Public International Law (Atty.
Daryl Largo Discussion based on his syllabus)
402 (A.Y. 2017-2018)
Public International Law
Note: Atty. DBL’s method of discussion is to discuss the topic
based on the outline while sometimes straying away and
discussing some related topics that may be discussed further in
the next topics. So, bear with these discussion notes if it may
discuss “strays” to the main heading. Thank you!
Rubric for Graded Oral Recitations:
30% Ability to Comprehend the Question
30% Ability to Spot Legal/ Factual Issues
30% Ability to apply the relevant law and precepts
10% Communication Skills
TOPIC A (INTRODUCTION)
Public International Law is an evolving concept (Meaning of
International Law)
What evidence can you offer to prove this proposition?
Look at the definition itself. In Brierly’s traditional definition,
international law was defined as the body of rules and principles of
action which are binding upon civilized states in their relations with
one another. Then, International law governed only states or
International law was viewed to govern states alone (international
law was regarded as state-centered). When you speak of actors of
international law, they were only referring to state actors.
In Hackworth’s modern definition, it is the branch of public law
which regulated the relations of states and other entities which
have been granted an international personality.
However, in Section 101, Restatement (Third), American Law
Institute of the Foreign Relations Law of the United States
(post-modern definition), international law consists of rules and
principles of general application dealing with the conduct of 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. This definition now includes not only states but
international organizations and even individuals.
Can individuals be subjects of international law?
Yes, but only under certain conditions. For example, when they
exercise their right to self-determination. It is a right which has
already ripened into a customary norm and can be exercised
against states. It may happen that the State where the minority
belongs tends to disregard the unique culture. As a result, this
particular state or government will only pass one set of laws, one
set of legal system, one set of policy and disregarding the unique
culture of these minority groups. It may also happen in times of
armed conflict in the application of the Laws of War (even when
the armed conflict only involves the state itself against its own
nationals in their pursuit of their right to self-determination). This
opens the doors to the Internationalization of Human Rights.
However, the state may also deny this right to self-determination,
upholding their own right to territorial integrity. This right to
territorial integrity is the right of any state to maintain integrity.
What are the two kinds of armed conflict?
1. International armed conflict—apply the rules of war;
when a crime is committed, it is considered an
international crime (e.g. if a combatant kills a non-
combatant, it will amount to a crime of murder. However,
since it is in the international armed conflict, it is
considered an international crime and the jurisdiction is
with the international court)
2. Non-international armed conflict—if the same act of
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killing a non-combatant will not be considered an
international crime;
international- between 2 or more state;
non-international- between regular forces of state and
another organized group within the same state. It must be
an organized group.
Remember, it is not international if there is no third state
involved or another state involved EXCEPT in the case of
an organized armed group exercising the right to self-
organization. An organized armed group which is
recognized and fighting, it may be called a national
liberation movement. A national liberation movement is a
group exercising the right to self-organization
What is a high contracting party to the Geneva convention?
A party to an armed conflict that is required or who is required to
observe the rules of war. If a regular armed force captures a
member of a national liberation movement, the member may only
be treated as a prisoner of war and not an ordinary criminal. In that
context, private individuals may be considered subject of
international law.
What is another example of individuals who may be considered
subjects of international law?
Refugees. They are persons of one state who may be subject to
persecution by reason of race, religion, ethnicity. If that happens,
as part of the reaction of any human being, they would leave the
country. If they leave the country and are waiting to be welcomed
to the state, they are called asylum seekers. If the State agrees
that they are refugees, they may be accepted. The moment the
refugee is accepted; it gives rise to the obligation not to return the
refugee to his state.
How is that principle in the Refugee Law (principle not to return the
refugee to his home state)?
Principle of non-refoulement
Nature of PIL
Why is international law considered a horizontal legal system?
It is horizontal because unlike the command theory of John Austin
for example, we learned in Philo of law, unlike in a positivist
perspective wherein the law is imposed by a higher sovereign, PIL
is more on consensus based rather than command. That is what
Akehurst mentioned in his book. This is based more on consensus
agreed upon by states rather than imposed upon states
Basically, it operates without a higher political authority imposing
such.
Why do you think even in the formulation of PIL, it is considered
problematic?
It is because the states are forced, they constantly pursue their
own interest so it could be that if the law operates against them or
if it is disadvantageous they may not concede to it. In the case of
states trying to come up with an international rule, the problem if it
is based on convention would be precisely the disagreement
between states
Don’t we have for example the UN? Does it not serve as the higher
political authority?
No. It is an international organization that is composed of different
states wherein they come up with convention and agreements to
implement and enforce rules and procedures to govern the
relationship of the states. But it doesn’t serve as higher authority,
it is merely an organization that comprise of the states that agree
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with each other.
Are there any international laws that are not formed by agreement
or through convention?
Yes, there is customary international law. We will talk about CIL
more later.
Is PIL a law?
It depends on the POV you take.
According to Austin’s Command Theory, it cannot be a law as there
is no higher authority which imposes penalties and judgments in
case of infractions. There is also no higher legislature which
commands and no policy-making body imposing rules. Basically,
in international law, there is an absence of the 3 main branches of
government.
However, according to Akehurst, it is a law. At some point, states
are compelled to behave in a certain manner and it is in this
manner, through observance, that international law may be
considered a law. It is then a law between states that are compelled
to obey it by reason of being a party to a treaty or a convention or
because the norm is in the nature of a jus cogens norm.
Why do sovereign states obey international law?
States are understood as organisms and therefore, need to
survive. Various reasons include:
1. Self-preservation (International community perceives
compliance of IL on the basis of natural law. “If I attack
your territory, it is possible that you will retaliate so I will
not do such”)
2. Self-interest (“It is of my best interest that if I obey the
terms and conditions of the treaty, by the time that I will
have to request, I can expect compliance from your end.”
It is of the best interest of the state to comply IL. The state
can have benefits in trade, investment, or political in
exchange)
3. Acculturation (it is part of their culture to easily obey
these norms)
4. Legitimacy (State obey a particular norm because it is
just, right, reasonable, or pragmatic. Even if we talk about
certain policies in our company, there are rules that we
easily obey. It is not because we are compelled to obey it
but sometimes, we obey the law because we feel that it is
a good law or that it is a sensible law)
5. Positivist theory (At least in so far as conventions and
treaties are concerned, states obey them because of
consent. This is otherwise called the consent based
theory. A contracting party to a treaty of course is bound
to obey because it had already consented to the terms
and conditions)
6. Some forms of peaceful enforcement of PIL:
a. Voluntary compliance
b. Force of public opinion
c. Self-help
d. Treaty-based enforcement
How is PIL formed?
(1) Through state practice
- PIL may come into existence as a result of practice
of states couple with the belief that it is practiced
because the norm or conduct is binding upon
states
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- 2 elements:
1. objective element (general state practice)
2. subjective element (opinion juris sive
necessitates)
(2) Through agreement by the states
- PIL may be enacted by agreement of a group of
states. It may be considered a positive law by the
contracting parties
- Through conventions or treaties
Basically, it may be by convention, treaties or practice.
What about opinions of jurists and decisions of courts?
Yes, such as the ICJ but check the sources of law as these are
subsidiary sources.
How is PIL enforced?
Generally, it is difficult to enforce PIL since there is no higher
executive authority to enforce this. No international police.
(1) Through the Doctrine of Self-help (on retorsion and
reprisals)
These are called countermeasures. Retorsion is a
lawful act which is designed to injure the wrongdoing
state. Reprisal is an act which would normally be illegal
but are rendered legal by a prior illegal act committed by
the other state
The use of force is generally not valid but in some
instances, it may be justified.
Note: Contemporary international law does not use
“retorsion or reprisal” anymore. We now call it
countermeasures. There is an emphasis on the
prohibition of the use of force and even the threat of use
of force. IOW, we still have to learn about retorsion and
reprisal but we have to recognize that in contemporary
international law, these are now called countermeasures
The difference between reprisal and self-defense is
that self-defense is when there is a state which declares
war against another and the recipient of such declaration
engages in defensive war. In reprisal, there is no
declaration of war.
History of International Law
Hugo Grotius
He is the “Father of PIL”. He published “On The Law of War and
Peace”. In 1609, he also wrote “Mare Liberum” (The freedom of
the seas). He laid the foundations of international law based on
natural law. He wrote an important document that largely
influenced what is known now as UNCLOS. He conceptualized that
there must be a limit to what can be demarcated to entities but
there must also be an area that is “free-for-all”.
1648- Treaty of Westphalia
What is the Treaty of Westphalia and its contributions to
international law?
Among the important provisions in the treaty were the provisions
recognizing sovereignty of each states, it was then called
monopolization of power within a state, meaning in a given
territory, there should only be one sovereign power so in effect any
act by third states that would affect the exercise of political power
in territory of another would be an intervention or a violation of the
sovereignty of that state. It also gave rise to the principle of co-
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equality of states, precisely no state can interfere or intervene with
the affairs of the other because of the principle of co-equality. So
this treaty of Westphalia introduced us to the concept of
sovereignty of states and co-equality of states.
1789- Birth of the term “international law”
It was Jeremy Bentham who coined the term “international law”
replacing the old, classical term “law of nations”.
1863- Lieber Code
It was created by Abraham Lincoln. It has been considered as the
document that governs the conduct of war. This was because of
the Civil War in the US where the southerners wanted to separate
from the union (which resulted to Southern vs Northeren states and
so the civil war erupted). Lincoln ordered his friend, a German
National who had mastered military law to draft a code that will
govern the conduct of war. It was called the Lieber Code, from the
author’s last name, Lieber. It contributed a lot to international
humanitarian law on the rules of the conduct of war.
1899- Permanent Court of Arbitration
1907- Hague and Geneva Conventions (4 Geneva Conventions in
1949)
1922-1946- Permanent of Court of International Justice (PCIJ) of
the League of Nations, then replaced by the International Court of
Justice (ICJ) of the UN
Relevance of the PCIJ
PCIJ decisions are still found in the ICJ website. The PCIJ was
short lived. It was then replaced by the ICJ which of course was
the court or tribunal under the auspices of the UN which of course
replaced the league of nations.
1948- UN created the international law commission or the ILC
(tasked to codify international law)
What is the contribution of the international law commission?
The international law commission is a specialized body of the UN
tasked to codify international law. For example, the UN initiates a
convention, the one good example of this is the Vienna Convention
on the law of treaties or the VLCT of 1969 which entered into force
in 1980 upon the establishment of a convention, you will note that
before it had been established, before ratified and signed by states
that undergone deliberations, discussion and so there is what we
call preparatory works to a particular convention and normally the
international law commission will be asked to prepare the evidence
of this preparatory works and therefore the interpretation of the
International Law commission would be very helpful in interpreting
treaties. The observation therefore of the international law
commission would be very helpful in interpreting conventions or
treaties
19th, 20th centuries - the increase in global trade, armed conflict,
environmental deterioration on a worldwide scale, awareness of
human rights violations, rapid and vast increases in international
transportation and a boom in global communications saw the
importance and usefulness of PIL, which at this time began to
establish new and modern areas in international law (trade and
investment, technology, human rights, environment, space, etc.)
The 19th and the 20th centuries of course saw the emergence of
new areas in PIL why? This was the beginning of modernization,
globalization and so therefore activities of men got complicated as
early as 19th century so there was a need also to acknowledge
that there should be some norms governing this emerging areas in
the activities of states.
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Public International Law vs. Private International Law
How are they different?
Public International Law governs the activities of states and other
international persons/ entities in relation to each other (what their
duties, rights and obligations are).
Private International Law resolves “conflict of laws”. It does not
govern relationships between states but rather it governs what type
of law will be applied to a particular legal controversy (when there
is a foreign entity involved— “which law is applicable in a particular
controversy?”)
How is it possible that a court resolves a controversy using foreign
laws?
Generally, when activities of individuals, corporations and other
private entities when they cross national borders and in
controversies involving foreign element. The moment a foreign law
is involved; chances are it is private international law.
Subjects vs. Objects of International Law
What are subjects of international law?
Those that enjoy international legal personality and being capable
of possessing international rights and duties, including the right to
bring international claims.
Difference of subjects and objects of international law
Subject is the bearer of rights with the power to maintain and
pursue such rights. Object is not the bearer of rights nor can pursue
claims. The difference lies in international legal personality (see
ICJ Advisory Opinion)
What are the remedies of objects of international law?
Aggrieved parties may go to their respective government and
address the issue for the state itself to espouse its claim since it is
only states who can appear before the ICJ. This is called “Espousal
of Claim” (“Diplomatic Protection” is the term more accepted in
international law).
What is Diplomatic Protection?
It is when a state lodges a complaint because of an injury suffered
by its national in the territory of the other state. The state must
establish nationality (as taken in PIL)
What is functional protection?
It is when an international organization lodges a complaint. There
is no need to establish nationality. The reason is it cannot perform
certain functions or it cannot function effectively to make the
organization function without giving it personality.
Just and Fair Treatment of Aliens
It is the minimum standard required. So the moment a foreigner is
admitted in a foreign soil, that state is required by CIL to afford the
foreigner a just and fair treatment. Treating the alien with
discrimination on the basis of nationality without any justification
becomes a violation of this right of the state to which the person
discriminated is a national of. It becomes an “internationally
wrongful conduct”. This presupposes responsibility on the part of
the wrongful state. But, because the individual herein is just an
object of this claim, he will have to go to his state to espouse his
claim in the process of diplomatic protection.
Reparation for Injuries Case (ICJ Advisory Opinion, 1949)
Note: ICJ can give advisory opinions unlike our SC. The tripartite
system of government is not present in international law.
Therefore, it is okay for the ICJ to give advisory opinions. In fact, it
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is clothed with such power by the very statute that created it. It states conduct themselves when some states are engaged in war
does not violate the ‘separation of powers”. and they are not involved in it; the state will declare that it is a
neutral state and duties will be imposed upon the belligerent state
What happened in the case? and rights afforded to the neutral state
The Chief UN Truce Negotiator Count Bernadotte, a Swedish
national, was killed on September 17, 1948 in Jerusalem. The Difference between neutral state and neutralized state
assassins were allegedly a gang of terrorists. Israel was not a Neutral state—a sovereign state which officially declares itself to
member of the UN at the time of the incident. be neutral towards the belligerents in an ongoing conflict (governed
by Law of Neutrality)
The issue was WON UN had legal personality to bring a claim with
the view of obtaining reparations in respect to the damage caused Neutralized state—state whose independence, political existence
to itself, to the victim or persons entitled through the victim or WON and integrity are for all future time guaranteed by treaty, on
it is just exclusive to Sweden with regard to its own national. condition that such state binds itself not to engage in war (e.g.
Belgium, Switzerland during WWII)
The ICJ said The United Nations, is at present, the supreme type
of international organization, and it could not carry out the intention
of the founders if it as devoid of international personality. While it
is conceded that original international legal personality belongs to
the main actors of international law, namely states, the United
Nations has an international legal personality through the fact that
its member states, by the very fact of creating such an
organization, must have transferred some of their powers over the
organization (derivative international legal personality). The claim
brought by UN is not based upon the nationality of the victim but
rather upon his status as an agent of the Organization.

What did the ICJ say about International Legal Personality?

International Legal Personality is the ability to possess
international rights and duties and the power to sustain these
rights by bringing international claims.

