A treaty may violate international law if it conflicts with a peremptory norm or jus
cogens of international law. A treaty is void, if at the time of its conclusion, it conflicts
with jus cogens norm. If a new peremptory norm of general international law emerges,
any existing treaty which is in conflict with that norm becomes void and terminates.
Judicial Decisions and teachings of the most highly qualified publicists -, as subsidiary
means for the determination of rules of law-
Jud decisions- A subsidiary means for the determination of rules of law that are
acceptable so long as they correctly interpret and apply international law. Decisions of
national courts, when applying international law, are acceptable.
Teachings of the Most Highly Qualified Publicists (ICJ Statute, art. 38)
The word 'publicist' means 'learned writer.' Learned writings, like judicial
decisions, can be evidence of customary law, and can also play a subsidiary role in
developing new rules of law.
Requisites For A “Highly Qualified Publicist”
1. Fair and impartial representation of law.
2. Acknowledged authority in the field.
****These shall not prejudice the power of the Court to decide ex aequo et bono, if the
parties agree thereto.
EX AEQUO ET BONO - It is to rule in justice and fairness; equity overrides all other rules
of law. The ICJ has no power to decide a case ex aequo et bono, unless all parties agree
thereto (ICJ Statute, art. 38 (2)).
TREATIES
Definition
VIENNA CONVENTION ON THE LAW OF TREATIES (SALIENT PROVISION)
Elements:
It is an international agreement
Between States
In writing
Governed by International Law
General
A state can avoid performance if the treaty collides with its Constitution, but it
cannot escape liability that it may incur as a result of such non-performance.
From the perspective of public international law, a treaty is favored over
municipal law pursuant to the principle of pacta sunt servanda. A party to a
treaty is not allowed to invoke the provisions of its internal law as justification
for its failure to perform a treaty. Nevertheless, as far as the Court is concerned,
a treaty is always subject to qualification or amendment by a subsequent law, or
that, it is subject to the police power of the State (Lim v. Executive Secretary, G.R.
No. 151445, 2002).
Exceptions:
1. The circumstance is the essential basis of consent.
2. The obligation is transformed radically that it becomes burdensome or
unreasonable.
Procedures in Treaty-Making
1. Negotiation
2. Signature
3. Ratification
4. Exchange of Instruments of Ratification
5. Registration with UN
Power to negotiate
The negotiators must possess the power to negotiate
An act relating to the conclusion of a treaty by one who has no proper authority has no legal
effect unless confirmed by the state
Vienna Convention:
Art. 7. Full powers
1. A person is considered as representing a State if:
-he produces appropriate full powers or
-it appears from the practice of the States concerned or from other circumstances that
their intention was to consider that person as representing the State for such purposes and to
dispense with full powers
2. The following are considered as representing the State [No need for full powers]
1. Heads of State, Heads of Government and Ministers of Foreign Affairs
2. heads of diplomatic missions
3. representative accredited by States to an international conference or organisation or
one of its organs
Note: subsequent confirmation of acts of representatives without full powers validates
action on behalf of the state
Authentication of text
Negotiations conclude with the signing of the document. The signatures serve as
authentication of the document
Authentication of a treaty makes the text authoritative and definitive.
Consent to be bound
Once the document has been signed, there are stages which follow which culminate in
making the document binding. The most important step is the consent to be bound. The consent
may be expressed by (1) signature, (2) exchange of instruments constituting a treaty, (3)
ratification, (4)acceptance, (5) approval or accession, or (6) by any other means if so agreed.
Reservations
- when are reservations allowed?
- exceptions?
GR: A state may, when signing, ratifying, accepting, approving, or acceding to a treaty,
formulate a reservation
Exceptions:
1. reservation is prohibited by treaty
2. treaty provides that only specified reservations are allowed 3. reservation is
incompatible with the object and purpose of
the treaty
Reservations to the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide
The following questions were submitted to the UN:
1. can the reserving state be regarded as being a party to the Convention while still
maintaining its reservation if the reservation is objected to by some of the members of
the Convention?
