PIL: BERNAS o No assured procedure of identifying violation

Atty. Yamamoto o All UN can do is: CENSURE (express of adverse criticism)

International is not law because it is commonly disregarded
CHAPTER 1: THE NATURE OF INTERNATIONAL LAW Objections based on exaggerated notion of sovereignty as embodying an
individualist regime: not the reality
What is international law? o Reality: social interdependence and predominance of general
Body of rules and principles of action interest
Which are binding upon civilized states in their relations to one another States are bound by many rules not promulgated by
themselves
States: sole actors in this definition Ultimate analysis
o THERE IS GENERAL RESPECT FOR LAW BECAUSE OF THE
In the past: PIL dealt almost exclusively with regulating the relations between states in POSSIBLE CONSEQUENCES OF DEFIANCE EITHER TO ONESELF
diplomatic matters and in the conduct of war OR TO THE LARGER SOCIETY
Today: sovereign states remain as principals Some theories about international law
Now joined by intl orgs and individuals Command theory
o John Austin: legal philosopher
Restatement of Foreign Relations Law of the United States
o Law consists of commands originating from a sovereign and
Intl law: law which deals with the conduct of states and of international backed up by threats of sanction if disobeyed
organizations and with their relations inter se, as well as with some o Intl law is not law: does not come from a command of a sovereign
of their relations with persons, whether natural or juridical o Reality: nations see int law not as commands but as principles for free
and orderly interaction
Scope of international law
Consensual theory
Regulation of space expeditions
o Intl law derives its binding force from the consent of the states
Division of the ocean floor
Treaties, custom: expression of consent
Protection of human rights o Reality: many binding rules which do not derive from consent
Management of the international financial system Natural law theory
Regulation of the environment o Intl law: application of natural reason to the nature of the state-person
All interests of contemporary international and domestic life o Theory finds little support
o Beyond primary concern for the preservation of peace o Customary law and generally accepted principles of law
Expression natural law
Is international law a law? Dissenters
Basic challenge o See intl law as a combination of politics, morality and self-interest
o Claim that there can be no law binding sovereign states hidden under the smokescreen of legal language
o Non-existence of an international legislative body Ultimate analysis: pragmatic
General Assembly of the UN o International law is law because it is seen as such by states and
Resolutions are generally not binding other subjects of international law
o No international executive
Security council Public and private international law
Often hamstrung by veto power PUBLIC: international law
o No central authority o Governs the relationship between and among states
The Intl Court of Justice o And also their relations with international organizations and
Can bind states only when states consent to be individual persons
bound PRIVATE: conflict of laws
Enforcement of IL is a real problem
 o Deals with cases where foreign law intrudes in the domestic Any substantive rule must be accompanied by an
sphere where there are questions of the applicability of foreign implementation mechanism that can spot and correct
law or role of foreign courts violations
o Socialist states
Brief historical development of international law Led by Soviet Union
Ancient law -> League of nations Sought to avert Western intrusion into domestic affairs even as
Ancient international law they sought relatively good relations with the West for the sake
o Governed exchange of diplomatic emissaries, peace treaties in the of economic and commercial interchange
world of anci Sought to convert developing nations to their ideology
o Jus gentium: law common to all men o Developing countries
Became the law of the vast Roman empire Majority
Modern international law Former colonies suffering from underdevelopment together
o Began with the birth of nation-states in the Medieval age with newly industrializing countries
o Governing principles derived from Roman law or Canon law The end of the Cold war
Drew heavily from natural law Dissolution of Soviet Union=End of the Cold war
o Hugo Grotius: Father of modern international law Newly born Russian Federation did not inherit the Soviet Unions position as
Author: De Jure Belli ac Pacis superpower
law of nations At present: United States=super power
Later given the name of international law by Jeremy o Politically and ideologically leading the western states
Bentham o Acts both as world policeman and global mediator
Positivist approach Socialist countries no longer united with some fo them depending on the
o Reinterpreted international law on the basis of what actually support of Western States
happened in the conflict between the states UN declined as an intl agency for the maintenance of peace
o Significant milestones in the devt of intl law
Peace of Westphalia CHAPTER 2: SOURCES OF INTERNATIONAL LAW
Ended 30 years war
Established treaty for peace cooperation What sources are.
Congress of Vienna Formal sources
Ended Napoleonic wars o Various processes by which rules come into existence
Created a system of multilateral political and economic Material sources
cooperation o Not concerned with how rules come into existence but rather with the
Covenant of the League of Nations substance and content of the obligation
Included treaty of Versailles o Identify what the obligations are
o Ended WW1 o State practice, UN resolutions, treaties, judicial decisions, writing of
jurists
US did not join
o evidence of international law
End of WW2-> end of Cold war
League of Nations failed to prevent WW2
Art. 38(1) of the Statute of the International Court of Justice: most widely
United Nations founded in 1945 accepted statement of the sources of intl law
o Marked the shift of power away from Europe and the beginning of a 1. The Court shall apply
truly universal institution a. International conventions; whether general or particular
o New states carrying a legacy of bitterness against colonial powers, i. Establishing rules expressly recognized by contesting states
became members of the UN b. International custom, evidence of a general practice accepted as law
During this period 3 major groupings of states arose c. General principles of law; recognized by civilized nations
o Western states d. Judicial decisions an the teaching of the most highly qualified publicists
Legal provisions must be clear and precise of the various nations, means for determination of rules of law
 i. Subject to provisions of Art. 59 Need not be complete
2. Provision shall not prejudice the power of the court to decide ex aequo et Sufficient that the conduct of states should be
bono consistent with such rules and that instances of state
conduct inconsistent with a given rule should generally
Restatement (Third) of Foreign Relations Law of the UN have bee treated as breaches of that rule, not as
1. A rule of intl law is one that has been accepted as such by the intl community indications of the recognition of a new rule
of states Opinio juris
a. In the form of customary law o Belief that a certain form of behavior is obligatory
