispute and confirms
that such non-participation does not constitute a bar to the proceedings. Article
9 of Annex VII provides: 


Article 9 Default of Appearance 
If one of the parties to the dispute does not
appear before the arbitral tribunal or fails to defend its case, the other party may
request the tribunal to continue the proceedings and to make its award. Absence of
a party or failure of a party to defend its case shall not constitute a bar to the
proceedings. Before making its award, the arbitral tribunal must satisfy itself not
only that it has jurisdiction over the dispute but also that the claim is well founded
in fact and law. 

NOW, DOES IT MEAN THAT THE TRIBUNAL CAN MAKE A RULING
AGAINST CHINE BECAUSE IT IS IN DEFAULT?

The Tribunal has also taken measures to safeguard the Philippines’ procedural
rights. As noted by the International Tribunal for the Law of the Sea in Arctic
Sunrise, a participating party “should not be put at a disadvantage because of the
non-appearance of the [non-participating party] in the proceedings.”

Are there any obligations on the part of PCA?

China’s non-participation imposes a special responsibility on the Tribunal. There

is no system of default judgment under the Convention. As will be apparent in
the course of this Award, the Tribunal does not simply adopt the Philippines’
arguments or accept its assertions untested. Rather, under the terms of Article 9
of Annex VII, the Tribunal “must satisfy itself not only that it has jurisdiction over
the dispute but also that the claim is well founded in fact and law” before making
any award. (1:15:01)

What is the tribunal obliged to do?

Article 9 of Annex VII, the Tribunal “must satisfy itself not only that it has
jurisdiction over the dispute but also that the claim is well founded in fact and
law” before making any award—Hence, in doing so, all communications and so
are done to ensure that the claim is well founded.

What about the argument that the tribunal should have any jurisdiction because
it is a case of maritime delimitation?
Finally, the Tribunal examined the subject matter limitations to its jurisdiction
set out in Articles 297 and 298 of the Convention. Article 297 automatically
limits the jurisdiction a tribunal may exercise over disputes concerning marine
scientific research or the living resources of the exclusive economic zone. Article
298 provides for further exceptions from compulsory settlement that a State
may activate by declaration for disputes concerning (a) sea boundary
delimitations, (b) historic bays and titles, (c) law enforcement activities, and (d)
military activities. By declaration on 25 August 2006, China activated all of these
exceptions. 


(1:24:44)

(a) sea boundary delimitations,

There were no conflicting rights of that sort!

(b) (b) historic bays and titles:

The purpose of this extended recitation is to emphasise that there
exists, within the context of the law of the sea, a cognizable usage
among the various terms for rights deriving from historical
processes. The term ‘historic rights’ is general in nature and can
describe any rights that a State may possess that would not normally
arise under the general rules of international law, absent particular
historical circumstances.

Historic rights may include sovereignty, but may equally include

more limited rights, such as fishing rights or rights of access, that
fall well short of a claim of sovereignty.

‘Historic title’, in contrast, is used specifically to refer to historic

sovereignty to land or maritime areas.

Maritime areas ---- ‘Historic waters’ is simply a term for historic

title over maritime areas, typically exercised either as a claim to
internal waters or as a claim to the territorial sea, although “general
international law . . . does not provide for a single ‘régime’ for
‘historic waters’ or ‘historic bays’, but only for a particular régime
for each of the concrete, recognised cases of ‘historic waters’ or
‘historic bays’.”230 Finally, a ‘historic bay’ is simply a bay in which a
State claims historic waters. 

Reefs

Whether island, rock or low tide elevation?

What does the word sustain mean?

The Tribunal considers that the ordinary meaning of “sustain” has three
components.
 The first is the concept of the support and provision of essentials.
 The second is a temporal concept: the support and provision must be over
a period of time and not one-off or short-lived.
 The third is a qualitative concept, entailing at least a minimal “proper
standard”.

Thus, in connection with sustaining human habitation, to “sustain” means to

provide that which is necessary to keep humans alive and healthy over a
continuous period of time, according to a proper standard. In connection with an
economic life, to “sustain” means to provide that which is necessary not just to
commence, but also to continue, an activity over a period of time in a way that
remains viable on an ongoing basis.

Third, the use of the term “sustain” indicates both time and
qualitative elements. Habitation and economic life must be able to
extend over a certain duration and occur to an adequate standard. 


Human habitation

Economic right

Rock vs low tide elevation

If eco life is dependent on presumptive territorial sea or eez-

Economic life must be