What cases may the ICJ decide?

The ICJ can decide contentious cases (a claim by a state against
another state) and advisory opinion cases (the court will render
an opinion regarding a specific case presented to it).

Regimes or Divisions of PIL

Three regimes/Divisions of PIL

1. Laws of Peace
2. Laws of War
3. Laws of Neutrality

The Laws of Peace

Law of Treaties
Law of the Sea
Diplomatic Relations, etc.

Killing during peace is not permitted. However, killing during times

of war may be justifiable (e.g. killing a combatant during war, there
is no crime but killing a civilian during war, there is a crime).

Whenever diplomatic relations is terminated, members of the

diplomatic mission must be given sufficient time to leave the host
country and go back to their home state safely. They must be given
safe conduct.

The Laws of War

Jus ad Bellum (legality of engaging in war; e.g. rules whether the
use of force is permissible in entering into war)

Jus in bello (legality of the conduct of war; basically concerned with

international humanitarian law—other term for jus in bello;
regardless WON war is unlawful or not at the instance; applicable
to the civilians and belligerents)

The Law of Neutrality

Governs the conduct of states not engaged in war; how will these

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TOPIC B (SOURCES OF INTERNATIONAL LAW)
Sources (Formal or Material) of PIL
Formal source
Binding source by reason of the manner or method of its
creation. Formal source is also normative not merely descriptive.
It tells you why it is binding.
For example, if we talk about a treaty, this may be formal or
material. Its characteristic depends on what we are talking about.
If state A and state B enter into a treaty and state A is bound to
comply with a particular article, then the driving force here is
consent. This consent is what makes the provision binding. This
was created through the process of treaty-making which
presupposes consent. Remember, IL is consensual.
Material source
For example, if we are to say that state A is bound to do this, why
would it be bound? If the answer is because state A is bound by a
particular provision, example Article 5 then the location of this
obligation is the material source (perspective of where it can
be found or located)
• Art 38(1), Statute of ICJ: ICJ will decide the cases
submitted to it applying:
- Primary Sources:
o International conventions
o International custom
o General principles of law
- Subsidiary Sources (applied only if the primary
sources are not available or if there is no source at
all):
o Judicial decisions and teachings of most
highly qualified publicists
(Judicial decisions need not always be ICJ
decisions)
Article 38(1) of the Statute of the ICJ prescribes these sources that
the ICJ may use in contentious cases. These do not become
sources of PIL because the Article 38 says so. The listing in the
Article is demonstrative of what the sources of internal law really
are. SO, in the test, you must say “The sources of international
law are… as reflected in Article 38(1) of the Statute of the ICJ”
NOT “According to Article 38, these are the sources of the
international law…”
Is there a hierarchy in the sources of international law? Where can
you find it? What is your material source?
No, there is no specific hierarchy. In the travaux preparatoires
(preparatory work) of Art. 38, it was suggested that the sources as
listed should indicate hierarchy of sources but it was not carried
out. There was only the agreement to categorize these sources as
either primary or subsidiary. The sources of international law are
not therefore arranged in a strict hierarchical order.
However, while there is no hierarchy among sources, there is a
consensus among states, that of these sources, jus cogens
should be considered as always superior to the others.
What is the relevance of dividing the sources into primary and
subsidiary?
Note: Do not understand primary and subsidiary as in the ordinary
sense. There are even some scholars who regard “primary” and
“subsidiary” sources in different light.
According to Schwarzenberger, primary sources are better
interpreted as “law-creating” process while the subsidiary sources
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are better understood as “law-determining” process. IOW for him,
primary sources are the formal sources, while the subsidiary
sources are the material sources.
However, according to Shaw, there is a possibility of the
overlapping of sources. The problem arises when which
international law is more persuasive in an international court.
Paramilitary and Military in and against Nicaragua v USA
There were rebels in Nicaragua. US gave economic aid (weapons,
training, abetting) to the Contras who had been fighting to
overthrow the Sandinista government. The US was even accused
of planting mines in the internal waters of Nicaragua which
constitutes armed force. Nicaragua invoked Article 2(4) of the UN
Charter on the prohibition of the use of force. However, US’
defense was that it made a reservation when it signed the UN
Charter that it cannot be subjected to the JD of the ICJ in matters
that involve multilateral treaties (UN Charter is a multilateral treaty).
The ICJ said however, that despite US’ reservation, Nicaragua was
still correct in invoking the provision because it is actually invoking
a CIL on the prohibition of the use of force. The US argued that CIL
being codified as a treaty lost its character as a CIL. The ICJ
clarified that CIL never lose their character as CIL despite it being
codified as a treaty by the ILC.
Remember, for multilateral treaties, there is no such thing as “take
it or leave it”. Sometimes, it is beneficial for a state to become a
party of the treaty even when such state objects to a particular
provision/s. This constitutes a “reservation” which is what the US
did.
Recitation questions about this case:
Why did the US aid the Contras?
What is the title of the case?
What was the defense of the US?
What was the US’ reservation all about?
How did the ICJ rule?
International Conventions/ Treaties
“whether general or particular and establishing rules expressly
recognized by the contesting State”
The term “convention” includes and actually means “treaty”
To be clear, the 1969 VCLT does define the word “treaty” but only
for the purpose of applying the 1969 VCLT. Meaning, for the
treaties not entered into in accordance with the VCLT of 1969, they
are not to be governed by the 1969 VCLT. They will instead be
governed by the larger corpus of the law of treaties but not
necessarily the VCLT. The difference between the original body of
law of treaties and the VCLT is that some provisions of the VCLT
are progressive in character, not codification of existing CIL.
IOW, when we speak of the law of treaties, we are not only referring
to the 1969 VCLT. The law of treaties will apply to treaties entered
into between states in writing to be governed by international law
under the VCLT and those treaties that do not fall under the
definition of the VCLT. We can speak of treaties between states,
states and International Organization and between IO themselves
(so either between states or non-states). But, the VCLT only
speaks of treaties entered into between states.
So, the possible question in the Bar may be—What is the
difference between the law of treaties and the VCLT? The law of
treaties can be best described as the body of rules and principles
governing treaties in general, treaties entered into by non-states.
But when we speak of the VCLT, we are only referring to that
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convention applicable only to treaties entered into between states
as defined under Article 1.
Other terms: agreement, pact, understanding, protocol (it is a
treaty but amendatory of existing treaties), charter (treaty
indicative of the creation of an IO), statute (treaty creates a court
or tribunal), act, covenant, declaration, engagement, arrangement,
accord, regulation and provision
What does the International commission do?
Codify CIL
Should we treat primary sources more binding?
No, again there is no hierarchy between the sources.
Treaties
Distinguish “law making treaty” from “contract treaties”.
Law making treaties operate as binding rules and are similar to
statutes. It imposes the same obligations on all the parties to the
treaty and seek to regulate the parties’ behavior over a long period
of time. The purpose is to conclude an agreement on universal
substantive legal principle. They regulate conduct and more or less
permanent in character. It mandates a particular form of behavior
just like that of a statute. They will create international principles or
norms.
Contract treaties are not sources of international law but merely
legal transactions. They resemble contracts (reciprocal). The
observance of the contract depends on both contracting parties
(performance of one depends on the other’s) and their willingness
to observe. These are non conduct-forming treaties.
Custom
Custom
Article 38(1) ICJ Statute: “as evidence of a general practice
accepted as law”
Section 102, Restatement (Third): “CIL results from a general and
consistent practice of states followed by them from a sense of legal
obligation”
Why is it called objective element?
It is something we can assess objectively through consistent state
practice. So basically, this is easy to determine that state practice
does exist because it can be shown overtly through evidence.
What is your understanding of subjective element?
It is the mental evaluation or behavior of the state that they have to
follow such with the belief that it is legally binding. This is more
difficult to find evidence for since it is a mental evaluation.
Paquete Habana Case
There was the US-Spain war. Fishing vessels that were unarmed
were captured by the US as prizes of war. The fishing vessels were
just out there purely fishing which is regarded as a pure
commercial act. There was no domestic law in the US that
recognized the norm that fishing vessels are exempt from being
captured as prizes of war. Apparently, however, US is adopting the
incorporation clause. The Court found CIL truly exempting these
fishing vessels from being captured, as evidenced by their
consistent state practice. In this case, state practice was evidenced
by previous treaties, and official acts made by the US and other
states in relation to capturing of prizes of war (Note: For Recits,
name the evidence of state practice). All of this evidence point to
official acts that evidence this CIL.
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So how do we assess that the practice does exist?
There is no specific threshold in determining generality. The state
practice must be extensive and virtually uniform but recount only
those practices of states whose interest is affected. We call this as
“relevant state practice.
The problem is with opinion jure sive necessitates. How can one
tell that this element exists?
One way of looking at opinion jure is by looking at the acts of states
through numerous declarations especially if it states about general
assembly resolution. It is a resolution agreed to by the member
states of the UN. If a significant number of states sign and agree
to the general assembly resolution then it can be said that these
countries regard this specific norm or act as one that is followed
with the belief that it is legally binding.
What is the difference between custom and usage?
It is the element of belief that distinguishes custom and usage.
A. Custom – is a practice that states believe themselves to be
under a legal obligation to follow. (e.g. state immunity). In
other words, practice with opinio juris. 

B. Usage – is a practice that states generally follow without
believing themselves legally bound to do so. There is only
observance of the conduct out of convenience and not
because they believe it is a legal obligation. (e.g. alternat
– system observed by UN members in the signing of
treaties in the observance of co-equality) In other words,
practice without opinio juris. 

Asylum case
Following an unsuccessful rebellion in Peru in 1948, an arrest
warrant was issued for one of the leaders of the rebellion (Haya de
La Torre), a Peruvian national. He sought and was granted asylum
by Columbia in its Peruvian Embassy. Colombia sought, but Peru
refused, to provide a “safe conduct” for Haya de La Torre from the
country.
Colombia requested the ICJ to rule that it (Colombia) as the state
granting asylum was the country competent to characterize the
offense as political for purposes of asylum. Colombia based its
submission on treaty and “American international law in general”
or regional or local custom peculiar to Latin American states.
What is the name of the Peruvian national?
Haya dela Torre
Did Haya go to Colombia?
No, only the Embassy of Colombia in Peru
How relevant is this case in the principle of Customary law?
The burden of proof lies with the party alleging the existence of the
custom. It must demonstrate that the custom relied upon was
established in such a manner so as to become binding on the other
party. An alleged regional custom demands greater uniformity in
practice than a general custom.
There is no requirement of universality but there is such a
requirement of uniformity. The level of uniformity will vary
depending on the nature of international law whether it is universal
or regional.
If it is regional customary international law, a higher threshold of
uniformity is required in order to convince a tribunal that there
exists such customary international law. There is no formula on
how much greater the threshold is required. It cannot be quantified.
It all depends on the circumstances of the case.
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Germany argued back that such principle cannot be a CIL in
What was the issue about? such a short period of time (1958-1964)
The problem is this, Colombia granted asylum because according
to them the offense that Dela Torre committed was political and Issue: Is “long period of practice” relevant and important in
therefore the grant of asylum was appropriate. It was contested by determining the formation of customary international law? May CIL
Peru saying that it was not political and the crimes committed by be formed in a short period of time? Is there such a norm as “instant
Dela Torre were common crimes. customary law”?

It is important to note that a crime is whether common or political
crime because we want to know if the grant of asylum was
appropriately effected. Because, if the crime was a mere common
crime, then the grant of asylum was improper and the state may
not respect such.
BASICALLY, the main issue is which state has the competence to
determine whether the offense is indeed a political offense—the
state granting asylum or the other state allegedly politically
prosecuting the one seeking asylum. (In this case, there was an
assertion of a regional custom in Latin Americas by Colombia that
it is the competent state to determine)
Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons Case (1996)
ICJ said that the General Assembly resolutions may show the
formation of opinio juris. Although not legally binding, they may
have normative value. 

Lotus Doctrine (customary international law and how to relate it to
sovereignty) A state is barred to do an act only when it is so
prohibited under a treaty or customary international law because
restriction to state sovereignty is not presumed 
 a short period of time. Sometimes, the period will be relevant in
What is the normative value of the UN General Assembly
resolutions?
They not binding because these are just resolutions. These are
however, reflective of the opinion juris. While not legally binding,
they have normative value, that is the establishment or proving of
opinion juris. Imagine, these are the opinions of the member-states
of the UN regarding a specific issue or statement. That is why we
have the voting. It is evidencing their mental evaluation of the
norm.
Guide Questions in understanding CIL: (answer at home)
- What constitutes state practice? 
 is consistency, generality, uniformity of the practice.
- How much practice is required? (duration, consistency,
repetition, 
and generality requirements) 

- What is the valur of a state’s (1) abstention or failure to protest
against a norm and (2) protest against a norm?
- Are dissenting and non-participating States bound by custom?

- What evidence is required for opinio juris? 
 State practice need not be universal or unanimous. It can be
- May treaties be invoked as evidence of customary law? May
they create customary law? 
 activity. We only count the practices of those states whose
- Is there a normative hierarchy in customary law? 
 interests are specially affected and this is where we look at whether
- Would declarations of law adopted by the UN G.A. constitute

presumptive evidence of accepted international law,
irrespective of actual state practice? 
 regarding fishing zones, we only count those states who have
North Sea Continental Shelf cases
Facts: This case involves the application of the equidistant
principle of the delimitation of continental shelf and the equitable
delimitation rule. Equidistant rule is provided in 1958 Geneva
Convention on Continental Shelf. Germany argued they are not
bound by it since the provision was not yet effective at that relevant
time. Relevant states were not yet parties of the 1958 Vienna
Convention and did not yet enter into force. Netherlands and
Denmark contended that the principle of equidistance is a CIL.
BASICALLY, how do we delimit continental shelves because we
cannot have overlapping shelves? This involves the application of
(1) equidistant principle and the (2) equitable delimitation rule, that
were prevailing at that time.
Held: The equidistant principle is found in the 1958 Geneva
Convention. This was the contention—that the principle cannot
have risen to the level of CIL since the passage of time when it was
put into force was too short to create such.
ICJ said short passage of time is not necessarily a bar to the
formation of customary international law. What is controlling is that
the state practice, including that of states whose interests are
specially affected, must be extensive (requirement of generality)
and virtually uniform (requirement of uniformity) with regard to the
provision in such a way as to show a general recognition that it is
a binding law.
Instant CIL or Accelerated CIL
Akehurst calls this “INSTANT CIL” or others call it
“ACCELERATED CIL”. A short period of time will not necessarily
bar the formation of CIL. Do not think CIL can always exist within
determining how general the practice may have been, how
consistent the practice has been. The longer the period, the more
it can establish opinion juris.
IOW, this case teaches us that the element of state practice
presupposes that this state practice that we consider in
determining whether that is CIL must refer to what is known as
“relevant state practice”. This means that if we are to talk about
whether there is a repeated, general, consistent state practice, we
do not count the practices of all states. We only count and assess
the practices of those states whose interests are especially
affected. Only in those state practice we can derive whether there
Relevant state practice doctrine
Practice of those states whose interests are specially affected. In
counting state practice, we do not necessarily include all the states.
We only count the so-called relevant state practice.
general, but it must have wide acceptance of states involved in the
the practice is extensive and virtually uniform. For example, if we
talk about fishing zones as regards what is the norm of states
fishing zones which are those coastal states. There is no
mathematical formula. It is always a case to case basis. No
requirement on unanimity, only extensive and virtually uniform.
What is the normative value of a state’s abstention on failure to
protest against a norm?
The Persistent Objector Doctrine or the Persistent Dissenter Rule,
if a state is not classified as a persistent objector and does not
follow the norm then he is considered as violator.
Lotus case