b. By intl agreement o What makes practice an intl rule
c. By derivation from general principles common to the major legal
Dissenting states; subsequent contrary practice
systems of the world
2. Custom IL results from a general and consistent practice o the states o Would dissenting states be bound by custom?
a. Followed by them from a sense of legal obligation Yes, unless they had consistently objected to it while the
3. Intl agreements create law for the state parties custom was merely in the process of formation
a. May lead to the creation of customary international law o Protects only the dissenter and does not apply to other states
i. Which such agreements are intended for adherence by states o Anglo-Norwegian Fisheries case
generally and are in fact widely accepted ICJL: a coastline delimitation rule put forward by England would
4. Gen principles common to major legal systems may be invoked as appear to be inapplicable as against Norway, in as much as
supplementary rules of intl law where appropriate she has always opposed any attempt to apply it to the
Summary: Norwegian coast
Sources of intl o A state joining the intl law system for the first time after a practice has
o Custom become a law is bound by such practice
o Treaties o Possible: after a practice has been accepted as law, contrary practice
o Other intl agreements arises
o Generally recognized principles of law Can doubt on the alleged law
o Judicial decisions Should it gain general acceptance, it might become law
o Teachings of highly qualified and recognized publicists Evidence of state practice and opinion juris
o Treaties
Customs/customary law o Diplomatic correspondence
General and consistent practice of states followed by them from a o Statements of national leaders and political advisers
sense of legal obligation o Conduct of states
2 basic elements of custom o DO NOT FORM CUSTOMARY LAWS UNLESS CHARACTERIZED BY
o Material factor OPINIO JURIS
How states behave May be deduced from the attitude of the parties and of States
o Psychological/subjective factor towards certain General Assembly resolutions
Why they behave the way they do Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among
Material factor: practice of states or usus States in Accordance with the Charter of the United
Initial factor for determining existence of custom Nations
o Actual behavior of states (usus) Consent
Duration o Instant Custom
Can be either short or long Spontaneous activity of a great number of states supporting a
Not the most important element specific line of action
o Usus and opinion juris in Humanitarian law: THE MARTES CLAUSE
Consistency
Inhabitants and belligerents remain under the protection and
Continuity and repetition
the rule of the principle of the la w of nations as they result
Generality of the practice of states
 from the usages established among civilized people, from the Judicial decisions
laws of humanity, and the dictates of the public conscience Art. 38 of the Statue directs the Court to apply judicial decisions as subsidiary
Puts the laws of humanity and the dictates of public conscience means for determination of the rules of law
on the same level as usages of states or usus o Subject to Art. 59
Suggesting that even withot=ut usus, there can ICJ decisions
emerge a principle of law based on laws of humanity o Have also contributed to the formulation of principles that have
and the dictates of public conscience become intl law

Treaties Teachings of highly qualified writers and Publicists

Determine the rights and duties of the states Common law jurisdiction
o Just as individual rights are determined by contracts o There is reluctance to use them
Binding force comes from the voluntary decision of sovereign states to obligate o More so in the US than in Britain
themselves to a mode of behavior Civil law jurisdiction
All treaties must be observed by the principle of pacta sunt servanda o More ready reference available to writers
Treaties and custom ICJ generally reluctant to refer to writers but are often considered
o If treaty is intended to be declaratory of customary law= may become Publicists
evidence of customary law o Institutions which write on intl law
o Can be complementary International Law Commission
o If treaty comes later than a custom Insititut de Droit International
Treaty prevails International Law Association
Treaty manifests a deliberate choice of the parties and paca Restatement of Foreign Relations Law of the United States
sunt servanda Generally government sponsored: hence, potential for national
o If a later treaty is contrary to a customary rule that has the status bias
of jus congens
Custom will prevail Equity
o Where customs develops after a treaty When accepted, is an instrument whereby conventional or customary law may
Rule not clear be supplemented or modified in order to achieve justice
Should be that the later custom, being the expression of a later Procedural aspect
will, should prevail o A mandate given to a judge to exercise discretion in order to achieve a
determination that is more equitable and fair
General principles of law recognized by civilized nations Different kinds of equity as distinguished
General principles of law recognized by or common to the worlds major legal o Intra legem
systems Within the law
Has reference to principles of municipal common law to the legal systems Law is adapted to the facts of the case
of the world o Praeter legem
Evidence of the fundamental unity of law Beyond the law
Avoids the language civilized nations Used to fill the gaps within the law
o Colonial connotation is now unacceptable in the international o Contra legem
community Refusal to apply the law which is seen as unjust
Supplementary rules of international law
May be found in judicial decisions and the teachings of the most highly Other supplementary evidence
qualified publicists of the various nations UN Resolutions
o Statute refers to as subsidiary means for the determination of rules of o Merely recommendatory
law o But if supported by all states, they are an expression of opinion
juris communis
 o Can also be a reflection of what has become customary law Guarantee investments
Soft law
o Non-treaty agreements Different kinds of treaties
o Intl agreements not concluded as treaties Multilateral treaties
Not covered by the Vienna Convention on the Law of Treatis o Open to all states of the world
o Sources o Create norms which are the basis for a general rule of law
Administrative rules which guide the practice of states in o Either codification treaties or law-making treaties or both
relation to international organizations Treaties that create a collaborative mechanism
o Often, states prefer non-treaty obligations as a simpler and more o Universal scope
flexible foundation for their future relations o Regional
o Operate through the organs of the different states
CHAPTER 3: THE LAW OF TREATIES Bilateral treaties
o Nature of contractual agreements
*In the absence of an international legislative body, international agreements are a Create shared expectations such as trade agreements of
convenient tool through which states are able to project common expectations various forms
o contract treaties
Law on treaties is found in the 1969 Vienna Convention on the Law of Treaties
The making of treaties
A Convention on the Law of Treaties Between States and International Organizations or
Negotiation
Between International Organization was adopted on March 26, 1986
o Bilateral and multilateral treaties generally originate from the foreign
Definition of treaties ministries
o Done through foreign ministries
Vienna Convention: an international agreement concluded between
o Larger MT are negotiated in diplomatic conferences which are run like
States in written form and governed by international law, whether
embodied in a single instrument or in two or more related a legislative body
instruments and whatever its particular designation Power to negotiate
Generally in written form o Act relating to the conclusion of a treaty by one who has no proper
o There are writers who hold that even an oral agreement can be binding authorization has no legal effect
o Only written agreements that are new, come under the provisions of o Full powers
the Vienna Convention Produces appropriate powers
No particular form is prescribed Appears that the State concerned or from other circumstances
that their intention was to consider that person as representing
Qatar vs Bahrain: exchange of note between 2 heads of state was considered
the State for such purpose and to dispense with full powers
an intl agreement
o Following are considered as representing their State
2 characteristics the Court found which convinced that a binding obligation had
Heads of State, Heads of Government and Ministers for Foreign
been incurred:
Affairs
o Commitment was very specific
For the purpose of performing all acts relating to the
o Clear intent to be bound
conclusion of a treaty
Heads of diplomatic missions
Function of treaties
Source of intl law For the purpose of adopting the text of a treaty
between the accrediting State and the State to which
Serve as the charter of intl organizations
they are accredited
Used to transfer territory Representatives accredited by States to an international
Regulate commercial relations conference
Settle disputes Or to an intl org
Protect human rights Or one of its organs
 For the purpose of adopting the text of a treaty in that
conference, organization or organ
Authentication of text
o Conclusion of negotiations
Signing of the document: signature=authentication
o Adoption of text
Takes place by the consent of all the States participating in its
drawing except as provided in par 2
Vote of 2/3 of the States present and voting, unless by the
same majority they shall decide to apply a different rule
o Authentication of the text
Established as authentic & definitive
Such procedure as may be provided for in the text or
agreed upon by the State participating in its drawing
up; or
Failing such procedure, by the signature, signature ad
referendum or initialing by the representatives of those
States of the text of the treaty or of the Final Act of a
conference incorporating the text
Consent to be bound
o Signature
Treaty provides that signature shall have binding effect
Otherwise established that the negotiating States were agreed
that signature should have that effect
Intention of the State to give that effect to the signature
appears from the full powers of its representative or was
expressed during the negotiation
Initialing of a text= signature if so agreed
Representative; if confirmed by his State= constitutes full
signature of the treaty
o Exchange of instruments constituting a treaty
Instruments provide that their exchange shall have that effect
Otherwise established that those States were agreed that the
exchange should have that effect
o Ratification
Treaty provides for such consent to be expressed by means of
rat
Otherwise established
Rep of the State has signed the treaty subj to ratification
Intention of the State to sign the treaty subj to rat appears
from the full powers of its rep or expressed during nego
o Acceptance
Similar to ratification
o Approval
o By any other means if so agreed
Exchange bet the contracting States
Deposit with depositary
Notification to the contracting States od to the depositary, if so
agreed
Accession to a treaty
o Expressed by that State by means of accession
o Otherwise established that the negotiating States were agreed that
such consent may be expressed by that State by means of accession
o All parties have subsequently agreed that such consent may be
expressed by that State by accession
Reservations
o A unilateral statement, however phrased or named, made by a
State, when signing, ratifying, accepting or 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 that State
o Formulation of reservations
State may formulate a reservation UNLESS
Prohibited by treaty
Treaty provides only specified reservations
Cases not failing under a and b ^
Reservation is incompatible with the object and
purpose of the treaty
o Acceptance of and objection to reservations
Reservations expressly authorized
Does not require any subsequent acceptance by the
other contracting States
o Unless provided
When it appears from the limited number of the negotiating
States and the object and purpose of a treaty that the
application of the treaty in its entirety between all the parties
is an essential condition of the consent of each one to be
bound by the treaty
Requires acceptance by all the parties
Constituent instrument of an intl org & unless provided
Requires acceptance of the competent organ of that
org
In cases not falling under the preceding paragraphs & unless
the treaty otherwise provides
Acceptance by another contracting State of a
reservation constitutes the reserving State a party to
the treaty in relation to that other State if or when the
treaty is in force for those States;
An objection by another contracting State to a
reservation does not preclude the entry into force of
 the treaty as between the objecting and reserving
States unless a contrary intention is definitely
expressed by the objecting State;
An act expressing a States consent to be bound by the
treaty and containing a reservation is effective as soon
as at least one other contracting State has accepted
the reservation.
Reservation is considered to have been accepted by a
State
If it shall have raised no objection to the reservation by
the end of a period of twelve months after it was
notified of the reservation or
By the date on which it expressed its consent to be
bound by the treaty, whichever is later
o Legal effects of reservations and of objections to reservations:
Modifies for the reserving State in its relations with that other
party the provisions of the treaty to which the reservation
relates to the extent of the reservation; and
Modifies those provisions to the same extent for that other
party in its relations with the reserving State
The reservation does not modify the provisions of the treaty for
the other parties to the treaty inter se
When a State objecting to a reservation has not opposed the
entry into force of the treaty between itself and the reserving
State, the provisions to which the reservation relates do not
apply as between the two States to the extent of the
reservation.
o Withdrawal of reservations and of objections to reservations:
Unless the treaty otherwise provides, a reservation may be
withdrawn at any time and the consent of a State which has
accepted the reservation is not required for its withdrawal.
Unless the treaty otherwise provides, an objection to a
reservation may be withdrawn at any time.
