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Some Dissenters

What is International Law? A body of rules and principles of action which are binding upon civilized states in their relation to one another A law which deals with the conduct of the states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical Scope of International Law a. Regulation of space expeditions b. Division of the ocean floor c. Protection of human rights d. Management of international financial system e. Regulation of the environment f. Preservation of peace Is International Law a Law? Henkin: It is probably the case that almost all nations observe all principles of international law and almost all of their obligations almost all of the time Brierly: The ultimate explanation of the binding force of all law is that man, whether he is a single individual or whether he is associated with other men in a state, is constrained, in so far as he is reasonable being, to believe that order and not chaos is the governing principle of the world in which he lives Some Theories about International Law Command Theory Austin: Law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed International law is not law because it does not come from a command of a sovereign International law derives its binding force from the consent of states Treatiesexpression of consent Customvoluntary adherence to common practices, is seen as expression of consent Law is derived by reason from the nature of man International lawapplication of natural reason to the nature of the state-person Customary lawwhat are regarded as generally accepted principles of law are in fact an expression of what traditionally was call natural law
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Pragmatic Theory

International lawa combination of politics, morality and self-interest hidden under the smokescreen of legal language International law is law because it is seen as such by states and other subjects of international law

Public International Law v. Private International Law Public International Law Referred to as International Law Governs the relationship between and among states and also their relations with international organizations and individual persons Private International Law Referred to as Conflict of Laws Domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts

CHAPTER 2 SOURCES OF INTERNATIONAL LAW What Sources are Domestic Lawsfound in statute books and in collections of court decisions Classifications of Sources 1. Formal sourcesvarious processes by which rules come into existence a. Legislation b. Treaty making c. Judicial decision making d. Practice of states 2. Material sourcesidentify what the obligations are a. State practice d. Judicial decisions b. UN Resolutions e. Writings of jurists c. Treaties Art. 38(1) of the Statute of the International Court of Justice 1. International conventionsestablishing rules expressly recognized by contesting states 2. International customevidence of a general practice accepted as law 3. General principles of law recognized by civilized nations 4. Subsidiary means for determination of rules of law a. Judicial decisions b. Teachings of the most highly qualified publicists Restatement of Foreign Relations Law of the US 1. Customary Law 2. International agreement 3. General principles common to the major legal system

Consensual Theory

Natural Law Theory

Public International Law

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Sources of International Law 1. Custom 4. Generally recognized principles of law 2. Treaties 5. Judicial decisions 3. International agreements 6. Teachings of highly qualified publicists Custom or Customary Law A general and consistent practice of states followed by them from a sense of legal obligation Elements: 1. Material factorhow state behaves o Elements of Practice of sates or usus a. Durationmay be either short or long; not the most important element North Sea Continental Shelf Cases: Short duration, by itself, will not exclude the possibility of practice maturing into custom provided that other conditions were satisfied. State practice should be extensive & uniform in the sense of the provision invoked, and should have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. b. Consistencycontinuity and repetition Asylum Case: Colombia wanted Haya de la Torre be granted safe conduct & be a refuge. Columbia had not proven the existence of a constant & uniform practice of unilateral qualification as a right of the State to refuge and an obligation upon the territorial state. c. Generality of the practice of statesuniformity and generality of practice need not be complete but it must be substantial Nicaragua v. US: practice need not be in absolute uniformity with the purported customary rule as long as it is consistent with such rules. Opinio Jurisbelief that a certain form of behavior is obligatory Nicaragua case: for a new customary rule to be formed, not only must the acts concerned amount to a settled practice, but must be accompanied by opinion juris sive necessitas Dissenting states: subsequent contrary practice o Dissenting states are bound by custom unless they had consistently objected to it while the custom was merely in the process of formation
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It is also possible that after a practice has been accepted as law, contrary practice might arise Fisheries Jurisdiction Case: if the contrary practice should gain general acceptance, it might instead become the law

Evidence of state practice and opinio juris a. Treaties b. Diplomatic correspondence c. Statements of national leaders and political advisers d. Conduct of states Instant Custom o A spontaneous activity of a great number of states supporting a specific line of action The Martens Clause Until a complete code of laws of war has been issued, inhabitants & belligerents are protected under the rule on the principles of the law of nations as they result from: usages of civilized people, laws of humanity & public conscience Psychological or subjective factorwhy they behave the way they do