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Lotus, a French steamer, and a Turkish steamer, collided on the
high seas. The Turkish steamer sank and eight Turkish sailors
died. The French officer (Monsieur Demons) on watch of the Lotus
was prosecuted in Turkey. French government argued that the flag
state has jurisdiction. Turkey counter- argued that the “flag state
rule” is not exclusive and that there has been no rule of customary
international law which gave exclusive jurisdiction of the flag state.
The PICJ said that there was neither customary international law
nor conventional international law that prohibited the exercise of
territorial criminal jurisdiction and so restriction to state’s
sovereignty cannot be presumed. Thus, Turkey has jurisdiction
since the flag state rule as insisted by France could not at that time
be considered as CIL. In the absence of clear customary or
conventional international law, a state’s sovereignty cannot be
diminished or restrained. So, if a Turkish court insists its
jurisdiction, it is not permitted to be prohibited to do so only if there
is clear customary or conventional international law prohibiting it.
The counter-argument of France however was that it alleged the
presence of the practice of states all over the world regarding using
the flag state rule. Most states do not exercise criminal jurisdiction
over offenses committed onboard of a foreign vessel. IOW, there
is apparently a negative practice on the exercise of criminal JD for
offenses committed on a foreign ship. Even against France’s
contention that there was a negative practice of exercising criminal
jurisdiction in a foreign ship, Turkey still has JD. There was no
evidence that states refused to exercise criminal JD over offenses
committed onboard a foreign vessel because its non-performance
was believed to be legally binding. Therefore, France’s contention
lacked the element of opinion juris.
UNCLOS now has the rule on collision cases in the high seas. It is
the “flag state rule” or the “nationality of the offender principle” that
are applied (as to what rule will be applied, it will depend on the
circumstances of the case). However, during the time that this case
happened (1926), there was still no rule regarding this.
What is the name of the French officer?
Monsieur Demons
What is the flag state rule?
The flag that the vessel carries is the place of the registration of
the vessel. Since, the vessel was registered in France then the
crime is deemed to have committed in France.
What is the normative value of abstention or the negative practice
of states regarding a certain norm?
Shaw discussed this topic well compared to Akehurst. He said that
if it is abstention or the non-performance of a state practice, it must
still comply with the element of opinio juris. Meaning the abstention
of a norm should likewise be upon a belief that not doing so is also
imposed by law or that the abstention is also legally called for.
What is the Persistent Objector Doctrine (POD)?
According to ICJ the important elements to consider in this case
are:
1. The objection by the state objector/dissenter must have been
done before the norm has ripened to customary international
law or at the outset. 
 Issue: Can ICJ claim jurisdiction over such case considering that
TN: Otherwise the objection can be treated as a violation of the
customary international law and in that regard there is a breach,
and so the state dissenting may still be bound by the customary
international law. 
 undertaken in the treaty is to submit to the jurisdiction of the ICJ
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2. The objection must be consistent.

Note: It cannot be that you objected 50 years ago and the next time
you express your dissent to the norm will be 50 years after, then it
is hard to comply with the requirement of consistency. The
objection must be consistent in the same manner as the practice
must also be consistent. 

3. The objection must be categorical, clear and equivocal dissent
must be shown.
BASICALLY, take note of the elements. The element as to TIME—
must be prior, MANNER—must be persistent, likewise be CLEAR
CATEGORICAL that you are really objecting to the practice.
What is the value of the POD?
Since it is a CIL, all states must comply because all states are
bound by it. Non-compliance may even mean sanctions to the non-
compliant state. However, when the state qualifies as a persistent
objector, it may not be compelled to follow the CIL.
Anglo-Norwegian case
If the two points of the mouth of the bay is 10 nautical miles or less,
it is acceptable and considered a practice to just draw a straight
line connecting the two points of the mouth and no need to indent.
Otherwise if it is more than 10 nautical miles following the low water
mark, then drawing a straight line between the two points is not
allowed. In which case, the baseline should be indented.
Norway felt it should be granted more than 10 nm due to its
increasing needs but UK said that Norway has to be bound by the
rule. However, ICJ noted contrary practice by other relevant states,
not all states but only those with baselines and maritime zones.
The ICJ also said that even assuming that this rule ripened into
customary international law, Norway has been consistently
objecting to the 10 nautical mile rule even before this rule assuming
has ripened to a customary international law. This is the doctrine
known as persistent objector/dissenter.
Fisheries Jurisdiction Case
Iceland and UK had agreed in a treaty that they will submit to the
jurisdiction of the ICJ because of consent (either by submitting to
the jurisdiction or when there is an advanced consent – when
stipulated in the treaty)
The treaty provided for the extent of fishing within the fishing zone
of Iceland. In such treaty, UK recognizes the extent of the fishing
zone of Iceland, which is 12 nautical miles and Iceland wants to
extend the fishing zone to 15 nautical miles.
The reason for the adjustment is the development of new fishing
techniques that allowed fishermen to fish more than what was
expected. Iceland contends that this is something that cannot be
foreseen and hoped that the treaty could be suspended or
abandoned. When the case was brought to the ICJ, Iceland
claimed that ICJ has no jurisdiction because such treaty has been
terminated or at the very least suspended. It was the technique in
fishing that was considered a fundamental change, which resulted
to the over fishing.
the treaty has already been suspended?
Held: Fundamental change in circumstance must refer to the very
object and purpose in the treaty. In this case, the obligation to be
cases where there is a dispute in connection to treaty.
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In the case at bar, Iceland contended that it was the technique in
fishing which resulted to overfishing which was considered a
fundamental change in circumstance.
ICJ said that the change in the technique in fishing cannot be
considered a fundamental change of circumstance because it had
nothing to do with the obligation of the treaty, which is to submit to
the jurisdiction of the ICJ. Thus, any change in the technique of
fishing did not affect the jurisdiction of the ICJ.
Key Principle:
Article 62 of the VCLT, relating to termination of a treaty because
of a fundamental change in circumstance (“rebus sic stantibus”).
Represented a codification of existing CIL. In the case, there was,
however no evidence of such “fundamental change” in the fishing
techniques that resulted to what Iceland called overfishing in the
Icelandic coast. In any case, such fundamental change doctrine
may only affect the merits of the case, but not as to the issue of
whether the ICJ will have JD over subject matter.
BASICALLY, the value of this case is to know that rebus sic
stantibus is part of CIL, along with the principle enunciated in the
Advisory Opinion on the Use of Nuclear Weapons.
General Principles Law
In the Statute, it refers to the GPL recognized by peace-loving
nations. In the preparatory works, the reason why there is a third
primary source provided is to address a dispute that neither
convention or CIL governs. Therefore, the ICJ may make use of
GPL if only to dispose of the case.
“Law” can refer to both “international law” and “municipal law
elevated as international law” (common municipal law).
These GPL are actually principles originating from domestic
jurisdiction (e.g. estoppel, prescription, good faith, exhaustion of
remedies and others)
If under most domestic laws, the test of standing in court is the
“direct injury” test and “personal interest test”, in international law,
what is the test on locus standi (in particular, in contentious
cases)?
(not answered)
Barcelona Traction Case
Facts: Barcelona Traction Light and Power Company Limited is a
corporation doing business in Spain but was registered in Canada.
It got bankrupt because it issued some bonds when under its
finances it shouldn’t have done so. It was forced to pay off some
bonds which resulted to alleged bankruptcy. (It has a business in
Spain and in the course of its usual business, it issued bonds. The
only way to recover from these bonds would be for these bonds to
be honored. However, for some reason and because of
government regulations by Spain, these bonds were not honored
which according to Barcelona Traction, contributed to its
bankruptcy)
There was a cause of action against Spain because it was an act
of the government of Spain but the problem is when it comes to
corporation when we apply nationality principle as one way to
exercise diplomatic protection, the state applying for diplomatic
protection or the supposed victim which breached the international
law must be a national of the state which will exercise diplomatic
protection.
Nationality therefore of this corporation is the place of registration
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which is Canada. Canada is unwilling to initiate the claim and so
the company theorized that majority of the stockholders are
Belgian nationals. The issue is whether or not Belgium can
exercise diplomatic protection for and behalf of the injured
stockholders.
The ICJ ruled that in the absence of applicable international law,
this is cognizance must be given to the relevant institution of
domestic law. Otherwise the ICJ would lose touch with reality
particularly that there are no corresponding institutions of
international law to be its stepping board as reference.
Recitation Questions:
What is the name of the company? Barcelona Traction Light and
Power Company Limited
Is it a company? Yes
Why did the company incur losses? It issued bonds which were not
honored due to the government regulation issued by Canada
Why is it important to discuss why the company incurred losses?
Basically, Spain violated the principle of just and fair treatment
thereby incurring state responsibility
If a foreign corporation claims that the foreign state should be
responsible, what problems do we encounter? The problem is
which state should espouse the claim or exercise diplomatic
protection
What is the test of nationality of a foreign corporation? Where it
was registered
Does the international law require that the injury be direct? Or at
the very least, does international law require that there be injury?
Yes. (please look at the discussion below)
How was it resolved by the ICJ? Through the application of the
principle of distinct and separate personality. Remember, the act
of Spain was an offense not against the Belgian stockholders but
against the company which is registered in Canada. This principle
is domestic but the ICJ applied it nonetheless.
Barcelona Traction Case Discussion
What is espousal of claim again?
Generic term where a claim of a citizen of a particular state is
elevated to the international level where an individual will not have
legal standing.
2 Elements before a state can exercise this diplomatic protection:
1. Prior exhaustion of local remedies (to ensure that all effort
has been done to the resolution of the issue in the domestic
level)
2. Effective nationality link
Principle of Just and Fair Treatment (in relation to the case)
Now, remember the international law principle of Just and Fair
Treatment. The moment a foreign national whether natural or
juridical is lawfully accepted in the territory of a particular state, the
state is duty-bound under international law to give that foreign
national fair and just treatment. It cannot discriminate against a
foreign national and issue regulations against a foreign national but
favoring its own citizens without reasonable justification for doing
so. For example, political rights are not to be enjoyed by foreigners
because it involves rights that have something to do with the citizen
and his relationship with the state. This is valid.
Public International Law (Atty. Daryl Largo Discussion based on his syllabus)
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That is why in the case of Barcelona Traction, due process for
example should be afforded to foreign nationals in as much as it is
afforded to the state’s citizens. The government regulation of Spain
was directed discriminately against Barcelona Traction for being a
Canadian National, thereby committing an internationally wrongful
conduct that would engage state responsibility.
So, the proper action is to go to the ICJ. However, Barcelona
Traction has no personality in representing a claim before the ICJ.
It would need its state to espouse the claim and exercise diplomatic
protection, but Canada did not. That is why Barcelona asserted
that if Canada did not espouse their claim, they prodded Belgium
to do so since majority of the stockholders happened to be Belgian.
How did the ICJ dispose of the case?
A GPL was applied. The principle as that the corporation has a
distinct and separate personality from its shareholders. This
principle is of domestic origin but it was used by the ICJ in its
decision.
The ICJ said that the alleged wrong committed by Spain was not
really against the shareholders but it was really against the
company. Since the company has a distinct and separate
personality, it could not be that the stockholders should have the
cause of action against Spain. IOW, Belgium was not the right
party but Canada.
ICJ said in international law, generally, we require injury of the
state to have legal standing. However, there may be instances
where direct injury may not be required. Those instances are
where:
(1) the right involved is towards the international
community – erga omnes suit. Had the claim of
Barcelona traction revolved around erga omnes norm
then any state would have legal standing before the ICJ
and;
(2) erga omnes inter partes principle—general
obligation of the state towards other states, not the entire
international community. This may happen in obligations
embodied in international conventions where a state
violates an obligation embodied therein which is
considered an obligation towards specific states who are
parties to the convention.
Southwest Africa, Namibia case
Principle: While in Barcelona Traction a general principle of law
was applied, in Southwest Africa case it was ruled that the
supposed general principle of law invoked by Ethiopia and Liberia
was not recognized as a general principle of law (action popularis
was not yet recognized as a GPL in the 1960’s.
Facts: The period of 1960’s, was a period of decolonization,
because there was a UN general assembly resolution calling upon
all powerful states, colonizing states, to leave colonized territories
alone and respect their people’s right to self-determination.
And so, Germany, which was occupying Southwest Africa or
Namibia decided to implement the decolonization process. The
problem however is this, Namibia did not know yet how to self-
govern. So, civilization level of Namibia was low that it needed
someone, a trustee, to administer its governmental affairs. Then
there was this South Africa. So, South Africa was granted under
the trusteeship program of the UN the power the administer
southwest Africa, the idea was to teach Namibia to self-govern so
that later on it will be left alone as an independent state. But what
did South Africa do on the contrary? Instead of administering and
making sure that they will learn to govern themselves, South Africa
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manifested its intent to annex Southwest Africa and then
implemented racial discrimination called the apartheid. The
international committee saw that as a breach, a material breach to
the trust reposed upon South Africa.
In order to solve the issue as to who would take the initiative to
terminate the agreement between South Africa and UN (for and on
behalf of the people of Namibia), Ethiopia and Liberia filed a case
questioning the continued “administration” of South Africa over the
Namibian people.
Remember: If a state would have a territory in trust under the
mandates of the UN, international law has treated that as a treaty
obligation. Therefore, any violation of the mandates of the UN
would be considered a breach of the treaty obligation.
On what basis would the standing of Liberia and Ethiopia be
justified to bring the claim for the people of Namibia?
Actio popularis—the action to obtain remedy by a person or a
group in the name of the general public without being or directly
representing the victim. At least in 1966, it was not yet recognized
as a GPL. This GPL as invoked by Ethiopia and Liberia was not
recognized as such and was not applied to dispose the case in
their favor.
What is actio popularis?
In international law, it refers to the action taken by a State in the
name of the international community even if it is not directly the
victim.
Recitation Questions:
What is the issue in this case of Southwest Africa, Namibia? Who
has personality to bring a claim in favor of a people who do not
really form a state.
Judicial decisions
Article 59, Statute of the ICJ
The decision of the court has no
binding force, except between the parties and in respect of that
particular case.
There is no stare decisis on ICJ decisions because Art 59 provides
that decisions of ICJ shall apply only between the parties and only
in a particular case. So even if two cases have practically the same
issue, the ICJ is not bound.
ICJ decisions are independent of judicial decisions of other newly
created tribunals such as the ICC, etc. for lack of formal or
institutional relationship between these tribunals. While they are
not binding, they can be given persuasive value or be guides to
assist the court.
Learned Writers
Not all publicists will qualify as subsidiary source. It should be the
“most highly qualified publicists” and they should have been quoted
with regard to a particular norm in International Law.
Other possible sources of international law
1. Acts of International Organizations 