Unless the treaty otherwise provides, or it is otherwise agreed:
The withdrawal of a reservation becomes operative in
relation to another contracting State only when notice
of it has been received by that State;
The withdrawal of an objection to a reservation
becomes operative only when notice of it has been
received by the State which formulated the
reservation.
o Procedure regarding reservations:
A reservation, an express acceptance of a reservation and an
objection to a reservation must be formulated in writing and
communicated to the contracting States and other States
entitled to become parties to the treaty.
If formulated when signing the treaty subject to ratification,
acceptance or approval, a reservation must be formally
confirmed by the reserving State when expressing its consent
to be bound by the treaty. In such a case the reservation shall
be considered as having been made on the date of its
confirmation.
An express acceptance of, or an objection to, a reservation
made previously to confirmation of the reservation does not
itself require confirmation.
The withdrawal of a reservation or of an objection to a
reservation must be formulated in writing.
o Reservations are meant only for multilateral treaties
o The Philippines & the 1982 Convention on the Law of the Sea
reservations:
The signing of the Convention by the Government of the
Republic of the Philippines shall not in any manner impair or
prejudice the sovereign rights of the Republic of the Philippines
under and arising from the Constitution of the Philippines;
Such signing shall not in any manner affect the sovereign
rights of the Republic of the Philippines as successor to the
United States of America, under and arising out of the Treaty of
Paris between Spain and the United States of America of
December 10, 1988, and the Treaty of Washington between the
United States of America and Great Britain of January 2,1930;
Such signing shall not diminish or in any manner affect the
rights and obligations of the Contracting Parties under the
Mutual Defense Treaty between the Philippines and the United
States of America of August 30,1951, and its related
interpretative instruments; nor those under any pertinent
bilateral or multilateral treaty or agreement to which the
Philippines is a party;
The provisions of the Convention on archipelagic passage
through sea lanes do not nullify or impair the sovereignty of
the Philippines as an archipelagic State over the sea lanes and
do not deprive it of authority to enact legislation to protect its
sovereignty, independence, and security;
The concept of archipelagic waters is similar to the concept of
internal waters under the Constitution of the Philippines, and
removes straits connecting these waters with the economic
zone or high sea from the rights of foreign vessels to transit
passage for international navigation
o Reservations in Human Rights Treaties
When an objection is made, it often does not specify a legal
consequence, or sometimes even indicates that the objecting
 party nonetheless does not regard the Covenant as not in
effect as between the parties concerned
Pattern is so unclear that it is not safe to assume that a non-
objecting State thinks that a particular reservation is
acceptable
Because of the special characteristics of the Covenant as a
human rights treaty
it is open to question what effect objections have
between States inter se
However, an objection to a reservation made by States may
provide some guidance to the Committee in its interpretation
as to its compatibility with the object and purpose of the
Covenant
Entry into force of treaties
o On the date agreed upon by the parties
o When no date indicated; when consent has been given
o Rules:
A treaty enters into force in such manner and upon such date
as it may provide or as the negotiating States may agree.
Failing any such provision or agreement, a treaty enters into
force as soon as consent to be bound by the treaty has been
established for all the negotiating States
When the consent of a State to be bound by a treaty is
established on a date after the treaty has come into force, the
treaty enters into force for that State on that date, unless the
treaty otherwise provides.
The provisions of a treaty regulating the authentication of its
text, the establishment of the consent of States to be bound by
the treaty, the manner or date of its entry into force,
reservations, the functions of the depositary and other matters
arising necessarily before the entry into force of the treaty
apply from the time of the adoption of its text.
o Provisional application:
A treaty or a part of a treaty is applied provisionally pending its
entry into force if:
The treaty itself so provides
Negotiating States have in some other manner so
agreed.
Unless the treaty otherwise provides or the negotiating States
have otherwise agreed, the provisional application of a treaty
or a part of a treaty with respect to a State shall be terminated
if that State notifies the other States between which the treaty
is being applied provisionally of its intention not to become a
party to the treaty.
Application of treaties
o Pacta sunt servanda
Every treaty in force is binding upon the parties to it and must
be performed by them in good faith
o Party may not invoke the provision of its internal law as justification for
its failure to perform a treaty
Interpretation of treaties
o Article 31 contains the rules for the interpretation of treaties:
o A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.
o The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
Any agreement relating to the treaty which was made between
all the parties in connection with the conclusion of the treaty;
Any instrument which was made by one or more parties in
connection with the conclusion of the treaty and accepted by
the other parties as an instrument related to the treaty.
o There shall be taken into account, together with the context:
Any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions;
Any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its
interpretation;
Any relevant rules of international law applicable in the
relations between the parties.
A special meaning shall be given to a term if it is established
that the parties so intended.
Where there are ambiguities in the meaning of a treaty, resort
may be made to supplementary sources. Articles 32 and 33 are
relevant:
o Article 32. Supplementary means of interpretation.
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty and
the circumstances of its conclusion, in order to confirm the
meaning resulting from the application of Article 31, or to
determine the meaning when the interpretation according to
Article 31:
Leaves the meaning ambiguous or obscure; or
Leads to a result which is manifestly absurd or unreasonable.
o Article 33. Interpretation of treaties authenticated in two or
more languages:
When a treaty has been authenticated in two or more
languages, the textis equally authoritative in each language,
unless the treaty provides or the parties agree that, in case of
divergence, a particular text shall prevail.
A version of the treaty in a language other than one of those in
which the text was authenticated shall be considered an
 authentic text only if the treaty so provides or the parties so
agree.
The terms of the treaty are presumed to have the same
meaning in each authentic text.
Except where a particular text prevails in accordance with
paragraph 1, when a comparison of the authentic texts
discloses a difference of meaning which the application of
Articles 31 and 32 does not remove, the meaning which best
reconciles the texts, having regard to the object and purpose of
the treaty, shall be adopted.
In case there is conflict among official texts, the language
that is agreed by the parties as authoritative is followed.
Invalidity of Treaties
Error of fact
Fraud
Corruption or duress
Error
If error relates to a fact or situation 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 by the treaty
Shall not apply if State contributed b y its own conduct to the error
Error relating only to the wording does not affect validity
Fraud
If State has been induced to conclude a treaty by fraudulent conduct of
another negotiating State
o State may invoke the fraud as invalidating its consent to be bound by
the treaty
Corruption of a representative of a State
State may invoke such corruption
Coercion of a representative of a State
Expression of States consent= No legal effect
Coercion by a State by the threat or use of force
Treaty is void
Treaties conflicting with a peremptory norm of general international law (jus cogens)
Treaty is void
May only be modified by a subsequent norm of general international law
having the same character
Rules considered to be jus cogens
o A treaty contemplating an unlawful use of force contrary to the
provisions of the Charter;
o A treaty contemplating the performance of any other act criminal
under international law;
o A treaty contemplating or conniving towards the commission of acts
such as trade in slaves, piracy, or genocide
State can lose the right to assert the invalidity of a treaty
o Loss of a right to invoke a ground for invalidating, terminating,
withdrawing from or suspending the operation of a treaty:
A State may no longer invoke a ground for invalidating,
terminating, withdrawing from or suspending the operation of a
treaty under Articles 46 to 50 or Articles 60 and 62 if, after
becoming aware of the facts:
it shall have expressly agreed that the treaty is valid or
remains in force or continues in operation, as the case
may be; or
A treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general
international law.
For the purposes of the present Convention, a peremptory
norm of general international law is 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.
It must by reason of its conduct be considered as having
acquiesced in the validity of the treaty or in its maintenance in
force or in operation, as the case may be.
A state, moreover, with limited exception, may not plead its
municipal law as a ground for invalidating a treaty that has
been entered.
o Article 46. Provisions of internal law regarding competence to conclude
treaties:
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.
A violation is manifest if it would be objectively evident to any
State conducting itself in the matter in accordance with normal
practice and in good faith.
o Article 47. Specific restrictions on authority to express the consent of a
State:
If the authority of a representative to express the consent of a
State to be bound by a particular treaty has been made subject
to a specific restriction, his omission to observe that restriction
may not be invoked as invalidating the consent expressed by
 him unless the restriction was notified to the other negotiating
States prior to his expressing such consent.
Article 47 is an example of manifest violation.
Amendment and Modification of Treaties.
A distinction is made between amendment and modification of a treaty. Amendment is
a formal revision done with the participation, at least in its initial stage, by all the
parties to the treaty. Modification, on the other hand, involves only some of the parties.
The general rule on amendments, found in Article 39, is that a treaty may be
amended by agreement of the parties. The procedure that is followed is the same as
that for the formation of treaties.