Treaties Determine the rights and duties of states just as individual rights are determined by contracts Binding force comes from the voluntary decision of sovereign states to obligate themselves to a mode of behavior Treaties and Custom If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law Adherence to treaties can be indicative also of adherence to practice as opinio juris If treaty comes later than a particular custom, treaty should prevail If a later treaty is contrary to a customary rile that has the status of jus cogens, custom will prevail The later custom, being the expression of a later will, should prevail A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law Preemptory norm of general international law = a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character General Principles of Law Recognized by Civilized Nations This has reference to principles of municipal law common to the legal systems of the world
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Public International Law

Judicial Decisions Decisions of the court have no binding force except between the parties and in respect of that particular case Decisions do not constitute stare decisis Decisions of the ICJ are not only regarded as highly persuasive in international circles but they have also contributed to the formulation of principles that have become international law Teachings of Highly Qualified Writers and Publicists Publicists = institutions which write on international law a. The International Commission b. The Institut de Droit International c. International Law Association d. Restatement of Foreign Relations Law of the US e. Annual publication of the Hague Academy of International Law Equity When accepted, is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice Where 2 parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar non-performance of that obligation by the other party The Courts recognition of equity as part of international law is in no way restricted by the special power conferred upon it to decide a case ex aequo et bono, if the parties agree thereto Kinds of Equity: 1. Intra legemwithin the law; the law is adapted to the facts of the case 2. Praeter legembeyond the law; used to fill the gaps within the law 3. Contra legemagainst the law; refusal to apply the law which is seen as unjust Other Supplementary Evidence 1. UN Resolutionsgenerally considered merely recommendatory but if they are supported by all the states, they are an expression of opinio juris communis 2. Soft LawNon-treaty Agreements; international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties o Administrative Rulesguide the practice of states in relation to international organizations

1969 Vienna Convention on the Law of Treaties Governs treaties between states Entered into force in January 1980 Definition of Treaties An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments and whatever its particular designation Even oral agreement can be binding, however, only written agreements that are new, come under the provisions of the Vienna Convention Characteristics to make it binding: 1. Commitment was very specific 2. There was a clear intent to be bound Qatar v. Bahrain: exchange of notes between 2 heads of state considered an international agreement; minutes are not a simple record of the meeting, they enumerate commitments parties have consented; they create rights and obligations; they constitute an international agreement Norway v. Denmark: oral declaration can be binding Australia v. France and New Zealand: unilateral declarations concerning legal or factual situations may create legal obligations; if given publicly with an intent to be bound, it is binding Functions of Treaties a. Sources of international law b. Charter of international organizations c. Used to transfer territory, regulate commercial relations, settle disputes, protect human rights, guarantee investments Different Kinds of Treaties Multilateral Treaties Open to all states of the world; Create the norms which are the basis for a general rule of law Can either be Codification Treaties or Law Making Treaties, or both Operate through the organs of the different states 1. Universal scope 2. Regional In the nature of contractual agreements which create shared expectations such as trade agreements of various forms; Contract Treaties

Treaties that create Collaborative Mechanism Bilateral Treaties


THE LAW OF TREATIES e. Protocols f. Concordat g. Modus vivendi

Various names of Treaties a. Conventions c. Covenants b. Pacts d. Charters

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The Making of Treaties 1. Negotiationforeign ministries, diplomatic conferences 2. Power to negotiate

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3. 4.

5. 6.

7. 8.


Authentication of textsigning of the document; so that states will know the contents & avoid misunderstanding Consent to be bound: a. Signature e. Approval b. Exchange of Instruments f. Accession c. Ratification g. Other means if so agreed d. Acceptance Accession to a treatystates which did not participate in the initial negotiation may express their consent to be bound Reservationsunilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to the State Entry into force of treatiesdate agreed or once consent given (but provisional application can also apply) Application of treaties o PACTA SUNT SERVANTAevery treaty in force is BINDING upon the parties and must be PERFORMED by them in GOOD FAITH o A party may NOT INVOKE INTERNAL LAW as justification for its failure to perform a treaty o It is binding upon each party in respect of its entire territory unless a different intention appears in the treaty or is otherwise established Interpretation of Treaties a. Objective approachinterpretation according to the ordinary meaning of the words b. Teleological approachinterpretation according to the telos or purpose of the treaty c. Subjective approachhonors special meaning given by the parties Air Frace v. Saks: airplane passenger became 1 ear deaf. Accident as an unusual or unexpected happening, not passengers own internal reaction. Facts to prove: text of Warsaw Convention, drafter by continental jurists, consistent with history of Warsaw Convention, conduct of the parties, US Court precedence