ANS: [Yes, only if reservation is compatible with the convention]
A State which has made a reservation objected to by some of the parties to the
Convention, can be regarded as being a party to the Convention of the
reservation is compatible with the object and purpose of the Convention;
otherwise, it cannot be regarded as a party to the Convention
2. If yes, what is the effect of the reservation as between the reserving state and
a) the parties that objected
ANS: the objecting State can consider the reserving State NOT a party to the
Convention
b) the parties that accepted
ANS: the accepting State can consider the reserving State a party to the
Convention
3. What is the legal effect if an objection to a reservation is made
a. by a signatory who has not yet ratified
ANS: can have legal effect of only if it has ratified. But before
ratification, no effect
b. by a state entitled to sign or accede but has not yet done so
ANS: no legal effect
Entry into force of treaties
Treaties enter into force on the date agreed upon by the parties Art. 24. Entry into force:
A treaty enters into force in such manner and upon such date as agreed upon [stipulation]
In the absence of agreement, as soon as consent to be bound has been established for all the
negotiating states [consent to be bound by all]
when consent to be bound comes after the treaty has come into force, the treaty comes into
force on the date when consent to be bound has been obtained
a treaty is binding upon each party in respect of its entire territory, unless otherwise provided
for by the treaty
Interpretation
-What tests to apply first in determining the interpretation of provisions of treaty
(primary means and subsidiary means)
PRIMARY MEANS
Article 31 General rule of interpretation
GR:
1. a treaty shall be interpreted in good faith
2. ordinary meaning of words in context to other related texts( except: Give "special
meaning" if the parties so intended)
3. relate to object and purpose
Interpretation shall comprise, in addition to the text, including its preamble and annexes:
1. Any agreement relating to the treaty
2. Any instrument in connection with the conclusion of the treaty subsequent agreements
by the parities
3. Subsequent practice in the application of the treaty
4. Other rule of international law applicable
5. interpretation of peace treaty case
SUPPLEMENTARY MEANS
- - Rules of conflict between treaty and law, treaty and constitution, exec. agreement
v. domestic legislation, exec. issuance and implementing rules
- Know how to defend conflicts (is it important to the timing of which came first, where
it should be tried, or is it merely consti > everything?)
Vienna Convention
- Art 27- Article 27. INTERNAL LAW AND OBSERVANCE OF TREATIES A party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty. This rule is without
prejudice to article 46.
- Art 46 Article 46. PROVISIONS OF INTERNAL LAW REGARDING COMPETENCE TO CONCLUDE TREATIES
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation
of a provision of its internal law regarding competence to conclude treaties as invalidating its consent
unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State con ducting itself in the matter in
accordance with normal practice and in good faith.
Invalidity of treaties
grounds for invalidation of a treaty:
[FEDTC]
-fraud
-error of fact
If the error relates to a fact which was assumed by that State to exist at the
time when the treaty was concluded and formed an essential basis of its
consent to be bound
exception: when State contributed by its own conduct to the error, or if there
was constructive notice of such error to such State
-duress
-treaty violates jus cogens
-corruption
*grounds for invalidation can be ratified
Termination of treaties
Modes: [MICE]
2. material breach
3. impossibility of performance
4. change of fundamental position (rebus sic stantibus)
1. after expiration of period, or after purpose has been achieved
- this murderer wants to use an ICJ ruling in domestic courts. US court says he can’t.
2. [treaty] stipulations are not self-executing they can only be enforced pursuant to
legislation to carry them into effect.”
3. Because none of these treaty sources creates binding federal law in the absence
of implementing legislation, and because it is uncontested that no such
legislation exists, we conclude that the Avena judgment is not automatically
binding domestic law.
General Principles
- General Principles of Law -
INTERNATIONAL STATUS OF SW AFRICA – “trusteeship” The ICJ was asked for an advisory
opinion on the status of SW Africa under the International Trusteeship System and what are the
obligations of South Africa as the Mandatory. The answer is found in the general principles of
law as borrowed from traditional municipal law – under the principle of “trust.” Almost all
legal systems possess a system of trust, where for example some minor or lunatic’s
property (or even person) may be entrusted to a responsible person or trustee. By
analogy, it applies to trusteeship under international law. That being the case, South Africa,
as trustee state, exercises but limited control based on confidence and conscience and cannot
carry out the trust or mission for its own benefit. Any attempt to absorb the property entrusted to
them shall be illegal. Finding and applying the general principles of law is all about locating
those rules and institutions of private law as indications of policy – such as the principle
of trust, among many others.
DIVERSION OF WATERS FROM THE RIVER MEUSE – “equity” The principles of equity have
long been applied by international tribunals. Although the ICJ is not expressly authorized by its
Statute to apply equity, it is allowed to apply general principles of law recognized by civilized
nations – w/c includes equity. The power however to apply the principles of equity in no way
restricts the power of the ICJ to decide cases ex aquo et bono should the parties so agree
that the controversy is to be decided base on the said principle. The courts should not shirk
from applying such a principle of obvious fairness.
4. Equity – when the law cannot cover every possible situation for the purpose of deciding
a
controversy, the case may be decided based on equitable principles
5. Ex Aequo Et Bono – it pertains to the power of the ICJ to decide a case equitably
outside the rules of law, at the instance of the parties to the case
FILARTIGA v. PENA-IRALA – “torture” Dolly Filatriga’s brother was tortured to death by Pena
in Paraguay due to her father’s political activism. She was even shown the corpse. Pena was
prosecuted therein but to no avail. Dolly thereafter went to the US and applied for political asylum.
She found out that Pena has arrived at the US and has overstayed – thus she commenced an
action before the NY Court against Pena based on the Alien Tort Statute, as well as the various
International Agreements and Conventions on Human Rights, such as the Universal Declaration.