The process is simple enough with regard to bilateral treaties. In recognition of the fact
that it is not easy to obtain the consent of all in multilateral treaties, Article 40
provides for the possibility of amendments which will affect only some states but only
after all parties have been given the opportunity to consider the proposed
amendments. Article 41, for its part, allows for modification of a treaty by two or more
of the parties.
Amendment
Article 40. Amendment of multilateral treaties:
1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall
be governed by the following paragraphs.
2. A ny proposal to amend a multilateral treaty as between all the parties must be
notified to all the contracting States, each one of which shall have the right to take
part in:
(a) the decision as to the action to be taken in regard to such proposal; (b) the
negotiation and conclusion of any agreement for the amendment of the treaty.
3. Every State entitled to become a party to the treaty shall also be entitled to become
a party to the treaty as amended.
4. The amending agreement does not bind any State already a party to the treaty
which does not become a party to the amending agreement; Article 30, paragraph
4(b), applies in relation to such State.
5. Any State which becomes a party to the treaty after the entry into force of the
amending agreement shall, failing an expression of a different intention by that State:
(a) be considered as a party to the treaty as amended; and (b) be considered as a
party to the unamended treaty in relation to any party to the treaty not bound by the
amending agreement.
Modification
Article 41. Agreements to modify multilateral treaties between certain of the parties
only
1. Two or more of the parties to a multilateral treaty may conclude an agreement to
modify the treaty as between themselves alone if:
(a) the possibility of such a modification is provided for by the treaty ; or (b) the
modification in question is not prohibited by the treaty and:
(i) does not affect the enjoyment by the other parties of their rights under the treaty or
the performance of their obligations; (ii) does not relate to a provision, derogation from
which is incompatible with the effective execution of the object and purpose of the
treaty as a whole.
2. Unles s in a case falling under paragraph 1(a) the treatyotherwise provides, the
parties in question shall notify the other parties of their intention to conclude the
agreement and of the
modification to the treaty for which it provides.
Termination of Treaties.
A treaty may be terminated or suspended according to the terms of the treaty or with
the consent of the parties. A treaty with a definite period may also expire. It may also
end when the purpose for the treaty has already been achieved. But a mere change of
government or severance of diplomatic relations does not terminate or suspend a
treaty.
Three other important modes of terminating a treaty are material breach, impossibility
of performance and change of fundamental conditions (rebus sic stantibus).
Material breach
Article 60. Termination or suspension of the operation of a treaty as a consequence of
its breach:
1. A material breach of a bilateral treaty by one of the parties entitles the other to
invoke the breach as a ground for terminating the treaty or suspending its operation in
whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other
parties by unanimous agreement to suspend the operation of the treaty in whole or in
part or to terminate it either:
(i) in the relations between themselves and the defaulting State, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for suspending the
operation of the treaty in whole or in part in the relations between itself and the
defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground for
suspending the operation of the treaty in whole or in part with respect to itself if the
treaty is of such a character that a material breach of its provisions by one party
radically changes the position of every party with respect to the further performance of
its obligations under the treaty.
3. A material breach of a treaty, for the purposes of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or
purpose of the treaty.
4. The foregoing paragraphs are without prejudice to any provision in the treaty
applicable in the event of a breach.
5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human
person contained in treaties of a humanitarian character, in particular to provisions
prohibiting any form of reprisals against persons protected by such treaties.
Supervening impossibility of performance
Article 61. Supervening impossibility of performance:
1. A party may invoke the impossibility of performing a treaty as a ground for
terminating or withdrawing from it if the impossibility results from the permanent
disappearance or destruction of an object indispensable for the execution of the treaty.
If the impossibility is temporary, it may be invoked only as a ground for suspending the
operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground for
terminating, withdrawing from or suspending the operation of a treaty if the
impossibility is the result of a breach by that party either of an obligation under the
treaty or of any other international obligation owed to any other party to the treaty.
Rebus sic stantibus
Article 62. Fundamental change of circumstances:
1. A fundamental change of circumstances which has oc- curred with regard to those
existing at the time of the conclusion of a treaty, and which was not foreseen by the
parties, may not be invoked as a ground for terminating or withdrawing from the treaty
unless:
(a) the existence of those circumstances constituted an essential basis of the consent
of the parties to be bound by the treaty; and (b) the effect of the change is radically to
transform the extent of obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for
terminating or withdrawing from a treaty:
(a) if the treaty establishes a boundary; or (b) if the fundamental change is the result
of a breach by the party invoking it either of an obligation under the treaty or of any
other international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of
circumstances as a ground for terminating or withdrawing from a treaty it may also
invoke the change as a ground for suspending the operation of the treaty.
Article 62 is a codification of the common law principle of rebus sic stantibus. But the
modem approach to it is restrictive. As the ICJ said in the Fisheries Jurisdiction case (ICJ
Reports 1973),
international law admits that a fundamental change in the circumstances which
determined the parties to accept a treaty, if it has 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.
But the Court also added that the changes must have increased the burden of the
obligations to be executed to the extent of rendering performance something
essentially different from the original intention.
The following three cases illustrate how difficult it is to establish causes for the
termination of treaties:
Procedure for the Termination of Treaties
Article 65. Procedure to be followed with respect to invalidity, termination, withdrawal
from or suspension of the operation of a treaty
1. A party which, under the provisions of the present Convention, invokes either a
defect in its consent to be bound by a treaty or a ground for impeaching the validity of
a treaty, terminating it, withdrawing from it or suspending its operation, must notify
the other parties of its claim. The notification shall indicate the measure proposed to
be taken with respect to the treaty and the reasons therefor.
2. If, after the expiry of a period which, except in cases of special urgency, shall not be
less than three months after the receipt of the notification, no party has raised any
objection, the party making the notification may carry out in the manner provided in
Article 67 the measure which it has proposed.
3. If, however, objection has been raised by any other party, the parties shall seek a
solution through the means indicated in Article 33 of the Charter of the United Nations.
4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the
parties under any provisions in force binding the parties with regard to the settlement
of disputes.
5. Without prejudice to Article 45, the fact that a State has not previously made the
notification prescribed in paragraph 1 shall not prevent it from making such notification
in answer to another party claiming performance of the treaty or alleging its violation.
Article 66. Procedures for judicial settlement, arbitration and conciliation:
If, under paragraph 3 of Article 65, no solution has been reached within a period of 12
months following the date on which the objection was raised, the following procedures
shall be followed:
(a) any one of the parties to a dispute concerning the application or the interpretation
of Article 53 or 64 may, by a written application, submit it to the International Court of
Justice for a decision unless the parties by common consent agree to submit the
dispute to arbitration;
(b) any one of the parties to a dispute concerning the application or the interpretation
of any of the other articles in Part V of the present Convention may set in motion the
procedure specified in the Annex to the Convention by submitting a request to that
effect to the Secretary-General of the United Nations.
Article 67. Instruments for declaring invalid, terminating, withdrawing from or
suspending the operation of a treaty
1. The notification provided for under Article 65, paragraph 1 must be made in writing.
2. Any act declaring invalid, terminating, withdrawing from or suspending the
operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of
Article 65 shall be carried out through an instrument communicated to the other
parties. If the instrument is not signed by the Head of State, Head of Government or
Minister for Foreign Affairs, the representative of the State communicating it may be
called upon to produce full powers.
Article 68. Revocation of notifications and instruments provided for in Articles 65 and
67:
A notification or instrument provided for in Article 65 or 67 may be revoked at any time
before it takes effect.
Authority to Terminate
While the Vienna Convention enumerates those who have the capacity to enter into
treaties, it does not say who may terminate a treaty. Logically, however, the authority
to terminate should also belong to the one who has the authority to enter into the
treaty. In the Philippines, however, as in the United States, the authority to conclude
treaties is shared between the Senate and the President. Can the President unilaterally
terminate a treaty? Goldwater v. Carter,6 discussed this question relative to President
Carters termination of the defense treaty with Taiwan. No decision was reached except
to say that the matter was not yet ripe for judicial review: The Judicial Branch should Intl law and municipal law are essentially different from each other
not decide issues affecting the allocation of power between the President and Congress When municipal law and intl law conflict, municipal law must prevail
until the political branches reach a constitutional impasse. Otherwise, we would
encourage small groups or even individual MUNICIPAL LAW INTERNATIONAL LAW
Source Product of legal custom or of Treaties and custom grown among
Members of Congress to seek judicial resolution of issues before the normal political legislation states
process has the opportunity to resolve the conflict. Relations Relations between individual Relation between states
regulated persons under the state
Succession to treaties. Substance Law of the sovereign over Law between sovereign states
When one state ceases to exist and is succeeded by another on the same territory, the individuals
question arises whether the new state is bound by the commitments made by its
predecessor. This subject is taken up by the 1978 Vienna Convention on the
Succession of States with Respect to Treaties which entered into force on November
MONISM
6,1996.