Examples: UN and its organs like the General Assembly
2. Soft law (law as it ought to be- lex ferenda norm)
Guidelines of conduct which are neither strictly binding
norms of law nor completely irrelevant political maxims.
Laws which have no binding effect to the parties. Thus,
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non-observance by states do not give rise to liability.
Examples: UN Declaration and most of the conferences
found in International Environmental Law. The UN
Declaration, for example only set as guidelines when
states enact laws between other states and towards their
constituents.
Normally, the enforcement would come through advice
and issuances telling the violator-state of the standards
that were not complied with. However, there are principles
under the UDHR that have already ripened into hard laws
as they are covered by treaty or convention and not
because they are mandated by the UDHR.
Hard law (lex as it currently is- lex lata norm)
Law as it currently stands. These are norms where non-
observance of which will result to State Responsibility
Examples: Treaty, CIL, Jus cogens
3. Equity (Justice)
Principles like: “clean hands”, “good faith”
“Ex aequo et bono”(“According to what is right or good” )
Art 38 (2) ICJ Statute –
This provision shall not prejudice
the power of the Court to decide a case ex aequo et bono,
if the parties agree thereto.
 The GPL applied here was “in pari delicto”.
TN: If possible, the ICJ will apply the general concept of
fairness, if the parties agree. Hence, it may be possible
where equity may be allowed to override other rules,
provided that the parties agree.
What does ex aequo et bono mean?
Ex aequo et bono literally means a decision in which
equity overrides all other rules. The important framework
here is that this ex aequo et bono jurisdiction of the ICJ
presupposes that as between the parties in that dispute,
certain rules, whether primary or subsidiary sources may
be applied to the parties in regard to that dispute but the
parties have decided that their dispute be resolved on the
basis of a particular rule on equity as the court may apply.
If “equity” is a “general principle of law” and therefore a
source of international law that the ICJ can apply, why
require “agreement” by the parties before “equity” in Art.
38 (2) may be applied by the ICJ?
Because equity under Art. 38 (2) is not applied as a
general principle of law. The consent of the parties is
needed because in reality, the controversy can be solved
by applying treaty law of CIL, but the parties decides to
apply equitable principles instead. It is in such a case that
equity overrides all other laws.
It is important to note that there are 2 instances where
equity may be applied:
1. Ex Aequo et Bono—there is the requirement of
agreement by the parties. This presupposes that the
parties have agreed to dispense with any applicable
international law but the parties have submitted
themselves to the ex aequo et bono jurisdiction of the
ICJ by permitting the ICJ to resolve the case on the
basis of equity instead of the applicable rules of
international law
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2. Non Liquet—there is no requirement of agreement.
This is when the court observes that there are neither
conventional or customary rules of international law
that can be applied to the case, general principles of
equity may be applied. This is part of the general
jurisdiction of the ICJ at the time that the parties have
submitted all issues to the dispute to the court. This
is some sort of “filling the gaps” between the sources
of international law.
What is the difference between non liquet and ex aequo
et bono?
The distinction here is in the fact that the ex aequo et bono
jurisdiction of the ICJ, there are actually applicable rules
of international law to the dispute but the parties have
agreed that equity will be applied instead. Maybe the
parties have already evaluated the outcome of the case
and the applicable international law will resolve the
dispute and they do not accept the outcome and so they
would rather submit it to the court of another regime and
that is of equitable consideration other than international
law.
In the case of non-liquet, it presupposes that there is no
applicable law to the dispute and the ICJ apply equity
instead.
Netherlands v Belgium (River Meuse case)
The River Meuse is a shared water resource between
Netherlands and Belgium. In international law basta
share resource whether water or whatever it is always
govern by equitable regime, not equal but equitable
(principle of equitable use). But under international law
the idea of equitable utilization of resource would have to
be agreed first by states concerned. And so Netherlands
and Belgium entered into a treaty on how to utilize its
shared resource. Among others it prohibited the diversion
of the flow of the River Meuse to benefit only one state
and to deny others equitable utilization of the shared
resource. Ang gibuhat sa Netherlands nag himo siya
Canal. A Canal is man-made river. It was another river
made by Netherlands diverting the flow of the River
Meuse. Ang Belgium instead of complaining did also the
same thing, himo sad siya Canal, diverting the flow of
River Meuse to support its Agri-business. Ang nireklamo
ang Netherlands, “Belgium, you have violated the treaty,
that conduct is not pursuant to an equitable conduct.”
The ICJ in disposing the case applied the principle of in
pari delicto which is a principle of domestic origin applied
in an international tribunal. Those who come to the court
must to courts with clean hands. Here, the parties were in
pari delicto. The law will therefore, leave them where they
are as if no cause of action had been established against
the other.
Recitation questions:
What was the agreement all about?
What was the GPL applied to the resolution of the case?
(Doctrine of Clean Hands—those who come to courts
must come to court with rubbing alcohol haha; Mutually
Guilty Doctrine; In Pari Delicto Doctrine)
If the River Meuse is a shared resource, what is the
general principle applicable? (Principle of equitable use)
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What did the country-parties do, in contrast to their
agreement?
Did Netherlands violate prior to when Belgium violated the
agreement? (Yes)
What happens when we apply the Clean Hands Doctrine?
Custom vs Usage/ Comity
Custom—practice that states believe themselves to be under a
legal obligation to follow (opinion juris) e.g. state immunity
Usage or comity—practice that states generally follow without
believing themselves legally bound to do so (e.g. alternat—process
where states, when they bring a copy of the convention back home,
the first state that appears in the treaty is that state)
Hierarchy of the Sources of International law
Jus Cogens
This is the particular principle of international law that prevails over
all others. The material source is Article 53 of the VCLT, making it
a limitation to the kind of terms and condition that states may
stipulate in a treaty. A treaty is void if, at the time of its conclusion,
it conflicts with a peremptory norm of general international law (jus
cogens).
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.
Examples: Prohibition on the use of force, genocide, slavery, gross
violation of the right of the people to self-determination, racial
discrimination, torture.
Also, since there is no hierarchy among the sources of international
law, both Akehurst and Shaw had thought that the international
tribunal can actually make use of some common principles of
interpretation. These principles of interpretation of course are not
unfamiliar to us because in fact they are actually applied in our
statutory construction (e.g. later law will necessarily derogate the
earlier law when both laws are of the same character; a later
general law cannot abrogate a prior special law; a special law will
abrogate a general law)
Obligations Erga Omnes
Obligations of a state to the international community (e.g. not to
commit/ fail to punish international crimes; not to violate people’s
right to self-determination)
Obligations for which all states have a legal interest in the
fulfillment by reason of the importance of their subject matter to the
international community. It is the duty to refrain from doing,
irrespective of any treaty because the obligatory duty of
compliance is understood or being owed to the international
community as a whole.
To determine if there exists such a duty towards the international
community and therefore erga omnes norm is to know whether
such duty addresses a jus cogens norm in order protect, promote
and preserve a jus cogens norm.
For example: Obligation erga omnes is not to commit genocide but
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the jus cogens norm is the prohibition against genocide
Guidelines in determining which source of pIL prevails over the
other:
Jus cogens norms always prevail
Later law will prevail over the former law
Special law prevails over the general law
Statutory construction principles also apply
What will bind sovereign states?
Public international law
Unilateral declaration of State Doctrine: a unilateral declaration
binds the state internationally when:
- Publicly made and manifesting will to be bound
- Made by an authority vested with the power to do so
- Made orally or in writing
- Addressed to the international community or to
specific state or entity
- Stated in clear and specific terms
- Consistent with jus cogens
- Will not bind third states who do not accept it
- Not validly revoked
Unilateral declaration of a state may also be a source of obligation
when done in the above means.
Even if there is no specific obligation stated in a convention, the
basis of a state to follow an obligation may be its unilateral
declaration to comply with the obligation. Because it declared itself
to follow with the obligation, it must be bound to do so.
Philippine Practice
Sec 2, Art II, 1987 Constitution
The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations.
Generally accepted principles of international law in the
Philippines:
1. Through incorporation – “front door”; international law
becomes automatically part of the law of the land without
any action by the government (Article 2, Section 2)
2. Through transformation – “back door”; via a positive or
affirmative act by the government transforming the
international law into domestic law.
a. By executive action – official pronouncements
by the Executive departments, i.e. issuance by
the President, DFA, etc. 

b. By legislative action – When Congress pass
laws in conformity with international laws 

c. By judicial action – judicial decisions as when
the Supreme Court will apply the international
law 

Kuroda v Jalandoni case
Certain generals questioned the authority of the Philippine
government in establishing a military commission for the purpose
of trying them for war crimes.
Universal jurisdiction, as mentioned earlier, may apply. They can
be prosecuted anywhere. So any state can establish a tribunal for
that purpose. The argument was that why was there a need to
establish a tribunal to punish war crimes when these are punished
under The Hague and the Geneva Convention which had not yet
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entered into force in so far as the Philippines is concerned. But
then, the prosecution of war crimes partakes the nature of erga
omnes and the violation of principles of International Humanitarian
Laws constituting war crimes would be CIL. Such rules and
principles form part of the law of our nation even when the
Philippines was not a signatory to the convention embodying
them.
In accordance with the generally accepted principles of
international law of the present day, including the Hague
Convention, the Geneva Convention and significant precedents of
international jurisprudence established by the United Nations, all
those persons, military or civilian, who have been guilty of
planning, preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and
incidental thereto, in violation of the laws and customs of war,
of humanity and civilization, are held accountable therefor. 
 See.
In the promulgation and enforcement of Executive Order No. 68,
the President of the Philippines has acted in conformity with the
generally accepted principles and policies and international law
which are part of our constitution. 
 there was an argument that there was a violation on the
USA v Guinto
“A state cannot be sued without its consent”, as expressed in
Article 16, Section 3 of the Constitution is one of the GAPIL (it is
already CIL) that the Philippines has adopted as part of the law of
the land in relation to the incorporation clause found in Article 2,
Section 2.
Even without this affirmation, we are still bound by this
principle under the doctrine of incorporation. Under such, as
accepted by the majority of states, such principles are deemed
incorporated in the law of every civilized state as a condition
and consequence of its membership in the society of nations.
Upon its admission to such society, the state is automatically
obligated to comply with these principles in its relations with other
states. 
 the treaty may prevail over customary international law.
In the case of the foreign state sought to be impleaded in the local
jurisdiction, the added inhibition is expressed in the maxim par in
parem, non habet imperium. All states are sovereign equals and
cannot assert jurisdiction over another (par in parem non
habet imporium or principle of co-equality among states).
Note:
Jure imperii—in the sovereign capacity
Jure gestionis—in the private capacity
Jure imperii and jure gestionis (doctrine of restrictive state
immunity)
Application of state immunity from suit is only confined in acts that
are done in their governmental capacity and not jus gestionis
Consider ICSID in stare immunity
ICSID is not a court, it is just a framework to which the Philippines
is a party. It is an international agreement between states allowing
foreign investors to directly initiate a “suit” for arbitration or
conciliation involving disputes against states (e.g. violation by a
member state of the “Fair and equal treatment rule” involving
foreign investors.
As an international agreement, states have therefore waived their
immunity from suit in the cases covered by the ICSID. The ICSID
rule, however, requires “double consent”. The arbitration case will
be filed in accredited arbitral bodies (e.g. Permanent Court of
Arbitration in Hague), not in domestic courts.
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Holy See v Rosario
The right of a foreign sovereign to acquire property, real or
personal, in a receiving state, necessary for the creation and
maintenance of its diplomatic mission, is recognized in the
1961 Vienna Convention on Diplomatic Relations (Arts. 20-22).
This treaty was concurred in by the Philippine Senate and entered
into force in the Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted
immunity from the civil and administrative jurisdiction of the
receiving state over any real action relating to private
immovable property situated in the territory of the receiving
state which the envoy holds on behalf of the sending state for
the purposes of the mission. If this is applicable to the envoy, all
the more that this rule is applicable to the sovereign itself, the Holy
Reyes v Bagatsing
When the demonstration was controlled on the basis that there
was an imminent danger on the safety of the US Embassy,
freedom of expression which includes the right to peaceably
assemble.
The SC said that the right is not absolute. It can be limited not
only by law but also by also by international obligation. The
Philippines, not only it is a member of the Vienna Relations, has
the duty to protect the embassy of another state as CIL which
is to protect the premises of the mission (the embassy)
regardless of the convention.
Which between CIL and treaty law prevails?
In terms of clarity of intent, the treaty provides a clearer intent
because for one it is a product of a process or deliberation so what
comes out after the negotiation and ratification should clearly
represent the intent of the parties. And so in terms of clarity in intent
In terms of whether it is more binding, customary international law
has been a product of a long practice and so it may prevail over
treaties. Treaties are binding only in so far as to the parties
concerned, however customary international law are also
applicable even those states who don’t practice or objected to the
law except if such state is a persistent objector/dissentor.
But really, CIL and Treaty can exist alongside each other as was
ruled in Nicaragua v. USA case. And as previously discussed,
there is really no hierarchy of sources, except insofar as jus cogens
is concerned
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TOPIC C (TREATIES)
Definition of a Treaty (Nature of a Treaty)
VCLT Definition of Treaty (came into force January 27, 1980)
The preliminary research and drafting were carried out by the
International Law Commission, whose commentary is a useful
guide to the interpretation of the Convention, and indicates the
extent to which different articles of the Convention reflect the pre-
existing customary law and the agreed views of state. VCLT
applies only to treaties after entry into force. ILC made a caveat in
Article 3 that the entry into force of the VCLT should not be
interpreted in a way as to invalidate all other agreements.
A treaty per VCLT is “an international agreement concluded
between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related
instruments, and whatever its particular designation”. This
definition excludes agreements between states which are
governed by municipal law and agreements between states which
are not intended to create legal relations at all.
14
The point here is that there is no hard and fix rule in whether it is
considered a treaty or not, but what is settled is, if you want to apply
the VCLT to that dispute or agreement then that agreement must
comply with the elements found in Art. 2 (1), par. A, otherwise it
will be governed by other regimes particularly a CIL on the law of
treaties.
When confronted with a question of “what is a treaty”, you may
answer in the following manner:
A treaty, for purposes of the application of the provisions of VCLT,
is (definition of treaty in VCLT). There are international agreements
which can still be called treaties between non-state actors but
governed by a different convention. Example is Convention of 1986
on Treaties entered into by states and international organizations
and as between international organizations. They are also called
treaties but beyond the provisions of VCLT.
Akehurst says that a treaty is not the only means by which a state
can enter into a legal obligation. A unilateral promise is binding in
international law on the state making the promise, if that state
intended its promise to be legally binding.