Modificationinvolves only some parties Termination of Treaties Terminated or suspended according to the terms of the treaty or with the consent of the parties 1. Material Breach a. Repudiation of the treaty not sanctioned by the present Convention b. Violation of a provision essential to the accomplishment of the object or purpose of the treaty 2. Supervening Impossibility of Performance o Results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty 3. Rebus sic stantibus o Resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty Fisheries Jurisdiction Case: changes of circumstances which must be regarded as fundamental or vital are those which imperil the existence or vital development of one of the parties. Change in circumstance alleged by Iceland cannot be said to have transformed radically the extent of the jurisdictional obligation. Namibia Case: if revocation only takes place with the concurrence of the mandatory (South Africa), it would be contrary to the general principle of law governing termination on account of the breach and would be an impossibility. Consent of the wrongdoers to such a form of termination cannot be required. Danube Dam Case: impossibility of performance may not be invoked when it results from that partys own breach. Changes of political nature, reduced economic viability of the project, and progress of environmental knowledge and international environment law are not of such nature that would radically transform obligations. Violation of other treaty rules or of general international law may justify taking of certain measures but not constitute a ground for termination. Czechoslovakia did not act unlawfully when it constructed works. Procedure for the Termination of Treaties 1. Notify other parties of ground and measure proposed 2. If no objection, carry out the measure proposed 3. If there is an objection, follow Art. 33 Authority to Terminate Belongs to the one who has authority to enter into the treaty In the Philippines, authority to conclude treaties is shared between the Senate and the President
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Invalidity of Treaties 1. Errorrelates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed 2. FraudState has been induced to conclude a treaty 3. Corruption of a Representative of a State 4. Coercion of a Representative of a State 5. Coercion of a State by the threat or use of force 6. Violation of jus cogenstreaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law Amendment and Modification of Treaties Amendmentformal revision done with the participation, at least in its initial stage, by all the parties to the treaty
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Public International Law

Succession to Treaties Clean Slate Rule: newly independent state is not bound to maintain in force or to become a party to any treaty by reason only of the fact that at the date of the succession of states, the treaty was in force in respect of the territory to which the succession of state relates

CHAPTER 4 Dualism v. Monism


Philippines adheres to the dualist theory and at the same time adopts the incorporation theory and thereby makes international law part of domestic law International law can be used by Philippine courts to settle domestic disputes Art. 2, Sec. 2 of the Constitution: only customary law and treaties which have become part of customary law become part of Philippine law by incorporation Conflict between International Law and Domestic Law: International Rule Before an international tribunal, a state may not plead its own law as an excuse for failure to comply with international law Exception: Art. 46 of Vienna Convention = in cases where the constitutional violation was manifest and concerned a rule of its internal law of fundamental importance Manifest = objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith Conflict between International Law and Domestic Law: Municipal Rule Domestic courts are bound to apply the local law Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the Supreme Court to declare a treaty unconstitutional; however, even if declared unconstitutional, the treaty will not lose its character as an international law Head Money Case: treaty is not superior to acts of Congress Whitney v. Robertson: courts will construe a treaty and an act of legislation as to give effect to both. But if the two are inconsistent, the one last in date will control the other. the unsatisfied country will have to present its complaint to the executive, not to the courts.

Dualist or Pluralist Theory *when international and municipal law are in conflict, Municipal law must prevail Monism or Monistic Theory *International and Municipal laws belong to only one system of law

As source


As to Regulates relations relations between states they regulate As to their Law between substance sovereign states Two theories: A. Municipal law subsumes and is superior to international law B. International law is superior to Domestic Law (supported by Kelsen)

Municipal Law Product of local custom or of legislation Regulates relations between individual persons under the state Law of sovereign over individuals

International Law Treaties and custom grown among states

Municipal Law in International Law Follows the dualist tradition and blocks domestic law from entry into the international arena A state which has violated a provision of international law cannot justify itself by recourse to its domestic law A state which has entered into an international agreement must modify its law to make it conform to the agreement International Law in Domestic Law How does international law become part of domestic law for dualists? 1. Doctrine of Transformation o It must be expressly and specifically transformed into domestic law through the appropriate constitutional machinery such as an act of Congress or Parliament o Treaties do not become part of the law of a state unless it is consented to by the state 2. Doctrine of Incorporation o They become part of the law of the land
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