The trial judge dismissed the case for lack of jurisdiction.
A state’s treatment of its citizens is now a matter of international concern. Torture has become
internationally outlawed, and the abhorrence thereto has come to acquire the status of
international customary law. It is said that the Universal Declaration of Human Rights no longer
fits into the category of “treaty” but has been elevated to the status of customary law. No
government has ever asserted a right to torture its people (or aliens). The law of nations is clear
and unambiguous in condemning torture.
A state has an interest in the orderly resolution of disputes among people w/in its borders
– even if the act complained of took place outside. So long as personal jurisdiction can be
acquired, the courts may adjudicate such transitory tort claims. In principle, it is an
expression of comity by giving effect to the laws of the state where the act was
committed. The law of nations forms an
integral part of common law, and such is
recognized by the (US) Constitution. The contention that the law of nations forms part of state
law only to the extent that Congress has enacted them is untenable. Neither can Pena hide
behind the act of state doctrine. The Alien Tort Statute merely opens the door for the adjudication
by aliens of rights already recognized under the law of nations. For purposes of civil liability,
the torturer has become like the pirate or slave trader – hostis humani generis – an enemy
of al mankind.
Insofar as England is concerned, the incorporation doctrine applies. The courts have
applied IL as it changes w/o waiting for aid from any Act of Parliament. Examples are the
international laws on slavery. The same is the trend in many other countries. IL knows no
stare decisis. If the court is not satisfied that a ruling 30 years ago based on IL still
prevails, it will overturn it in accordance w/ the new rules as they evolve.
- Art 2. Sec. 2 - does not refer to treateis but cutsomary international law whether
codified or not in a treaty and other general principles
- doctrine of incorporation (automatic E: when in conflict to the domestic system - know
how to resolve this)
When the Constitution, under Article 2 Section 2, provides that “the state adopts the generally
accepted principles of international law as part of the law of the land,” it does not refer to
treaties, but rather to international customary law and other general principles of law.
DD: According to the Llamzon Article, the principle of pacta sunt servanda is deemed adopted
by virtue of the incorporation clause – thus treaty obligations are binding. But as pointed out, it is
pacta sunt servanda as a general international custom that is automatically incorporated, not the
provisions of a treaty directly, albeit the fact that the effect is the same.
General principles
- principles of trust, civil law, equity, liability, unjust enrichment, pacta sund servanta,
estoppel, prescription, etc.
- Art 2. Sec. 2 - does not refer to treateis but cutsomary international law whether
codified or not in a treaty and other general principles
- doctrine of incorporation (automatic E: when in conflict to the domestic system - know
how to resolve this)
-doctrine of transformation (must be adopted first see milk code)
OTHERS
PRELIMINARY TOPICS; SOURCES OF INTERNATIONAL LAW WRITING AND OTHER SOURCES
Harris:
• Judicial decision
International decisions DO NOT MAKE CASE LAW.
• Art. 59 of the ICJ Statute provides that “the decision of the Court has no binding
force except between the parties and in respect of that particular case. International law follows civil law tradition.
BUT, these decisions play a large part in the development of international law.
International courts are not mechanical records of law. They do not make law. They are also not bound by their
previous decision as to the law which they apply.
• But courts still refer to past decisions because of the persuasiveness on the intrinsic merits.
• Writers and other sources
-Teachings of the most highly qualified publicists are assigned the same status as judicial
decisions
• It’s difficult to rely on teaching of the most highly qualified publicists because
they like to
contradict each other. Also, writers reflect their national legal tradition
and technique rather
any national political viewpoint.
Role of writers:
analyzes facts and opinions and in drawing conclusions on binding customary rules and on
trends of their evolution
writers influence evolution of international law
Legal Status of Easter Greenland Case
• The Ihlen Declaration, which stated that the Norwegian government will help facilitate the
transfer of sovereignty over Greenland, is a valid sources of obligation
Nuclear test cases (unilateral acts as another source of law)
France publicly announced that it will no longer hold any further tests in the
atmosphere in the South Pacific.
Declarations made by way of unilateral acts, concerning legal or factual
situations, may
have the effect of creating legal obligations. When it is the intention of the State making
the declaration that is should become bound according to its terms, that intention
confers on the declaration the character of a legal undertaking, the State being legally
required to follow a certain course of conduct consistent with the declaration.
-Consists of written instruments that spell out rules of conduct that are not intended to
be legally binding
-not subject to the law of treaties
-do not generate opinio juris required for them to be state practice contributing to
custom
-Cannot be enforced in courts
ex: Helsinki Final Act 1975, Bonn Declaration on International Terrorism 1978
Instruments that clearly have an impact on international relations • may later harden
(hehe) into custom
• or become the basis of a treaty
-a device to overcome a deadlock in relations between states pursuing conflicting
ideological and/or economic claims
• the preparation of draft conventions on subjects which have not yet been regulated or
in regard to which the law has not yet been sufficiently developed in the practice of
States