Elements: Treaties come in various names

1. An international agreement 
 Agreement, pact, understanding, protocol, charter, statute, act,
2. Concluded between States 
 covenant, declaration, engagement, arrangement, accord,
3. In written form 
 regulation and provision.
4. Governed by International law 

Convention—output treaty that is a result of an initiation by an
International Commission
Again, remember that the VCLT’s definition of a treaty is not all-
inclusive. It is just a definition of the kind of treaty that will be
Protocol—amendment to a treaty
governed by the VCLT. As established in the case of Qatar v.
Bahrain, even agreements that are not in conformity with the
Charter—if the treaty operated to create an international
definition of a treaty in the VCLT, may actually be binding,
organization
especially so that the VCLT provided for an important provision in
Article 3, in relation to the definition of a treaty. It states that:
Statute—if the nature of the treaty is to create a court
“The fact that the present Convention does not apply to
Declarations and Accords—general principles subject to
international agreements concluded between States and
specification later on.
other subjects of international law or between such other
subjects of international law, or to international
Treaties may be codifications of already existing CIL or are
agreements not in written form, shall not affect the legal
themselves evidence of the practice of an emerging customary
force of such agreements.”
international law especially in the case of multilateral treaties.
Is an agreement which has the nature of a treaty of a treaty but is
Treaty Law v Law of Treaties
not reduced to writing a “treaty”? Is it binding on state parties to the
agreement? Yes, see Qatar v Bahrain case
TREATY LAW LAW OF TREATIES
Qatar v Bahrain (applicable case to the question) Pertains to internal Talks about body of rules
There was no treaty here involved. Their representatives met substantive content of treaties applicable to treaties in
several times trying to draw a delimitation of their waters the general without looking at the
purpose of which was to conclude a treaty between them. One of substance or substantive
the agreements they entered into, not yet in a treaty during the content of a treaty
negotiation which agreement was entered into in the minutes. It is Between State A and State B, Whether or not a fundamental
a record of what had transpired during their meetings. It stated if State A wants to withdraw change will entitle a state
there that if there is a dispute in their delimitation they will submit it from the treaty and there are from asking that the
to king of Saudi Arabia for resolution and failure of the king of Saudi agreed procedure on how to provisions of a treaty be
Arabia to resolve the dispute within a certain period then the parties do it as contained in the suspended for a time being
will submit themselves to the jurisdiction of the ICJ. Now the king treaty between State A and and there are conditions
of Saudi Arabia failed to resolve the conflict between Qatar and State B, the resolution of that before a state be allowed to
Bahrain, so one party went to the ICJ, the other questioned the issue would be the province do that, is a question
jurisdiction of the ICJ on the basis that there is no convention or of treaty law governed by the law of
treaty where they have submitted the dispute to the ICJ. The ICJ treaties
said that they have agreed in the minutes. See the minutes are
binding because that was meant to be governed by international
law. It was in writing because the minutes are in written form and it Contract Treaties
says that whatever is its particular designation. The term law-making treaties or contract treaties are used by
authors to distinguish between treaties that cannot be the source
of international law or cannot be a law that will generate

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international law. However, the ILC is not definite on whether the countermeasure. 

definition should apply to both law-making treaties and contract
treaties. Nevertheless, it would be best to assume that the Has a consideration and
definition of a treaty in the VCLT should be a treaty that refers to element of reciprocity; short-
law-making treaties since it requires the element that it should be lived and temporary
governed by international law.
State would say that it will not State would say that it is not
Australia entered into an “agreement” with the Philippines perform its obligations bound to perform its oath
stipulating that the Australian Naval Forces leased a Philippine because the other party because the other party did
Government’s patrimonial property in Subic for its naval and breached the obligation. But not perform its oath. Since that
military exercises in the Philippines for 5 years in the amount of the non-performance was not state is invoking reciprocity,
P10M. Is this a “treaty”? Why or why not? simply because of the breach chances are it may be
For purposes of applying the VCLT, the agreement is not a treaty but because it is the characterized as contract
because it does not satisfy the 4th element that it has to be countermeasure. When you treaty.
governed by international laws. Although it can be called a bilateral invoke countermeasure,
treaty, the rules that should apply in this case are municipal laws you’re treating the treaty as a
of the Philippines, unless this agreement specifically provides that law-making treaty because
it will be governed by international law. In this case, Civil Code may invoking it involves invoking
apply. the provisions of the VCLT.

Reasons why it is not governed by international law: Parties to a Treaty

1. The term is five years – which means it is temporary 

2. 10 million is received in exchange of allowing the use of
patrimonial 
property – this means it is reciprocal
obligation which means a particular obligation is to be
performed and therefore the treaty will generate a
conduct only on the basis of reciprocity 

Remember, a treaty can exist with or without a
consideration.
That is what we call contract treaty. This is not the kind of treaty to
be governed by international law because by the nature of the
contract, it is to be governed by municipal law, not unless parties
provide that it will be governed by international law since it is a
contract treaty anyway.
Law-making Treaty v Contract Treaty
Difference between a signatory and a party in the treaty (and DBL
added contracting state)
Signatory—state signs treaty, either by the head of state or head
of government, or anyone with full authority
Party—treaty has already entered into force that it becomes
binding upon them; expresses its consent to be bound; usually to
be a party, there needs to be Ratification, Acceptance, Approval
and Accession, as required in the domestic law of the state;
Note: WON the treaty has entered into force already, then that is
determinative when it becomes binding upon all states but if the
state already ratified (and etc.) then it is considered a contracting
state already; so whether or not the treaty has already entered into
force, if the state already ratified, accepted, approved or acceded,
the state is already considered a contracting state

LAW-MAKING TREATIES
Operate as binding rules,
similar to statutes
Imposes the same obligations
on all the parties to the treaty
and seek to regulate the
parties’ behaviour over a long
period of time
Purpose is to conclude an
agreement on universal
substantive legal principles; to
regulate conduct
Governed, intended to be
governed by international law.


Regardless of whether the
other party performs the
obligations incumbent upon
that party, the other party is
still duty bound. The only
situation where it will not be
duty bound is when it invokes
one of the grounds precluding
state responsibility, like a valid
CONTRACT TREATIES
Not sources of international
law, but merely legal
transactions
Treaties which resemble
contracts (reciprocal)
Observance of the contract
depends on both contracting
parties (performance of one
depends on the other’s) and
their willingness to observe
Could be governed by another
regime, not necessarily public
international law, but it could
be domestic law, depending
on what’s found in the treaty.

Performance of an obligation
is based upon the
performance of the obligation
of the other. It is similar to a
contract
Contracting state— state has already ratified pending entry into
force of treaty
What is the significance of knowing the differences?
When the state is still a signatory, then the substantive content of
the treaty will not yet govern the state’s conduct (e.g. Exit Rules do
not apply). When the state is a contracting state, then the state is
duty-bound not to perform acts that will render it incapable to
perform the object and purpose of the treaty. When the state is
already a party, (so the treaty has entered into force already) the
provisions of the treaty will already enter into force in their relations.
Remember, when there are no Exit Rules found in the treaty, it is
understood that the state cannot withdraw unilaterally. You need
the consent of all other parties. If they will not consent, the only
way for the state to exit is to invoke the grounds to terminate a
treaty. But, if the Exit Rules are incomplete, the provisions in the
VCLT will fill the void.
Difference between “signature” from “ratification”
Signature—the representative of the State signs the document
Ratification—may or may not make the treaty binding upon the
state; may or may not make the treaty enter into force;
2 kinds of Ratification:
Domestic level—when the representative of the state signs the
treaty, in the Philippines that it is still not binding. The treaty still

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needs to be ratified by the President with the concurrence of the
Senate
International level—may mean 2 things:
- bilateral treaty—be in the form of exchange of the
instruments of ratification
- multilateral treaty—deposit the instruments of
ratification to a designated depositary (designated
depositary is usually the Secretary of UN)
It is important to determine whether it is ratification in the domestic
or international level for the purpose of knowing the exact and
precise moment when the treaty has entered into force.
Capacity to enter into treaties
Article 6, VCLT – States have the inherent capacity to enter into
treaties. This is a customary international law
According to ILC, it is not even necessary to put in Article 6 that
states have inherent capacity to enter into treaties. Other than
1933 Montevideo Convention on the rights and duties of states, the
moment a group of individuals will qualify as a state, one of the
inherent rights of a state is the right to enter into diplomatic
legation/diplomatic relation.
What is the difference between diplomatic relations and consular
relations?
Diplomatic relations – established for purposes of regulating the
political/governmental relationship between the two states.
Ambassadors and members of the diplomatic mission are in
foreign territories to protect the political and governmental interests
of the sending state.
Consular relations – established for non-governmental functions of
the state, i.e. commercial and private functions. Example, for
marriage abroad, one is required to get a certificate showing that
you have the capacity to enter into such a relation. Because the
right to contract marriage is usually governed by national law.
Diplomatic Legation
Since states are juridical entities, the formation of treaties will have
to be done by their agents who are individuals.
Provisions of municipal law regarding competence to conclude
treaties
The constitutions of many countries provide that the head of state
may not conclude (or, at least, may not ratify) a treaty without the
consent of a legislative organ. What happens if the head of state
disregards such a rule?
One school of thought says that the treaty is void, although this
conclusion is sometimes limited to cases where the constitutional
rule in question is well known
Another school of thought considers that the treaty is valid, but
some supporters of this school are prepared to make exceptions
when one party to the treaty knew that the other party was acting
in breach of a constitutional requirement.
Who is authorized to represent the state?
Article 7(1) of the Vienna Convention provides:
“A person is considered as representing a State for the
purpose of...expressing the consent of the State to be
bound by a treaty if:
(a) he produces appropriate full powers; or 

(b) it appears from the practice of the States concerned
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or from 
other circumstances that their intention was
to consider that person as representing the State for
such purposes and to dispense with full powers.”

“Full powers” means a document emanating from the competent
authority of a State designating a person or persons to represent
the State for negotiating, adopting or authenticating the text of a
treaty, for expressing the consent of the State to be bound by a
treaty, or for accomplishing any other act with respect to a treaty.
It must refer to all stages (that’s why it’s called full)
The powers in pleins pouvoirs must be stated expressly as to cover
authority to negotiate, adopt, authenticate, expressing the consent
and accomplishing any other act, if any. So, it must be specific on
what power because it is possible that one bringing the pleins
pouvoirs is only limited to a particular stage.
Two kinds of Full Powers:
1. General – covers adoption of the text of the treaty,
signature, and ratification and all other stages needed in
the process
2. Specific – specifies authority of representative to a
particular stage of proceeding, example if it is only to
adopt the text of the treaty but it is not authorized to sign
or submit instruments of ratification
Exceptions:
Apparent Authority—Article 7 (1) (b), VCLT –
If it appears from the practice of the States concerned or from other
circumstances that their intention was to consider that person as
representing the State for such purposes and to dispense with full
powers.
Implied Authority—Article 7 (2), VCLT –
1. Heads of State, Heads of Government and Ministers for
Foreign Affairs, for the purpose of performing all acts
relating to the conclusion of a treaty 

2. Heads of diplomatic missions, for the purpose of adopting
the text of a treaty between the accrediting State and the
State to which they are accredited (this representative is
constant where an ambassador is for any or all
international organizations or conferences)
3. Representatives accredited by States to an international
conference or to an international organization or one of its
organs, 
 for the purpose of adopting the text of a treaty
in that conference, organization or organ. (this
representative is “special” where the state will appoint a
special representative for a specific conference or
international organization)
For B and C, full powers is still needed in order to represent the
state for all other stages other than adoption of the text of the
treaty.
This becomes implied authority because there is some sort of
representation that one had been duly authorized. It may be the
case of one appearing before an international conference for
several stages of the formation process and so even in other
conventions or treaties, he had represented the state. It can be
impliedly assumed that he has the authority. Article 7 (2)
enumerates three groups that are deemed to have been authorized
but there is a group authorized for all stages and there are groups
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that are authorized only for particular stages.
Effect if Treaties are entered into by persons not authorized to
represent a state
Article 8 provides:
“An act relating to the conclusion of a treaty performed by
a person who cannot be considered under article 7 as
authorized to represent a State for that purpose is without
legal effect unless afterwards confirmed by that State.”
There are many ways of confirmation, either implied (state itself
invokes the treaty against another state) or expressly (in writing or
any other formal process)
Specific restrictions on authority to express the consent of a state
Although a person may be authorized to enter into a treaty on
behalf of a state, in accordance with Article 7, it sometimes
happens that a specific restriction is imposed on his authority.
Article 47 provides:
“…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”
Signatory v Party
What is the difference between a “signatory” from a “party” to a
treaty?
 ü Party – pacta sunt servanda applies therefore, withdrawal must
Where parties to the treaty agreed that the method of expressing
consent to be bound is mere signature, there is no distinction
between a signatory and a party.
17
There is a period from signing to becoming a party, during
which time, there is CIL governing all signatories. What is not
clear though is the threshold as to when a particular act defeats
the object and purpose of the treaty and there should be no
fixed rule on the matter because:
- It varies from one treaty to the other. It depends on
the nature of the treaty, the difficulty of locating the
object and purpose of the treaty. 

- There is a need to analyse the degree of the act
performed by the signatory state. 

No specific rule but the threshold is it should not defeat the object
and purpose of the treaty until it has expressed its intention not to
be bound.
ü Party – pacta sunt servanda applies. Party is obliged to comply
with the substantive obligations found in the treaty.
As to manner of withdrawal from the treaty
ü Signatory – can withdraw anytime. There no required
procedure nor grounds.
TN: There is no required procedure as to how a signatory to a
treaty expresses its intention not to be bound. Example is when US
withdrew from the Rome Statute in 2002. There was no required
form for as long as intent not to be bound by the treaty is
expressed.
be in accordance with the treaty exit rules. Otherwise, it can
invoke CIL such as impossibility of performance, rebus sic
stantibus, material breach.

Where, however, the parties to the treaty agreed that signing is one In the law of treaties, it is what we call Exit Provisions and there
and expressing consent to be bound may be done in other forms are grounds which would allow withdrawal from a treaty.
other than signing, which could be in the form of ratification, When a state, party to a treaty, wants to get out of the treaty, it can
approval or accession, exchange of instruments of ratification, and be done in at least two ways:
any other means that the party could agree – In this case, signatory
is different from a party in the following manner: - Without a ground – there are exit provisions in the
- As to the meaning 
 treaty which allow a party to get out without
- As to the legal obligations 
 necessarily invoking a ground if the parties agree that
- As to manner of withdrawal from the treaty 
 there is such a way. This would usually require some
minimum period of notification. If there is no
As to the meaning stipulation to the contrary, normally, a state is
ü Signatory–signatory pertains to a state where its required to notify at least 12 months before
representative, duly authorized to do so, has signed the withdrawing, renouncing, or getting out of the treaty.
treaty and the signature is not a form of expressing consent 

to be bound. 
 - With a ground – another way of getting out of the
ü Party – party signifies more than signing. A state becomes a treaty without invoking the exit rules is to get out of
party when it has expressed its consent to be bound the treaty on the basis of certain grounds already
through forms agreed upon other than signature, and where recognized by the VCLT and CIL. It is VCLT and CIL
the treaty already enters into force insofar as state party is because VCLT is not just a codification of CIL, but
concerned. 
 also an evidence of a progressive development of
CIL. 