Intl law and domestic law belong to only one system of law
The Convention follows the clean slate rule. Article 16 says: A newly independent 2 monist theories
State is not bound to maintain in force, or to become a party to, any treaty by reason o One theory holds that municipal law subsumes and is superior to
only of the fact that at the date of the succession of States the treaty was in force in international law
respect of the territory to which the succession of States relates. But a new state may o Second theory holds that international is superior to domestic lawjj
agree to be bound by the treaties made by its predecessor.
MUNICIPAL LAW IN INTERNATIONAL LAW
The clean slate" rule, however, does not apply to treaties affecting boundary regimes. Prevailing practice accepts dualism
Art. 27 of Vienna Convention says A party may not invoke the provisions
Article 11. Boundary regimes of its internal law as justification for its failure to perform a treaty
A succession of States does not as such affect: (a) a boundary established by a treaty ; Art. 13 of the Declaration of Rights & Duties States adopted by the Intl Law
or (b) obligations and rights established by a treaty and relating to the regime of a Commission provides: Every State has the duty to carry out in good
boundary. faith its obligations arising from treaties and other sources of intl
law, and it may not invoke provisions in its constitution or its laws as
Article 12. Other territorial regimes an excuse for failure to perform its duty
1. A succession of States does not as such affect: (a) obligations relating to the use of o A STATE WHICH HAS VIOLATED A PROVISION OF INTL LAW
any territory, or to restrictions upon its use, established by a treaty for the benefit of CANNOT JUSTIFY ITSLEF BY RECOURSE TO ITS DOMESTIC LAW
any territory of a foreign State and considered as attaching to the territories in o A STATE WHICH HAS ENTERED INTO AN INTERNATIONAL
question; (b) rights established by a treaty for the benefit of any territory and relating AGREEMENT MUST MODIFY ITS LAW TO MAKE IT CONFORM TO
to the use, or to restrictions upon the use, of any territory of a foreign State and THE AGREEMENT
considered as attaching to the territories in question.
2. A succession of States does not as such affect: (a) obligations relating to the use of INTERNATIONAL LAW IN DOMESTIC LAW
any territory, or to restrictions upon its use, established by a treaty for the benefit of a Intl law unless it is made part of the domestic system
group of States or of all States and considered as attaching to that territory;(b) o Has not role in the settlement of domestic conflicts
rightsestablishedbyatreatyforthebenefitofagroupofStatesor of all States and relating to
How int law becomes part of domestic law
the use of any territory, or to restrictions upon its use, and considered as attaching to
o Doctrine of Transformation
that territory.
3. The provisions of the present article do not apply to treaty obligations of the Must be expressly and specifically transformed into domestic
predecessor State providing for the establishment of foreign military bases on the law
territory to which the succession of States relates. Through appropriate constitutional machinery such as the act
CHAPTER 4: INTERNATIONAL AND MUNICIPAL LAW of Congress
Treaties do not become part of the law of a state unless
DUALISM it is consented by the state
o Doctrine of Incorporation
 Adopted in its full extent by the common law
What does the Philippines follow?
o Treaties & International law: Transformation
o Customary law & treaties which have become part of
customary law: Incorporation

CONFLICT BETWEEN IL AND DL: INTL RULE

Before an Intl tribunal, a state may not plead its own law as an excuse for
failure to comply with international law
o EXCEPTION:
Violation was manifest and concerned a rule of its
internal law of fundamental importance

CONFLICT BETWEEN IL AND DL: DOMESTIC RULE

Domestic courts are bound to apply local law
o Courts are generally able to give domestic law a construction which
does not conflict with intl law
Should conflict arise
o Constitution recognizes the power of the SC to declare a treaty
unconstitutional
o Dualist theory accepts the unconstitutionality of a treaty is purely a
domestic matter
Municipal rule for setting a conflict between int agreement and legislation
o US
Treaties and statutes are equal in rank
Earlier treaty and a later law; later one prevails

CHAPTER 5: SUBJECTS OF INTERNATIONAL LAW: STATES

SUBJECTS OF INTERNATIONAL LAW

Entities endowed with rights and obligations in the international order
o Possessing the capacity to take certain kinds of action on the
international plane
 THOSE WHO HAVE INTERNATIONAL PERSONALITY o Does not necessarily cease to be a state even if all its territory
o Actors in the international legal system and are distinct from objects of has been occupied by a foreign power
international law Or if it has temporarily lost control
Objects of international law: those who indirectly have rights
under or are beneficiaries of international law through subjects GOVERNMENT
of international law That institution or aggregate of institutions by which an independent society
States: remain the predominant actors; enjoy the fullest personality in makes an caries out those rules of action
international law o Which are necessary to enable men to live in a social state
o Or which are imposed upon the people forming that society
Reparations Case o By those who possess the power or authority of prescribing them
Subjects of law in any legal system not necessarily identical in their National government
nature o Has legal personality
Nature depends upon the needs of the community o Internationally responsible for the actions of other agencies and
Development of international law has been influenced by the instrumentalities of the state
requirements of international life and prerogative increase in the Temporary absence of government does not terminate existence of a state
collective activities of States
SOVEREIGNTY
STATES: COMMENCEMENT OF THEIR EXISTENCE INDEPENDENCE FROM OUTSIDE CONTROL
Montevido Convention of 1993: The state as a person of international Montevideo convention: Capacity to enter into relations with other States
law should possess the ff qualifications: o Dependent on recognition
o Permanent population An entity may possess all the elements of a state but if states do not extend
o Defined territory recognition to it
o Government o Entity would not be able to establish relations with those
o Capacity to enter into relations with other States states
Definition of the concept of state:
o A community of persons more or less numerous SELF-DETERMINATION
o Permanently occupying a definite portion of territory Related to sovereignty
o Independent of external control Freely determine political status and freely pursue economic, social and
o Possessing and organized government cultural development
o To which the great body of inhabitants render habitual obedience Levels of claim to self-determination
o Establishment of new state
PEOPLE OR POPULATION Claim by a group within an established state to break away and
Community of persons sufficient in number and capable of maintaining form a new entity
permanent existence of the community o Claims to be free from external coercion
o Held together by a common bond of law Claim to overthrow effective rules and establish new govt
No legal consequence if they possess diversity Assertion of the right to revolution
No minimum population required Claim of people to be given autonomy
Means to give effect self-determination
o Resolutions of support for demands
TERRITORY o Sanctions for offenses against self-determination
Definite territory over which an entity exercises permanent sovereignty o Helping in ascertaining the will of the people
Restatement on the Foreign Relations Law of the US o Giving the rights of participation in international for a
o An entity may satisfy statehood even if its boundaries are o Inquiries and reports
disputed o Formulation of criteria whether self government exists
o Technical assistance
 IL has not recognized a right of secession from a legitimately existing state
RECOGNITION OF STATES
Declaratory theory
o Recognition declaratory
o Being a state depends upon its possession of the required elements
Constitutive theory
o Recognition is what makes a state
What makes a state a state and confers legal personality on
entity
o States are under no obligation to enter into bilateral relations
o But states may decide to recognize an entity as a state even if it does
not have all the elements of a state found in the Montevideo
Convention
RECOGNITION OF GOVERNMENT
Act of acknowledging the capacity of an entity to exercise powers of
government of a state
If change in government in an existing state comes about through ordinary
constitutional procedure, recognition by others comes as a matter of course
2 cases involving recognition of government
Tinoco Arbitration (Great Britain v. Costa Rica)
Government of Costa Rica, under President Alfredo Gonzales: overthrown by
Federico Tenneco
o Tennecos government concluded certain contracts with British
corporations
Tenneco retired and left country
Old constitution was restored: Law of Nullities was passed; annulling contracts
concluded during Tenneco regime
GB made claims on the basis of the injuries done caused by the annulments
Many leading powers refused to recognize the Tinoco government
Non recognition by other nations is usually appropriate evidence that it has not
attained the independence and control
But when recognition of a govt is by such nations determined by inquiry, not
into its de facto sovereignty but into its illegitimacy, their non-recognition loses
something of evidential weight
Costa Rica: Tinoco government cannot be considered de facto government bec
it was not established and maintained according with the constitution
o To hold that a govt does not become a de facto govt would be to hold
that w/in the rules of IL a revolution contrary to the fundamental law of
the existing govt cannot establish a govt
Not true
Costa Rica: Great Britain, by her failure to recognize the Tinoco govt is
estopped to urge claims of her subjects dependent upon the acts and
contracts of the Tinoco govt
Great Britain: Tinoco govt; de facto govt
o Could create rights
Upright v. Mercury Business Machines Co.