As to the legal obligations Signatory Party
ü Signatory–a State which signed but is not yet a party to a Meaning A state signed the A state which has
treaty which has not yet entered into force has the obligation treaty but the consented to be
not to defeat the purpose and object of the treaty. signature is not a bound and for
form of expressing which the treaty is
While a signatory to the treaty may not be bound yet by the consent to be in force
substantive content of a treaty, it is, however, mandated by CIL bound.
in Article 18 of VCLT which mandates that any state which has Legal obligations Obligation not to Pacta sunt
signed the treaty is also duty bound to refrain from performing defeat the purpose servanda applies
any acts that will defeat the object and purpose of the treaty and object of the
until it expresses its intention not to be bound or decided to treaty. (Art 18
withdraw or not become a party to the treaty. VCLT)
Manner of Can withdraw Withdrawal must

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withdrawal from anytime. There is be in accordance
the treaty no required with the treaty exit
procedure nor rules or CIL rules.
grounds.
Application of VCLT
Any chapter on treaties will really have to be law of treaties instead
of the Vienna Convention on the Law of Treaties because the
Vienna Convention on the Law of Treaties is both a codification of
CIL and a progressive development of CIL. Meaning, there are
provisions which at the time when VCLT came into force, were not
yet considered CIL but were hoped by the ILC to develop into CIL.
The VCLT entered into force in 1980, if states have practiced the
norm and that there are quite a number of parties to the Vienna
convention on the law of treaties that would establish the principle
of generality, the principle that is almost uniform and so widely
practiced by states, then so probably that principle that used to be
a progressive CIL in 1980’s must have already ripened into CIL at
present time.
It is important to know the nature of VCLT because there are states
that are not party to the VCLT. So if these parties are not part of
the VCLT and these states entered into certain treaties, what will
govern their relationship? It is still the corpus of the law of treaties
that partakes of the nature of CIL. The way to understand the
characteristics of the law of treaties would be to answer some
questions about it.
What is the best source of interpretation of the VCLT?
The travaux preparatoires was carried out by the ILC so its
commentary is one of the best sources of interpretation of the
VCLT.
Conclusion and Entry into Force of Treaties
Adoption of the text of a treaty
Article 9 of the 1969 Vienna Convention provides:
1. Unanimity Rule—The adoption of the text of a treaty
takes place by the consent of all the States
participating in its drawing up except as provided in
paragraph 2. 
 (a) the treaty provides that signature shall have that effect;
2. 2/3 Rule—The adoption of the text of a treaty at an
international conference takes place by the vote of
two-thirds of the States present and voting, unless by
the same majority they shall decide to apply a
different rule. 
 expressed during the negotiations.
The adoption of the text does not, by itself, create any obligations.
A treaty does not come into being until two or more states consent
to be bound by it, and the expression of such consent usually
comes after the adoption of the text and is an entirely separate
process
What is the legal significance of adoption of the text of treaty?
After adoption of the text, the treaty will be prepared in final form,
at which point it is usually “authenticated”. (See Art 10, VCLT)
The adoption of the text of the treaty governs the subsequent
stages in the treaty formation. In other words, the moment the
treaty is adopted, then the conditions of that treaty will govern the
subsequent stages. For example, after adoption, states will
express their consent to be bound. And so we ask the question,
how do they do this? We now look at the text of the treaty as
adopted. The text of the treaty will provide the manner of
expressing the consent to be bound.
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Basically adoption kay ang states mufinalize sa final text of the
treaty ready for ratification.
Non-retroactivity of the present convention
Article 4 of the VCLT
Without prejudice to the application of any rules set forth
in the present Convention to which treaties would be
subject under international law independently of the
Convention, the Convention applies only to treaties which
are concluded by States after the entry into force of the
present Convention with regard to such States.
Entry into force: January 27, 1980
Consent to be bound by a treaty
Article 11 of the Vienna Convention provides:
The consent of a State to be bound by a treaty may be
expressed by signature, exchange of instruments
constituting a treaty, ratification, acceptance, approval or
accession, or by any other means if so agreed.
Traditionally, signature and ratification are the most
frequent means of expressing consent.
Strictly speaking, ratification occurs only when instruments of
ratification are exchanged between the contracting states, or are
deposited with the depositary. In the case of a multilateral treaty, it
is obviously impractical to exchange instruments of ratification
between a large number of states, and so, instead, the treaty
usually provides that instruments of ratification shall be deposited
with a state or international organization which is appointed by the
treaty to act as the depositary. The subject matter of a treaty has
little bearing on the question whether it requires ratification.
Treaties usually state expressly whether or not ratification is
necessary, and this makes it difficult to know what rule to apply if
the treaty is silent. The Vienna Convention adopts a ‘neutral’
attitude; everything depends on the intentions of the parties, and
Articles 12(1) and 14(1) of the Convention provide guidelines for
ascertaining the intentions of the parties. Article 12(1) provides:
The consent of a State to be bound by a treaty is expressed
by the signature of its representative when:
(b) it is otherwise established that the negotiating States were
agreed that signature should have that effect; or 

(c) the intention of the State to give that effect to the signature
appears from the full powers of its representative or was


Article 14(1) provides:
The consent of a State to be bound by a treaty is expressed
by ratification when:
(a) the treaty provides for such consent to be expressed by
ratification; 

(b) it is otherwise established that the negotiating States
were agreed that ratification should be required; 

(c) the representative of the State has signed the treaty
subject to ratification; or 

(d) the intention of the State to sign the treaty subject to
ratification appears from the full powers of its
representative or was expressed during the negotiations.


It should also be added that performance of a treaty can constitute
tacit ratification. In particular, if a state successfully claims rights
under an unratified treaty, it will be estopped from alleging that it is
not bound by the treaty.
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In addition to signature and ratification, a state can also become a
party to a treaty by accession (otherwise known as adhesion or
adherence). The difference between accession, on the one hand,
and signature or ratification, on the other, is that the acceding
state did not take part in the negotiations which produced the
treaty, but was invited by the negotiating states to accede to
it. Accession is possible only if it is provided for in the treaty, or if
all the parties to the treaty agree that the acceding state should be
allowed to accede.
Summary:
The traditional methods of expressing consent to a treaty are
(Article 11, VCLT):
(1) signature
(2) exchange of instruments
(3) ratification
(4) acceptance
(5) approval
(6) accession
(7) other means if so agreed
However, acceptance or approval is sometimes used nowadays in
place of ratification (or, alternatively, in place of accession). In
particular, they give a state time to consider a treaty at length
before deciding whether to be bound. The main reason for the
popularity of these terms is that they enable a state to evade
provisions in its own constitution requiring the consent of the
legislature for ratification.
The moment they express their consent to be bound, are they
already bound by the substantive provisions of the treaty?
Not yet, but because of their consent, they are obliged not to defeat
the purpose of the treaty unless the text provides that the
expression of consent to be bound signifies the entry into force. In
which case, they are bound by the provisions. In the meantime,
they are required to observe the mandate in Article 18 to refrain
from acts which would defeat the purpose of the treaty.
Article 18, VCLT- Legal obligations before treaty enters into force
A State is obliged to refrain from acts which would defeat
the object and purpose of a treaty when:
1. it has signed the treaty or has exchanged
instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall have
made its intention clear not to become a party to the
treaty
2. It has expressed its consent to be bound by the
treaty, pending the entry into force of the treaty and
provided that such entry into force is not unduly
delayed. 
 State succession (Clean Slate Doctrine or Doctrine of Tabula
What is meant by “acts which defeat the object and purpose of the
treaty”?
A good threshold to follow is that put forward by Anthony Oust. The
act must render the State incapable in performing the object and
purpose of the treaty when it enters into force.
Do not test the act on the basis of the substantive content but rather
when the treaty enters into force, the object can still be performed.
Is the mere non-conformity already considered defeating the object
and purpose of the treaty?
No. Mere non-conformity with the mandate of the treaty may not
necessarily be a violation of Article 18. The act must render the
State incapable in performing the object and purpose when the
treaty enters into force.
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Entry into force
A treaty normally enters into force as soon as all the negotiating
states have expressed their consent to be bound by it. But the
negotiating states are always free to depart from this general rule,
by inserting an appropriate provision in the treaty itself. The treaty
may provide for its entry into force on a fixed date, or a specified
number of days or months after the last ratification.
When very many states participate in drafting a treaty, it is unlikely
that they will all ratify it, and it is therefore unreasonable to apply
the normal rule. Accordingly, such a treaty often provides that it
shall enter into force when it has been ratified by a specified
number of states. Even when the minimum number of ratifications
is reached, the treaty is, of course, in force only between those
states which have ratified it; it does not enter into force for other
states until they in turn have also ratified it.
A treaty can apply retroactively, but only if the contracting states
clearly intend it to do so.
What about the third states who did not take part in the negotiation?
By accession, a third state which did not take part in the negotiation
consents to be bound by the treaty and ratified. Accession is
possible only if it is provided for in the treaty.
Reservations
Article 2 (1)d of the VCLT—A unilateral 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 that State.
A state may be willing to accept most of the provisions of a treaty,
but it may, for various reasons, object to other provisions of the
treaty. The effect of a reservation depends on whether it is
accepted or rejected by the other states concerned. A reservation
to a bilateral treaty presents no problems, because it is, in effect, a
new proposal reopening the negotiations between the two states
concerning the terms of the treaty. In the case of a multilateral
treaty the problem is more complicated, because the reservation
may be accepted by some states and rejected by others.
The advisory opinion of the International Court of Justice in the
Genocide case said “a State which has made...a reservation which
has been objected to by one or more of the parties to the
[Genocide] Convention but not by others, can be regarded as a
party to the Convention if the reservation is compatible with the
object and purpose of the Convention”
Rasa)
When we study state succession, one privilege of a successor
state is not to accept treaties entered into by predecessor state.
When US succeeded Spain in relation to Philippines, US
announced that it will not honor the treaties entered into by Spain
affecting Philippines prior to its succession. This is the principle of
tabula rasa or the clean slate doctrine. That is only applicable to
state succession.
There is a different meaning to government and state succession
which we will discuss later on. It may be that there is only a
government succession and not a state succession. There is
succession when there is change in sovereignty. There will be
different rules because we will distinguish peaceful and violent
transition of government.
So this is a good development in studying reservation because a
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successor state can make a reservation. Even before 2011, there
is already a mention of successor state to make a reservation. It is
not any more take it or leave it on the part of successor state.
Problem:
States A, B, C, D and E entered into a treaty. State E made a
reservation as regards one particular article while all the rest
agreed to the treaty without reservations.
Is State E considered a party? If one opposes the reservation but
the others accepted it, will it matter? Does it require unanimity?
The nature and the date of the treaty are relevant.
Nature

There are treaties which do not allow reservations. When the treaty
itself provides and for those kinds of treaties dealing with human
rights as in the case of the Genocide Convention.
Date
 convention. If the objector deems the reservation as
The date is also equally relevant to determine whether the rule in
the Genocide Convention Advisory Opinion in 1951 will apply.
Because before 1951, the rule was unanimity. All must accept,
otherwise the reserving state will not become a party to the treaty.
The Genocide Convention opened a new paradigm as far as
reservation is concerned. The circumstances when the Genocide
Convention was negotiated and then ratified were vital in a change
from the rigid unanimity rule to a more liberal rule on reservation.
Genocide Convention
There were acts of genocide prevalent at that time. The convention
was initiated by the United Nations and it involved a ius cogens
norm and this propelled a more liberal approach. The Convention
did not permit any reservation and so states questioned this saying
that there should be reservations.
One of the issues here is the relation of the state which made a
reservation to other states and its legal effects.
The Genocide Convention prohibited genocide and provided that it
would be declared a crime. Not allowing reservation will promote
the purpose and objective of the treaty. Between the unanimity and
the liberal approach in the advisory opinion, which will promote the
purpose of the treaty?
The problem with the unanimity rule is that if one of the negotiating
states objects to the reservation of a state, the reserving state does
not become a party to the treaty. The moment the reserving state
commits genocide, the state cannot be charged with state
responsibility under a treaty but only under customary international
law regime.
So it is important to take note of the date, whether it happened
before or after the advisory opinion on the genocide convention.
The VCLT now concurs with the advisory opinion. In VLCT, you do
not need to distinguish if it involved genocide or jus cogens norm.
Two questions are posed in the reservation of the genocide
convention:
1. Can a reserving state be considered a party to the
convention while still making the reservation when such
was objected to one or more parties to the convention but
not by others?
The reserving state may be regarded as a party to the
convention if the reservation was compatible with the
object and purpose of the convention.
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Let’s go back to our problem. Assume that A and B
accepted the reservation of State E, C and D objected,
what is the answer to the question? Can State E become
a party to the treaty? Yes. State E can become a party to
the treaty despite lack of unanimity provided that the
reservation is not incompatible with the object and
purpose of the convention.
2. Assuming the answer is affirmative, what is the effect of
the reservation as between the reserving state as
between parties accepting and those objecting it?
(The voting was not conclusive, it was 7-5)
Each state objecting to the reservation will or will not, on
the basis of the individual appraisal with the limits of the
criterion of the object and purpose of the convention,
consider the reserving state to be a party to the
incompatible with the object and purpose, it can consider
the reserving state as not a party to the convention.
Therefore, that reserving state may not as well demand
from the objecting state compliance of the article subject
of the reservation. Treaties here dealt on the threshold
that it should depend largely on the evaluation of the
objector whether or not the reservation is compatible with
the object and purpose of the convention and this is
another area where it becomes more subjective rather
that objective. This suggests that we cannot objectively
determine the object and purpose of the convention.
Apparently that is the case here.
Regardless of the basis for the objection, whether
anchored on other grounds aside from judging if such
reservation is incompatible to the object and purpose of
the treaty, still the reserving state shall not be considered
a party to that objecting state. This is on the basis of the
need to uphold sovereignty of states. What governs treaty
is consent precisely because we are dealing with
sovereign states. That is the approach even to objections
to reservations not based on compatibility or
incompatibility.
When is reservation not allowed?
Article 19, VCLT – A state may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a reservation unless:
1. The reservation is prohibited by the treaty 

2. The treaty provides that only specified reservations,
which do not 
include the reservation in question, may be
made 

3. The reservation is incompatible with the object and
purpose of 
the treaty. 

It is not allowed if the reservation is prohibited by the treaty. The
ICCPR is a classic example of a treaty not allowing reservation.
The Rome Statue for example does not allow reservations.
Development of a Treaty (How a Treaty is formed)
1. Proposal to draft a Treaty
2. Negotiation and drafting of the terms
3. Adoption and Authentication of the text of the Treaty by
the negotiating states
4. Signature/ expression of consent to be bound by the
Treaty by the individual states
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5. Ratification of the treaty by the individual states
6. Exchange of Instruments of Ratification and Entry into
force of the Treaty
7. Accession to the Treaty by states wishing to join after its
entry into force, if any
Proposal to draft a Treaty
Formation of a treaty can be initiated in various ways. A treaty can
be proposed in the following manner:
1. It can be initiated by one state asking another state that
they will enter into a treaty. There are two possibilities:
Ø They will meet and try to negotiate the specific
provisions of the treaty, or
Ø The other state may simply be asked to sign a
ready-made treaty by the other state
2. A treaty may be formed because of an international
conference like international conferences of the members
of ASEAN states (10 members), Conference or a Summit
of Southeast Asian nations, conference by members of
NATO (North Atlantic Treaty Organization) for mutual
military action. In these conferences, there are three
possibilities:
Ø One state may propose that a treaty may be
drafted and they will agree on the voting later on;
or 
 Ratification is to be understood in two contexts: Domestic level and
Ø A member of UN, in a plenary, will propose for a
drafting of multilateral treaty or convention and if
General Assembly will approve the motion,
normally, the name of the treaty will carry the
word convention. Treaties that carry the name
conventions are UN-initiated. 
 Reps, depending on the domestic law of the state concerned.
Ø A non-governmental organization may draft a
convention or treaty and submit it either to a
conference or to a state and offer it to other
member states for signature and discussion.
Examples are the 1949 Vienna conventions and
its three Protocols in 1977 and in 2005, which
have been a product of the work of ICRC
(International Committee on the Red Cross). It
was initiated/drafted by ICRC (a NGO),
submitted to the plenary and then UN agreed to
make it a treaty/convention and it was approved.