Breitel sues as the assignee of a trade acceptance drawn on and accepted by
defendant in payment of business typrewriters sold and delivered to it by a
foreign corporation
o Trade acceptance in the amt of $27, 307.45
o Was assigned to plaintiff after dishonor by defendant
Issue: legal sufficiency of the affirmative defense
o Alleges that the foreign corporation is the creature of the East German
Government
Not recognized by the US
o Such corporation is an enterprise controlled by and that it is an arm
and instrument of such government
Defense sustained
A foreign govt, although not recognized by the political alarm may have de
facto existence: juridically recognizable
Acts of such de facto existence may affect private rights and obligations
arising as result of activity or with persons or corporations within
CONSEQUENCES OF RECOGNITION OR NON-RECOGNITION
Recognized
o Gains increased prestige & stability
o Doors of funding agencies are opened
o Loans are facilitated
o Access to foreign countries are gained
o Military and financial assistance come within reach
Absence of formal recognition bars entity from all these benefits ot at least
access to them may be suspended
Recognition of government involves highly political judgment
Admission of a government to the UN does not mean recognition by
all members; only to the extent of the activities of the organization
Recognition of government does not mean approval of the recognized
governments methods
Termination of recognition
o When another regime is recognized
o For as long as a state continues to meet the qualifications of
statehood; its states as a states cannot be derecognized
SUCCESSION OF STATES
 When state succeeds another state with respect to particular territory, the
capacities, rights and duties of the predecessor state with respect to that
territory terminate and are assumed by the successor state
As to state property, title passes as follows:
o (a) where part of the territory of a state becomes territory of another
state, property of the predecessor state located in that territory passes
to the successor state;
o (b) where a state is absorbed by another state, property of the
absorbed state, wherever located, passes to the absorbing state;
o (c) where part of a state becomes a separate state, property of the
predecessor state located in the territory of the new state passes to
the new state.
With respect to public debts, subject again to agreement between the states
concerned, responsibility for the public debt of the predecessor, and rights and
obligations under its contracts, remain with the predecessor state, except as
follows:
o (a) where part of the territory of a state becomes territory of another
state, local public debt, and the rights and obligations of the
predecessor state under contracts relating to that territory, are
transferred to the successor state;
o (b) where a state is absorbed by another state, the public debt, and
rights and obligations under contracts of the absorbed state, past to
the absorbing state;
o (c) where part of a state becomes a separate state, local public debt,
and rights and obligations of the predecessor state under contracts
relating to the territory of the new state, pass to the new state.
With respect to treaties (already touched on in the Chapter on Treaties), the
Vienna Convention is followed. The rules are:
o (1) When part of the territory of a state becomes territory of another
state, the international agreements of the predecessor state cease to
have effect in respect of the territory and the international agreements
of the successor state come into force there. This reflects the moving
treaty rule or moving boundaries rule. If X has a treaty with Y, and
part of Y is transferred to Z, X may seek relief from treaty obligation
under rebus sic stantibus.
o (2) When a state is absorbed by another state, the inter- national
agreements of the absorbed state are terminated and the international
agreements of the absorbing state become applicable to the territory
of the absorbed state. Third states may appeal to rebus sic stantibus.
o (3) When a part of a state becomes a new state, the new state does
not succeed to the international agreements to which the predecessor
state was party, unless, expressly or by implication, it accepts such
agreements and the other party or parties thereto agree or acquiesce.
This applies the clean slate theory.
o (4) Pre-existing boundary and other territorial agreements continue to
be binding notwithstanding. This is the uti possidetis rule.
FUNDAMENTAL RIGHTS OF STATES
INDEPENDENCE
Capacity of a state to provide for its own well-being and development free from
the domination of other states
o Providing it does not impair or violate their legitimate rights
Right to exercise within its portion of the globe, to the exclusion of others, the
functions of a state
Following from independence are other rights such as
o Jurisdiction over its territory and permanent population
o Right to self defense
o Right to legation
Involves also the duty to interfere in the internal affairs of other states
EQUALITY
Equality of legal rights irrespective of the size or power of the state
General Assembly: one state, one vote
PEACEFUL CO-EXISTENCE
Has been developing over the past 20 years
Mutual respect for each others territorial integrity and sovereignty
Mutual non-aggression, non interference in each others affairs and the
principle of equality
SOME INCOMPLETE SUBJECTS
Protectorates
o Dependent states which control over their internal affairs
o But whose external affairs are controlled by another states
o Autonomous states, vassal states, semi sovereign, independent
Federal states
o A union of previously autonomous entities
o May involve placing full authority in the a central organ while another
might lodge authority in the individual entities to the detriment of the
central organ
o Central organ will have personality in the IL
But extent of intl personality of the component entities can be
a problem
Mandated and Trust Territories
o Territories placed by the League of Nations under one or other of the
victorious allies of WW1
o Mandate system replaced by the trusteeship system after WW2

CHAPTER 6: OTHER SUBJECTS OF INTERNATIONAL LAW
INTERNATIONAL ORGANIZATION
Establishment, international personality, immunity
An organization that is set up by treaty among two or more states
Different from NGO
o Set up by private persons
Constituent document of intl org= treaty
o Only state members are members of intl orgs
Advisory opinion of the Use of Nuclear Weapons
o Constituent instruments of intl orgs are multilateral treaties
Which the well-established rules of treaty interpretation apply
o They are also treaties of a particular type
Object is to create new subjects of law endowed with a certain
autonomy
Which the parties entrust the task of realizing common
goals
Can raise specific problems of interpretation, owing to their
character which is conventional and at the same time
institutional
International personality: Reparations Case (ICJ Advisory Opinion, 1949)
o In the event of an agent of the UN in the performance of his duties
suffering injury in circumstances involving the responsibility of a State
Has the UN the capacity to bring an international claim
against the responsible de jure or de facto government
with a view to obtaining the reparation caused to the
UN and to the victim or to persons entitled through
him?
o Court: In discharging its functions, the Organization may find it
necessary to entrust its agents with important missions to be
performed in disturbed parts of the world
These agents must be ensured of effective protection
Organization has the capacity to exercise functional protection
in respect of its agents
o What is the situation when the claim is brought against a State which
is not a Member of the Organization?
Members of the UN created an entity possessing objective
international personality and not merely recognized by them
alone
In case of other organizations, the charter itself might
specifically endow it with international personality
If it does not, possession of intl personality may be
implied from the functions of the organization
Powers and privileges not like those of states
o Powers and privileges limited by constituent instrument that
created them
o Advisory Opinion on the Use of Nuclear Weapon
Intl orgs are subjects of intl law which do not possess a
general competence
Governed by the principle of specialty
Invested by the States which create them with powers
The limits of which are a function of the common
interests whose promotion those States entrust to
them
Powers conferred to IO: subject of an express statement in
their constituent instruments
Generally accepted that IOs can exercise implied powers
IMMUNITIES
Basis: not sovereignty but the need for the effective exercise of their
functions
Art 105 of the UN Charter
o Org shall enjoy in the territory of its members privileges and
immunities necessary for the fulfillment of its purposes
o Rep of the Members of the UN and officials of the Org shall enjoy such
privileges and immunities necessary for the independent exercise of
their functions in connection with the Org
o General Assembly may make recommendations with a view to
determining the details of the application of paragraphs 1 and 2 or
propose conventions to the Members of the United Nations
No common law doctrine recognizing the immunity of international orgs
Immunities come from the conventional instrument creating them a clear
example of the grant of immunity is the 1946 General Convention on
the Privileges and Immunities of the UN
 Kapisanan ng mga Manggagawa vs, The International Rice Research Institute o Take effective collective measures for the prevention and removal of
o IRRI was created by a Memorandum of Agreement between Phil Govt threats to the peace
and the Rockefeller and Ford Foundations For the suppression of acts of aggression or other breaches of
Two private organizations peace
Not an Intl Org o Bring about by peaceful means, and in conformity with the principles of
Organized and registered with the SEC justice and intl law, adjustment or settlement of intl disputes or
o By virtue of PD 1620: was granted the status, prerogatives, privileges situations which might lead to a breach of the peace
and immunities of an international organization Develop friendly relations among nations based on respect for the principle of
o Grant of immunity clearly necessitated by their international equal rights and self-determination of peoples
character and respective purposes o Take other appropriate measures to strengthen universal peace
o Objective is to avoid the anger of partiality and interference by the Achieve intl cooperation into solving national problems (economic, social,
host country in internal workings cultural or humanitarian)
o Exercise of jurisdiction by Dep of Labor would defeat the purpose of o Promoting and encouraging respect for human rights
immunity o For fundamental freedoms for all without distinctions as to race, sex,
Shield the affairs of international organizations, in accordance language, or religion
with international practice, from political pressure or control by Be a center for harmonizing the actions of nations in the attainment of these
the host country to the prejudice a member States of the common ends
organization Un enjoined against intervening in matters which are essentially within the
Ensure unhampered performance of their functions domestic jurisdiction
Asian Development Bank International constitutional supremacy clause: In the event of a conflict
o Banks charter is a treaty to which the RP is a party between the obligations of the members of the UN ender the present charter
o DFA vs NLRC: Whether the NLRC could assume jurisdiction over the and their obligations under any other intl agreement, their obligations
case of illegal dismissal against ADP under the present charter shall prevail
Art. 50 of the Charter: Bank shall enjoy immunity from every Principal organs of UN
form of legal process except in cases arising out of or in o General Assembly
connection with the exercise of its powers to borrow o Security Council
money, to guarantee obligations, or to buy and sell or o Economic and Social Council
underwrite the sale of securities o Trusteeship Council
o ADP enjoys legal immunity from legal proves of every form except in o Intl Court of Justice
the specified cases of borrowing and guarantee operations o Secretariat
GENERAL ASSEMBLY
THE UN: STRUCTURE AND POWERS All members are represented
Came into being on Oct. 24, 1945 when the UN Charter came into force o It may discuss any question or any matters within the scope of the
Membership includes almost all the worlds independent nations charter
Important questions
Admission to membership o Decided by 2/3 majority of the members voting and present
Governed by art 4 Other questions
UN can include all other peace-loving states o Require only a majority
o Which accept the obligations contained in the present Charter and in
the judgment of the Org SECURITY COUNCIL
o Are able to carry out these obligations Primary responsibility for the maintenance of intl peace and security
As new independent nations arise, the number of members continue to grow 15 member states
5 permanent (China, France, Russia, UK, US)
Purposes of UN
Others are elected for 2 terms in accordance with equitable geographic
Maintain international peace and security
representation
 Distinguishes between procedural matters and all other matters o SAFEGUARD THE POLITICAL AND ECONOMIC STABILITY OF THE
Council practice is that a decision on whether a matter is procedural requires REGION AGAINST BIG POWER RIVALRY
the concurrence of the permanent members o SERVE AS FORUM FOR THE RESOLUTION OF INTRAREGIONAL
Double veto by the permanent members is possible DIFFERENCES
o Abstention considered veto ASEAN Declaration aims and purposes
o ACCELERATE ECONOMIC GROWTH, SOCIAL PROGRESS AND
ECOSOC CULTURAL DEVELOPMENT IN THE REGION
Has 54 members elected for 3 year terms o PROMOTE REGIONAL PEACE AND STABILITY THROUGH ABIDING
Large number of subsidiary organs RESPECT FOR JUSTICE AND THE RULE OF LAW IN THE
o UN Commission on Human Rights RELATIONSHIP AMONG COUNTRIES IN THE REGION AND
o Commission on the Status of Women ADHERENCE TO THE PRINCIPLES OF THE UN CHARTER
ASEAN Vision 2020
TRUSTEESHIP COUNCIL o Shared vision of ASEN as a concert of Southeast Asian nations, outward
Supervises non-self governing territories looking, living in peace, stability and prosperity, bonded together in
partnership in dynamic and in a community of caring societies
Jurisdiction very limited
ASEAN established comprising 3 pillars
Palau: last entity to be under the council
o ASEAN Security Community
Council suspended operations after Palau became independent
o ASEAN Economic Community
o ASEAN Socio-Cultural Community
SECRETARIAT
Fundamental principles in their relations with one another; as contained in the
Comprises a Secretary General and such staff as the org may require
Treaty of Amity and Cooperation in SEA
SG elected to 5 year term by the General Assembly upon recommendation of
o Mutual respect for the independence, sovereignty, equality, territorial
the Security Council
integrity and national identity of all nations
o Subject to veto power
o Right of every State to lead its national existence free from external
Chief administrator of the organization interference, subversion and coercion
Power to bring attention to the Security Council any matter which in his opinion o Non-interference in the internal affairs of one another
may threaten the maintenance of intl peace and security o Settlement of differences or disputes by peaceful manner
o Renunciation of the threat or use of force
INTERNATIONAL COURT OF JUSTICE o Effective cooperation among themselves
Principal judicial organ of the UN

OTHER AGENCIES
United Nations Educational, Scientific and Cultural Org (UNESCO)
Intl Civil Aviation (ICAO)
World Health Org
Food and Agricultural Org (FAO)
World Bank and the Intl Monetary Fund (IMF)
REGIONAL ORGANIZATIONS: ASEAN
Neither organs nor subsidiary organs of the UN
Autonomous international org having an institutional affiliation with
the UN by concluding agreements with the UN
Created by intl agreements for the purpose of dealing with regional problems
3 main objectives
o PROMOTE ECONOMIC, SOCIAL AND CULTURAL DEVELOPMENT
OF THE REGION THROUGH COOPERATIVE PROGRAMS
INSURGENTS
Protocol II
o First and only intl agreement regulating the conduct of parties in a
non-intl armed conflict
o Art. 1: Armed conflicts which take place in the territory of a High
Contracting Party between its armed forces and dissident armed forces
or other organized armed groups which, under responsible, command,
exercise such control over a part of its territory as to enable them to
carry out sustained and concerted military operations and to
implement this protocol
o Shall apply to situations of internal disturbances
 Such as riots, isolated and sporadic acts of violence and other
acts of a similar nature, as not being armed conflicts
o Sets down requirements for what material field application
Armed dissidents must be under responsible command
They must exercise control over a part of its territory as to
enable them to carry out sustained and concerted military
operations and to implement this protocol
o Insurgent groups which satisfy the material field of application of
Protocol II
Recognized as having belligerent status against the de jure
government
Seen as having treaty making capacity
Common Article 3
o Intl law on armed conflict does not apply to internal conflicts
o Minimum humanitarian protection should also be promulgated to cover
internal conflict
Each of the 4 Geneva Conventions contains a common art. 3
Art. 3. In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race, color,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and
in any place whatsoever with respect to the above- mentioned persons:
(a) violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular hu- miliating and
degrading treatment;
(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court,
affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the
Red Cross, may offer its services to the Parties to the conflict.