Is there legal significance as to how it was initiated?
Yes. For example, in the interpretation of the treaty, it is important
to know how it was initiated.
If it was initiated by one state and the other state was simply asked
to agree, there’s a possibility to argue that it should be interpreted
as against the initiating state because it was drafted unilaterally.
If the treaty was initiated in an international conference, the
adoption of the text of the treaty would require 2/3 vote, unless
there is a different voting required. If not in an international
conference, vote required is unanimity.
Negotiation and drafting of the terms
What is the importance of knowing what happened during the
negotiation? instruments of ratification, meaning, it will really have to wait for all
It is important to know what happened during the negotiation for
the purpose of knowing the intent. The process of negotiation will
reveal the object and purpose of the treaty for purposes of arguing
along teleological approach. It may also reveal the intent of the
parties and the context under which the treaty had been negotiated
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because you want to use the context in interpreting the letter/text
of the treaty.
What is the difference between treaty interpretation and
constitutional interpretation?
In constitutional interpretation, the first step to interpret a treaty
is going through the text, within the words, their plain and ordinary
meaning because of the assumption that when the framers used
the words or phrase, they are already mindful that these words and
phrases will be analyzed, read by ordinary people and not just
lawyers and judges that’s why we give words its plain and ordinary
meaning.
It is different in international law. The Textualist approach is a
different textualist approach. It is text + context (circumstances
under which the treaty has been negotiated). Text and context
cannot be separated. General rule of interpretation can be found
in Article 31:
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.
Exchange of Instruments of Ratification
International level.
Domestic level
It may be ratification by the President alone or it may be ratification
by the concurrence of Congress, if bicameral, by the House of
International level
It can be done in two ways:

1. Exchange of instruments of ratification

2. Deposit the instruments of ratification to a designated
depository
- Usually done in multilateral treaties because it will be
hard to exchange instruments if there are many
parties
TN: Designated depository is usually the
Secretary of UN
It is important to determine whether it is ratification in the domestic
or international level for the purpose of knowing the exact and
precise moment when the treaty has entered into force. If the treaty
st
provides that it will enter into force upon ratification by the 61
signatory and that ratification that referred to is ratification at the
domestic level, upon proof of ratification at the domestic level, then
it has entered into force among all of them.
Example 1:

100 signatories and the treaty says that it will enter into force as
st st
between all signatories when the 61 signatory ratifies it. Upon 61
ratification, treaty entered into force as among the 100 even if
others have not yet ratified the treaty. That is from the perspective
of international law.
Example 2:

Treaty says that it will enter into force upon the deposit of the
to deposit their ratification instrument with the designated
depository. But that is seldom adopted, otherwise the treaty will
hardly enter into force.
Entry into Force
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Art 24 (2), VCLT – As a rule, a treaty enters into force as soon as
all negotiating states have expressed their consent to be bound by
it, unless otherwise stipulated in the treaty.
Look at the text of the treaty first. If there is no stipulation as to the
date when it enters into force, the default rule applies – when all
states have expressed their consent to be bound.
Effects of a treaty after entry into force
1. Pacta sunt servanda (Art 2, UN Charter) –
- Every treaty in force is binding upon the parties to it
and must be performed by them in good faith.
- Exceptions: Rebus sic stantibus and jus cogens)

(See discussion on relationship between pacta,
rebus and jus cogens)
 The US and the Philippines entered into a treaty. US was granted
2. A party cannot invoke a provision of its domestic law to
evade compliance (Art 27) 
 Guam which is a territory of the US. The US protested saying that
3. Treaties do not prima facie operate retrospectively,
unless a different intention appears (Art 28)
4. A treaty cannot prejudice third states without the latter’s
express consent. (Arts 34, 35)
Accession to the Treaty
There are states which did not participate in the negotiation but
would want to become party and there might be provisions on
accession. The form of accession (as to how the new state will
become a party to the treaty) will also be provided for.
Registration with the Secretariat
Article 102, United Nations Charter –
Every treaty and every international agreement entered
into by any Member of the United Nations after the
present Charter comes into force shall as soon as
possible be registered with the Secretariat and published
by it. 
 rights nor obligations for third states (that is, states which are not
No party to any such treaty or international agreement
which has not been registered in accordance with the
provisions of paragraph 1 of this Article may invoke that
treaty or agreement before any organ of the United
Nations. 
 Art 2 (6), UN Charter – The Organization shall ensure that States
What happens if this is not complied with?
The treaty is still valid, only that it cannot be invoked in any of the
organs of the UN. Thus, if you charge the state of committing an
internationally wrongful act and you charge it with state
responsibility, you go to ICJ but because the treaty is not
registered, you cannot do that.
However, never think that non-registration renders a treaty
unenforceable. If the treaty has compulsory arbitration laws, one
party may compel the other to submit it for arbitration but you do
not need to go to the UN. It is still enforceable. It is only
unenforceable with respect to UN organs.
Relationship between pacta sun servanda, rebus sic stantibus and
jus cogens: into another treaty (sometimes even when the other party to the
When a treaty enters into force, Art 26 of the VCLT comes into
play: pacta sunt servanda, compliance in good faith.
Pacta sunt servanda is the general rule the moment the treaty
enters into force. For a state not to be bound, as exception to pacta
sunt servanda, you may invoke rebus sic stantibus. The
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relationship between pacta sunt servanda and jus cogens is
regardless of level of consent given by parties, if the provision of
the treaty contravenes jus cogens, the provision in treaty is invalid
despite pacta sunt servanda.
Application of Treaties
Territorial Scope of Treaties
Article 29 of the Vienna Convention states: ‘Unless a different
intention appears from the treaty or is otherwise established, a
treaty is binding upon each party in respect of its entire territory.’
This general rule is often altered by a specific provision in a treaty.
Problem:
authority to establish military bases in the Philippines. In like
manner, the Philippines was allowed to establish military bases in
while Guam is a territory of the US, it is not however a State of US.
How will the Philippines respond to such protest? 

Answer:
Go back to Article 29, VCLT. It is important to look at the treaty
whether it excludes Guam, otherwise, the application of the treaty
is deemed to include the entire territory. 

Guam may not be one of the states of the US but it is considered
an incorporated territory. Article 29 of the VCLT is relevant at the
height of pre- decolonization stage where the states entering into
agreement determines the territorial scope and extent of the
application of treaties – including its colonized states. Now it may
be applied to states as part of their territory. Guam is not of the
states of US but is considered a territory under a special regime.
They don’t participate in the elections but its inhabitants are
granted American citizenship.
Treaties and third states
Art 34, VCLT – (The general rule is that) a treaty creates neither
parties to the treaty). But there are exceptions to this general rule,
which are laid down in detail in Articles 35–7 of the Convention.
Art 296) of the UN Charter (which is a treaty) announces a policy
which the UN must follow in relations with non-members.
which are not Members of the United Nations act in accordance
with these Principles so far as may be necessary for the
maintenance of international peace and security.
It is sometimes suggested that Article 2(6) of the United Nations
Charter (which is a treaty) imposes obligations on states without
their consent. In reality, Article 2(6) does not even purport to
impose obligations on non-members; it merely announces the
policy which the United Nations will follow in its relations with non-
members.
Application of successive treaties relating to the same subject
matter
Article 30 of the Vienna Convention lays down detailed rules to
deal with instances when a party to a treaty subsequently enters
new treaty are not parties to the previous treaty) relating to the
same subject matter, and that the provisions of the two treaties are
mutually inconsistent.
Article 30, VCLT
1. Subject to Article 103 of the Charter of the United Nations,
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the rights and obligations of States parties to successive
treaties relating to the same subject-matter shall be
determined in accordance with the following paragraphs.
Article 103, UN Charter:
In the event of a conflict between the obligations of the
Members of the United Nations under the present Charter
and their obligations under any other international
agreement, their obligations under the present Charter
shall prevail. 
 the dispute, then such could be applied. The date is
2. When a treaty specifies that it is subject to, or that it is not
to be considered as incompatible with, an earlier or later
treaty, the provisions of that other treaty prevail. 
 application, but because as ruled in Nicaragua v. US, a
3. When all the parties to the earlier treaty are parties also
to the later treaty but the earlier treaty is not terminated or
suspended in operation under article 59, the earlier treaty
applies only to the extent that its provisions are
compatible with those of the later treaty. 

4. When the parties to the later treaty do not include all the
parties to the earlier one: (a) As between States parties
to both treaties the same rule applies as in paragraph 3;
(b) As between a State party to both treaties and a State
party to only one of the treaties, the treaty to which both
States are parties governs their mutual rights and
obligations. 

5. Paragraph 4 is without prejudice to article 41, or to any
question of the termination or suspension of the operation
of a treaty under article 60 or to any question of
responsibility which may arise for a State from the
conclusion or application of a treaty the provisions of
which are incompatible with its obligations towards
another State under another treaty. 
 Article 31, VCLT – General Rule of Interpretation
A treaty shall be
Are there treaties preferred over all other treaties or do we go by
incompatibility test?
Yes. The UN Charter, by virtue of Article 103 (see above)
The members of the UN have already agreed and committed
among themselves that in case their obligations under different
treaties conflict with their obligations under the UN Charter – the
UN Charter shall prevail.
That may be problematic for those who are not parties to UN
Charter, but even then the UN Charter provides that those who are
non-members are bound to behave to maintain peace and order
and security of all member states.
May the rules in the VCLT apply in the following:
1. A dispute involving a “treaty” between State A and the
IMF-World Bank
Answer: Yes, the rules, not really the VCLT provisions
themselves that are already CIL can apply. This should
be treated carefully because the question states “may the
rules found in the VCLT be applied” and not “may VCLT
be applied”. If you say “rules”, you have to first examine
what particular rule are you going to apply to the “treaty”.
between State A and the IMF-World Bank. If you look at
VCLT, it is a codification of customary international law on
the law of treaties. The codified CIL found in the VCLT will
apply to treaties whether or not they belong to the scope
of the VCLT
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2. A dispute involving a 1960 treaty between State A and
State B
Answer: Yes. A rule embodied in the VCLT may already
be a CIL even before the VCLT codified it,
notwithstanding the fact that the VCLT provides for non-
retroactivity (covers only from 1980 onwards). Hence, if a
rule had already been universally practiced and accepted
even before 1980, and is already existing at the time of
relevant in order to know if the VCLT applies to it. If the
rule is of customary international law character, it may
actually be applied not because VCLT is given retroactive
customary international law will not lose its character of
being CIL even if it had been codified in a treaty or
convention. If rule found in VCLT has not attained CIL
status, it cannot be applied to the 1960 treaty between
State A and State B.
3. A dispute involving 1995 treaty between State A and
State B which are not parties to the VCLT
Answer: Yes, the basis may not be the VCLT, but the CIL
embodied in it. CIL applies to all States whether VCLT
party or not unless that state is a persistent objector.
SUMMARY:
Rules found in VCLT which have achieved customary international
law character may be applied in treaties concluded before the
VCLT entered into force and even between states and non-states,
parties or not to the VCLT.
Interpretation of Treaties
General Interpretation of Treaties
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.
1. Text (ordinary meaning)
2. Context

3. Object and purpose
Art 31 gives three methods of interpretation and be aware that CIL
requires the application of all three methods in one setting. It is not
the same statutory construction we apply in local laws. In
international setting, we combine all three – text, context, object
and purpose.
Supplementary Means of Interpretation
If there is still ambiguity or unreasonableness, resort to the
supplementary means of interpretation (Art 32):
1. Preparatory works (Travaux perpetoire)

2. Circumstances of its conclusion (contemporaneity)
Is one approach preferred over the other?
There is no definitive answer but we can be guided by some
pronouncements of authors and cases. In some cases, object and
purpose is applied or the context. If application of these
approaches will yield to ambiguity or unreasonableness, and then
we can resort to supplementary methods of interpretation
Validity and Continuance in Force of Treaties
Ways by which a state party to a treaty may no longer be bound by
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the treaty: A violation is manifest if it would be objectively evident to any State
1. Withdrawal or renunciation 
 conducting itself in the matter in accordance with normal practice
2. Invalidity of treaty – this presupposes that the treaty is and in good faith.
defective 

3. Termination of treaty – treaty is valid but may be If the government disregards constitutional requirement that our
terminated 
based on valid grounds 
 treaty be ratified by President and concurred with Senate – this is
rule of fundamental importance. Thus, if not complied with, the
Article 42, VCLT – treaty may be invalidated on the ground because of improper
1. The validity of a treaty or of the consent of a State to be consent.
bound 
by a treaty may be impeached only through the
Specific restrictions on authority to express the consent of a
application of the present Convention. 

state
2. The termination of a treaty, its denunciation or the Although a person may be authorized to enter into a treaty on
withdrawal of a party, may take place only as a result of behalf of a state, in accordance with Article 7, it sometimes
the application of the provisions of the treaty or of the happens that a specific restriction is imposed on his authority; for
present Convention. The same rule applies to suspension example, he may be instructed not to enter into a treaty unless it
of the operation of a treaty. 
 contains a particular provision to which his state attaches
importance
Invalid Treaties
What happens if he disregards such restriction?
Article 42(1) of the Vienna Convention provides: Article 47, VCLT –

The validity of a treaty or of the consent of a State to be If the authority of a representative to express the consent
bound by a treaty may be impeached only through the of a State to be bound by a particular treaty has been
application of the present Convention made subject to a specific restriction, his omission to
observe that restriction may not be invoked as invalidating
This is to prevent states attempting to evade inconvenient treaty the consent expressed by him unless the restriction was
obligations by making far-fetched allegations that the treaty is notified to the other negotiating States prior to his
invalid. expressing such consent.
Grounds for Invalidity of Treaties Summary:
Articles 46-53, VCLT General Rule: Omission to observe the restriction cannot invalidate
1. Provisions of municipal law regarding competence to the treaty.
conclude treaties 

2. Specific restrictions on authority to express the consent Exception: If other negotiating States have been notified of the
of a state 
 restriction prior to his expressing such consent
3. Error 

4. Fraud 
 Authorized Representatives
5. Corruption of a representative of a State 
 The right to legation is a CIL – the right to send diplomatic
6. Coercion of a representative of a State 
 representatives abroad. Since states are legal persons, they are
represented by their agents.
7. Coercion of a state by the threat or use of force 

8. Treaties conflicting with jus cogens norm 
 Who are considered authorized representatives?
See Article 7, VCLT (page 16)
Note: Distinguish grounds for INVALIDITY and grounds for
TERMINATION (where the treaty is valid but a party can get out of Are there persons who are considered authorized representatives
a treaty or be exempt from the performance of an obligation by even without having to produce full powers?
reason of any of these grounds) Yes. Article 7(2), VCLT or those who have Implied Authority—By
virtue of their functions and without having to produce full powers,
Provisions of Municipal Law regarding Competence to the following are considered as representing their State:
Conclude Treaties
A State may not invoke the fact that its consent to be bound by a - Heads of State, Heads of Government and Ministers
treaty has been expressed in violation of a provision of its internal for Foreign Affairs, for the purpose of performing all
law regarding competence to conclude treaties as invalidating its acts relating to the conclusion of a treaty
consent unless that violation was manifest and concerned a rule of - Heads of diplomatic missions, for the purpose of
its internal law of fundamental importance. adopting the text of a treaty between the accrediting
State and the State to which they are accredited
Basically: - Representatives accredited by States to an
General Rule: Article 27— a state cannot invoke its domestic law international conference or to an international
to evade compliance of treaty obligation organization or one of its organs, for the purpose of
adopting the text of a treaty in that conference,
Exception: Article 46 organization or organ
1. The internal law that can be invoked as permitting non-
compliance of treaty obligation must be of fundamental Effect of Ultra Vires Act
importance Article 8, VCLT
2. The violation of that internal law, regarding to the
competence to conclude treaties must be manifest General rule: An act relating to the conclusion of a treaty performed
by a person who cannot be considered under Article 7 as
When is a violation said to be manifest? authorized to represent a State for that purpose is without legal

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effect.
The performance of functions by a representative outside of
authority (ultra vires), like he was authorized only to adopt but he
went on to sign the treaty, would lead to the act not binding the
state as if it has never been signed.
Exception: If subsequently confirmed by the State
Mistake or Error
1. A state may invoke an error win a treaty as invalidating its
consent to be bound by the treaty if the 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. 