Impartial humanitarian body may offer its services to the Parties to the
conflict
Parties should bring into force all or part of the provisions of the
present Convention
Shall not affect the legal status of the parties to the conflict
o Means that the application does not convert the conflict into an
intl one
o Does not preclude the possibility that any participant in the
conflict may be prosecuted by treason
NATIONAL LIBERATION MOVEMENTS
Organized groups fighting in behalf of a whole people for freedom
from colonial powers
Geneva Convention: peoples fighting against colonial domination and alien
occupation and against racist regimes in the exercise of their right to self
determination, as enshrined in the Charter of the United Nations
First arose in Africa then in Asia
Characteristics
o Can be based within the territory which they are seeking to liberate
They might find a base in a friendly country
Control of territory not a necessary factor
Legitimacy comes from their goal: to free themselves from
colonial domination (self determination)
o Goal of controlling a definite territory is necessary for them to be
recognized as international subjects
o Must have an organization capable of coming into contact with other
international organizations
Authority representing a people engaged against a High Contracting Party in
an armed conflict of the type referred to Art. 1
Such declaration shall have in relation to that conflict the following effects
o Conventions and this Protocol are brought into force for the said
authority as a Party to the conflict with immediate effect
o Said authority assumes the same rights and obligations as those which
have been assumed by a High Contracting Party to the Conventions
and this Protocol
o The Conventions and this Protocol are equally binding upon all Parties
to the conflict
INDIVIDUALS
Early development of intl law human beings were exclusively under the control
of states
Intl law: they were objects/ beneficiaries of intl law
With the greater awareness of human rights
o Individuals have now come to be recognized as possessing limited
rights and obligations in international law
Obligations: arising from the regulation of armed conflicts
o Violation can place individuals under criminal responsibility
When individual rights are violated, individuals still rely on the enforcement
power of the states
 o But some treaties have provided for the right of individuals to petition
international bodies alleging that a contracting state has violated some
of their human rights
Antionio Casse:
o Individuals possess intl legal status
o They have few obligations deriving from customary intl law
o Procedural rights inure to the benefit of the individuals
But only toward the group of States that have concluded
treaties
Or intl organizations that have adopted resolutions
o Individuals have a lopsided position in the intl community
o They are associated with all other members of the intl community
They do not possess rights in relation to all members of that
community
o All States are willing to demand of individuals respect for some
fundamental values, while they are less prepared to associate them to
their intl dealings
o Individuals have a limited locus standi in intl law
o Individuals have a limited array of rights and obli
One can speak of a limited lega capacity
CHAPTER 7: TERRITORY: LAND, AIR, OUTER SPACE
TERRITORY
Area over which a state has effective control
Las Palmas case
o Control over territory is of the essence of a state
o Exact boundaries may be uncertain but there should be a definitive
core over which sovereignty is exercised
Acquisition of sovereignty over territory
o Sovereignty over a portion of the surface of the globe is the legal
condition for the inclusion of such portion in the territory of any
particular state
Includes land, maritime areas, airspace and outer space
MODES OF ACQUISITION OF SOVEREIGNTY OVER TERRITORY
Discovery & Occupation
o Occupation is the acquisition of terra nullius
Territory which belonged to no state or which may have been
abandoned by a prior occupant
o Western Sahara case: Whether WS, inhabited was terra nullius
No
WS was inhabited by peoples which, if nomadic, were socially
and politically organized into tribes under chiefs competent to
represent them
o DISCOVERY OF TERRA NULLIUS IS NOT ENOUGH TO ESTABLISH
SOVEREIGNTY; MUST BE ACCOMPANIED BY EFFECTIVE CONTROL
o The Island of Palmas
Island about 2 miles long by of a mile wide
Population of about 750
Of little strategic or economic value
Sits about halfway bet the islands of Mindanao in the
Philippines and Nanusa in the Netherlands Indies
Lenard Wood discovered that the Netherlands also claimed
sovereignty over the island
Agreement was signed bet. US and Netherlands to submit the
dispute to the binding arbitration
Arbitrator: US based its title on discovery; the existence of
sovereignty confirmed by cartographers and authors and a
treaty
Treaty of Munster: Spain and the Netherlands are
themselves parties
American view: unnecessary to establish facts showing the
actual display of sovereignty precisely over Island of Palmas;
maintains that Palmas forms a geographical part of the
Philippine group and in virtue of the principle of contiguity
belongs to the power having the sovereignty of the Philippines
 Islands belong to Netherlands; title of sovereignty acquired by
continuous and peaceful display of state authority during a
long period of time holds good
Prescription
o Requires effective control
o Object is not terra nullius
o Requires length of effective control longer than in occupation
o Might be negated by a demonstrated lack of acquiescence by prior
occupant
Cession
o Sovereignty of Hong Konf
Part of the colony of HK was ceded in perpetuity to Britain
Largest section of the colony was merely held under a lease
that was due to expire in 1997
Joint Declaration was signed: Entire Hong Kong would be given
over to the sovereignty of China
o Treaty of cession which is imposed by a conqueror is invalid
Conquest
o Taking possession of a territory through armed force
o Necessary that the war had ended either by treaty or by resistance
abandonment
o Conqueror must have the intention of acquiring the territory not just
occupying
o Proscribed by The 1970 Declaration of Principles of Intl Law
Concerning Friendly Relations and Cooperation among States
Accretion and Avulsion
o Sovereignty by operation of nature
o Accretion
Gradual increase of territory by action of nature
o Avulsion
Sudden change resulting for instance from the action of a
volcano
Contiguity
o Impossible to show a rule of positive intl law to the effect that islands
outside the territorial waters should belong to a state from the fact that
its territory forms part of the terra firma
Intertemporal Law
o Rules in effect at the time of the acquisition should be applied
AIRSPACE
Each state has exclusive jurisdiction over the air space above its territory
o Consent for transit must be obtained from the subjacent nation
Chicago Convention created the Intl Civil Aviation Organization prescribed the
rules for intl civil aviation
Sovereignty
o Every State has complete and exclusive sovereignty over the airspace
above its territory
Territory
o A State shall be deemed to be the land areas and territorial waters
adjacent thereto under the sovereignty, suzerainty, protection
of such mandated State
Civil and state aircraft
o Applicable only to civil aircraft ands hall not be applicable to state
aircraft
o Military, customs and police services: state aircraft
o No state aircraft shall fly over the territory of another State w/o
authorization by special agreement
o Contracting States undertake that they will have due regard for the
safety of navigation of civil aircraft
Misuse of civil aviation
o Each contracting state agrees not to use civil aviation for any purpose
inconsistent with the aims of this convention
Right of non-scheduled flight
o Each contracting State agrees that all aircraft of the other contracting
States, being aircraft not engaged in scheduled interna-tional air
services shall have the rightto make flights into or in transit nonstop
across its territory and to make stops for non-traffic purposes without
the necessity of obtaining prior permission
o Each contracting State nevertheless reserves the right, for reasons of
safety of flight, to require aircraft desiring to proceed over regions
which are inaccessible or without adequate air navigation facilities to
follow prescribed routes, or to obtain special permission for such
flights.
Such aircraft, if engaged in the carriage of passengers, cargo,
or mail for remuneration or hire on other than scheduled
international air services, shall have the privilege of taking on
or discharging passengers, cargo, or mail, subject to the right
of any State where such embarkation or discharge takes place
to impose such regulations, conditions or limitations as it may
consider desirable.
Schedules air services
 o No scheduled intl air service may be operated over or into the territory
of a contracting State
Except with the special permission of that State
Cabotage
o Each State shall have the right to refuse permission to the aircraft of
other contracting States to take on its territory passengers, mail and
cargo carried for remuneration or hire and destined from another point
within its territory
o States undertake not to enter into any arrangements which specifically
grant any such privilege on an exclusive basis
Chicago convention attempts to provide protection for civilian aircraft
OUTERSPACE
SOVEREIGNTY OVER AIR SPACE EXTENDS ONLY UNTIL WHERE
OUTERSPACE BEGINS
o Where is that?
No definite answer
Answer will eventually come from technological capabilities of
conventional aircraft to reach greater heights
Accepted: outer space, are not susceptible to appropriation by any state
Treaty on the Exploration and Use of Outer Space
o Article I. The exploration and use of outer space, including the moon
and other celestial bodies, shall be carried out for the benefit and
in the interests of all countries, irrespective of their degree of
economic or scientific development, and shall be the province
of all mankind. Outer space, including the moon and other celestial
bodies, shall be free for exploration and use by all States without
discrimination of any kind, on a basis of equality and in accordance
with international law, and there shall be free access to all areas of
celestial bodies. There shall be freedom of scientific
investigation in outer space, including the moon and other
celestial bodies, and States shall facilitate and encourage
international co-operation in such investigation.
o Article 11. Outer space, including the moon and other celestial bodies,
is not subject to national appropriation by claim of sovereignty,
by means of use or occupation, or by any other means.
o Article III. States Parties to the Treaty shall carry on activities in the
exploration and use of outer space, including the moon and
other celestial bodies, in accordance with international law,
including the Charter of the United Nations, in the interest of
maintaining international peace and security and promoting
international co- operation and understanding.
o Article IV. States Parties to the Treaty undertake not to place in
orbit around the Earth any objects carrying nuclear weapons or
any other kinds of weapons of mass destruction, install such
weapons on celestial bodies, or station such weapons in outer
space in any other manner. The Moon and other celestial bodies
shall be used by all States Parties to the Treaty exclusively for peaceful
purposes. The establishment of military bases, installations
and fortifications, the testing of any type of weapons and the
conduct of military maneuvers on celestial bodies shall be
forbidden. The use of military personnel for scientific research or for
any other peaceful purposes shall not be prohibited. The use of any
equipment or facility necessary for peaceful exploration of the Moon
and other celestial bodies shall also not be prohibited.
o Article V. States Parties to the Treaty shall regard astronauts as
envoys of mankind in outer space and shall render to them all
possible assistance in the event of accident, distress, or
emergency landing on the territory of another State Party or
on the high seas. When astronauts make such a landing, they shall
be safely and promptly returned to the State of registry of their space
vehicle. In carrying on activities in outer space and on celestial
bodies, the astronauts of one State Party shall render all
possible assistance to the astronauts of other States Parties.
States Parties to the Treaty shall immediately inform the other States
Parties to the Treaty or the Secretary-General of the United Nations of
any phenomena they discover in outer space, including the Moon and
other celestial bodies, which could constitute a danger to the life or
health of astronauts.