2. Paragraph 1 shall not apply if the State in question
contributed by its own conduct to the error or if the
circumstances were such as to put that State on notice of
a possible error. 
 which comes to the same thing.
3. An error relating only to the wording of the text of a treaty
does not affect its validity; Article 79 then applies. 
 vitiating factor as invalidating the treaty; the effect of this
Preah Vihear Temple case
Requisites of error:
1. Error is about a fact or situation which was assumed to
exist at the time of conclusion 
 provide that a party challenging the validity of a treaty must notify
2. That fact or situation forma an essential basis of the
consent to be bound of the treaty 

3. Subject matter of the temple case the state invoking the
error must not have contributed to the error. (Doctrine of
Clean Hands) 
 jurisdiction over other disputes on a special conciliation
4. The state had known of the error or would have known of
the error. 

Fraud
If a State has been induced to conclude a treaty by the fraudulent
conduct of another negotiating State, the State may invoke the
fraud as invalidating its consent to be bound by the treaty.
Corruption of a Representative of the State
If the expression of a State's consent to be bound by a treaty has
been procured through the corruption of its representative directly
or indirectly by another negotiating State, the State may invoke
such corruption as invalidating its consent to be bound by the
treaty.
Coercion of a representative of a state
Article 51 provides that the expression of a state’s consent to be
bound by a treaty when procured through coercion of its
representative through acts or threats directed against him shall be
without any legal effect.
What if the coercion is on the state and not on the representative?
Will it invalidate the treaty?
 I.
Yes, as provided by Article 52 and it is tantamount to violation of
the principle of non-intervention.
Coercion of a state by the threat or use of force
Article 52 of the Vienna Convention provides:
“A treaty is void if its conclusion has been procured by the
threat or use of force in violation of the principles of
international law embodied in the Charter of the United
Nations.”
But, if a treaty was procured by force at a time when force was not
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illegal, the validity of the treaty is not affected by subsequent
changes in the law which declare that force is illegal and that
treaties procured by force are void
Other causes of invalidity
According to the VCLT, a state’s consent to be bound by a treaty
can be invalidated by:
(1) mistake
(2) fraud of another negotiating state
(3) conflicts with jus cogens
Treaties conflicting with Jus Cogens
A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law.
Consequences of invalidity
(1) In cases covered by Articles 8 and 51–3 of the Vienna
Convention, the treaty is void, or the expression of
consent to be bound by the treaty is ‘without legal effect’,
(2) In cases covered by Articles 46–50, however, the Vienna
Convention says that a state may merely invoke the
formula is that the treaty is probably voidable rather than
void;
In both cases, however, Articles 65–8 of the Vienna Convention
the other parties to the treaty and give them time to make
objections before it takes any action
Article 66 confers jurisdiction on the International Court of Justice
over disputes arising from Article 53 (jus cogens) and confers
commission set up under an annex to the Convention.
Termination of Treaties
Article 26 of the Vienna Convention provides for the rule on pacta
sunt servanda. In other words, a state cannot release itself from its
treaty obligations whenever it feels like it;
Article 42(2) of the Vienna Convention seeks to protect the security
of legal relations by providing: ‘The termination of a treaty, its
denunciation or the withdrawal of a party, may take place only as
a result of the application of the provisions of the treaty or of the
present Convention. The same rule applies to suspension of the
operation of a treaty.’
General Rule: Pacta Sunt Servanda
It is only in exceptional and well established grounds that pacta
sunt servanda may be dispensed with
Grounds for Termination, Denunciation, withdrawal, or
Suspension:
Application of the treaty
Application of the treaty itself (e.g. when the object of the treaty is
already fulfilled or when the treaty provides for “Exit Rules”)
II. Application of the VCLT (Art. 42)
Article 42, VCLT –
Ø The validity of a treaty or of the consent of a State to be
bound by a treaty may be impeached only through the
application of the present Convention. 

Ø The termination of a treaty, its denunciation or the
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withdrawal of a party, may take place only as a result of the operation of the treaty in whole or in part or to
the application of the provisions of the treaty or of the terminate it either:
present Convention. The same rule applies to suspension (i) In relations between themselves and the defaulting
of the operation of a treaty. 
 State 

(ii) As between all the parties 

Article 59—Termination or Suspension of a Treaty implied by
Conclusion of a Later Treaty Ø A party specially affected by the breach to invoke it as a
ground for suspending the operation of the treaty in whole
III. Consent of all parties e.g Desuetude (Art. 54) or in part in the relations between itself and the defaulting
State. 

The termination of a treaty or the withdrawal of a party may either Ø Any party other than the defaulting State to invoke the
be: breach as a ground for suspending the operation of the
Ø In conformity with the provisions of the treaty, or
 treaty in whole or in part with respect to itself if the treaty
Ø At any time by consent of all the parties after consultation is of such a character that a material breach of its
with the other contracting States. provisions by one party radically changes the position of
every party with respect to the further performance of its
Implied Right of Denunciation or Withdrawal obligations under the treaty. 

Article 56, VCLT
1. A treaty which contains no provision regarding its What constitutes material breach?
termination and which does not provide for denunciation A material breach of a treaty consists in:

or withdrawal is not subject to denunciation or withdrawal Ø A repudiation of the treaty not sanctioned by the present
unless: 
 Convention, or

Ø It is established that the parties intended to admit the Ø The violation of a provision essential to the
possibility of denunciation or withdrawal; or 
 accomplishment of the object or purpose of the treaty.
Ø A right of denunciation or withdrawal may be implied
by the nature of the treaty. 
 A repudiation of the treaty not sanctioned by the present
Convention
2. A party shall give not less than twelve months’ notice of
its intention to denounce or withdraw from a treaty under Advisory Opinion on Namibia
par 1. 
 Falls under the first kind of breach (repudiation)

The International Law Commission thought that an agreement to Facts:

terminate could even be implied if it was clear from the conduct of
the parties that they no longer regarded the treaty as being in force.
The technical name for this method of termination is ‘desuetude’.
It follows from the wording of Article 56 that a right of denunciation
or withdrawal can never be implied if the treaty contains an express
provision concerning denunciation, withdrawal, or termination.
IV. Discharge through Material Breach (Art. 60)
Problem: States A and B entered into a Diplomatic Relations
Treaty that allows both states to establish diplomatic missions in
the territory of another. When State A discovered that State B used
its embassy for surveillance and espionage in the territory of State
A, the latter arrested and detained State’s Ambassador and staff.
When State B acused State A of violating their Diplomatic
Relations Treaty, State A invoked “material breach” on the part of
State b that caused the termination of the said treaty. Was the
action of State A in accordance with international law?
Answer: Any act that constitutes as a breach of a treaty will only
give the victim-state the right to invoke the ground before
termination or suspension. A mere act committed constituting
material breach does not automatically terminate or suspend the
treaty. Invocation must be made by the victim-state.
Material breach of a bilateral treaty
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.
Material breach of a multilateral treaty
A material breach of a multilateral treaty by one of the parties
entitles:
Ø The other parties by unanimous agreement to suspend
(see full facts above) But because most colonies were incapable
of self-governance, the UN placed them under trusteeship
mandate. South Africa was the one entrusted with Namibia. There
was a mandate (treaty) between South Africa and the League of
Nations and South Africa was mandated to promote the well-being,
safety and protection of the people of Namibia.
But instead, South Africa discriminated the people of Namibia and
imposed upon them apartheid. Such discrimination was
considered as a material breach of the mandate (treaty). The
violation of a provision essential to the accomplishment of the
object or purpose of the treaty.
Gabcikovo-Nagymaros Project
Facts:
Hungary and Czechoslovakia both entered into an agreement in
creating a project. The project entered into by the two states
created a systems of locks, hydroelectric power plant, and flood
control.
The Treaty was signed in 1977. Thereafter, both parties slowly
performed their works. But there were changes in the
administration, from one regime in another. In Hungary for
example, its government had a change in administration and a lot
of its citizens, most especially the environmentalists in Hungary
opposed the project due to its environmental effects like the system
of blocks which will pollute the waters.
It was relevant to Hungary because if they pursue the project, they
will be violating another International Law, specifically the
International Environmental Law, which is the preservation of the
environment. But the norm on International Environmental Law
was not yet a norm when both states entered into a treaty.

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Hungary, however did not abandon the treaty right away. It first
suspended the operations of the project and then eventually it
abandoned the project leading to Czechoslovakia implementing
the Variant C.
Major issue was whether or not Czechoslovakia was mandated to
implement the Variant C?
Hungary alleged that Czechoslovakia’s act of implementing the
“Variant C” would divert 80% the flow of the Dalupe River (which is
a shared resource of both states) to Czechoslovakia. Hungary said
that it was a material breach because it violated the object and
purpose of the treaty because the object of the treaty is to share
the Danube River.
ICJ ruled that the invocation of material breach was untimely
because at that time that Hungary claimed that Slovakia would
materially breach the treaty Variant C was not yet implemented.
According to the ICJ, you cannot pre-empt material breach. You
cannot say that by virtue of a plan a state would commit material
breach, you contest that plan, that is premature. If you invoke
material breach, you cannot invoke it prematurely. The Variant C
must be implemented sometime in August 1992 and the claim of
material breach was made sometime May, so earlier.
If a state is accused of having materially breached a treaty and
then that state would say that they have no responsibility nor
committed any wrong because the other state actually committed
a prior wrong, so this subject matter now of the controversies only
in response to a prior breach, how do you call this? How do you
call that ground that will excuse a state from committing a material
breach? Under the VCLT that would be a justification, we call it a
counter- measure. Czechoslovakia argued that it was not a
material breach, but only in response to the earlier breach
committed by Hungary (considered it as a counter-measure)
The moment there is a material breach, an aggrieved state has
three options:
Ø May terminate the treaty 
 It is not a ground to terminate a treaty. According to the ICJ, if you
Ø May claim for compensation or any form of reparation as
a result 
of an internationally wrongful act 

Ø May make use of counter-measure in response to a
material breach 

This is important because a material breach is an international
wrongful act (IWA). It is either a violation of conventional or
customary international law that would engage state responsibility.
So, in many cases, material breaches have been invoked also as
a ground to implement counter-measure. Because under the Draft
Articles on Responsibility of States on Internationally Wrongful Act
(ARSIWA), counter- measures are among those called
circumstances that would preclude wrongfulness of an act. So, if
material breaches have been committed by the other party, let us
say State A, and State B performs an act in violation of the same
treaty. State A, which has committed a prior breach, cannot impute
upon State B responsibility for violating the same treaty if State B
lawfully implements counter-measure.
Requirements for a valid counter-measure:
Ø Must be taken in response to a previous international
wrongful act of another.
 indispensable for the execution of the treaty.
In this case, Hungary committed a wrongful act when it
suspended then abandoned the project. Hungary, on the
other hand, invoked fundamental change of circumstance
as a defense due to the development of a new
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environmental norm. In addressing the issue, ICJ said
that the development of a new norm cannot be
considered as a fundamental change in circumstances.
Ø The injured state must have called upon the state
committing the wrongful act to discontinue its wrongful
conduct or make reparation for it (also known as the
summation-notification requirement of counter measure)


Ø The act must be proportional to the wrongful act.

In this case, the act of Czechoslovakia was not
proportional to the breach caused by Hungary because
the damage caused by the implementation of the Variant
C is greater. The implementation of the Variant C would
result to the diversion of 80-90% of the flow of the river.
Therefore, Czechoslovakia was not justified in
implementing the Variant C. 

Under the VCLT, a material breach is considered a ground to
terminate, and not a cause that ipso facto terminates a treaty. Only
a ground, and is it is up to the aggrieved party to invoke it or let it
pass. Also, of important concern is the unavailability of material
breach as a ground to terminate or suspend a treaty when the
treaty involve is of humanitarian character. So, even if there is a
supposed material breach committed by State A, State B cannot
say that this treaty is based on humanitarian law. These are set of
principles that are aimed at protecting the protected subjects of
international humanitarian law. So, even if the other state breaches
a provision of treaty which is of humanitarian in character, you
cannot invoke it as a ground to terminate or suspend the treaty
V. Impossibility of Performance
There is impossibility if there is permanent disappearance or loss
of the object of the obligation
What about the doctrine of state necessity?
are to invoke state necessity you are excused for not performing
the obligation but the treaty is really effective, so that if the reason
for that necessity no longer exist, the treaty becomes binding
again.
In all of this you have to get out of the treaty, you don’t want the
treaty to be binding anymore, except in the case of suspension
where for a time being the treaty will not be applied to you, but in
the state of necessity, it is different. It is a ground to justify non-
performance of an obligation under the treaty. It started, of course,
of the notion general preservation, self-help then it became
doctrine of necessity and now the International Law Commission
transported this principle in what is not found in Art. 25 of the 2001
Draft Articles on the Responsibility of States for Internationally
Wrongful Act.
Article 61 of the Vienna Convention:
(1) A party may invoke the impossibility of performing a
treaty as a
a. ground for terminating or withdrawing from
it if the impossibility results from the permanent
disappearance or destruction of an object
b. ground for suspending the operation of the
treaty if the impossibility is temporary
(2) Impossibility of performance may not be invoked by
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a party as a ground for terminating, withdrawing from
or suspending the operation of a treaty
a. 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. 
 Ø
VI. Rebus Sic Stantibus (Art. 62)
Not implied. Otherwise known as fundamental change of
circumstance. Applicable only in the most exceptional
circumstances (last resort always).
Difference between fundamental change of circumstance and
rebus sic stantibus:
Rebus sic stantibus Fundamental change of
circumstance
principle belonging to in the realm of modern law of
traditional law of treaties treaties (referred to the regime
affecting treaties as embodied
in the VCLT)
applied to perpetual treaties, can be invoked whether the
not those treaties with fixed treaty is perpetual or with
terms fixed-term. 
 change terminating or at the very least suspending the treaty,
applicable to all nature of not apply when the treaty
treaties, even if it involves involves boundaries
boundaries
Because there are some changes introduced by the ILC to the
original concept of rebus sic stantibus, they did not want to use the
term “rebus sic stantibus” in the VCLT
Is rebus sic stantibus applicable only to indefinite treaties?
Supposedly. However, since such principle has not been carried
out in the VCLT, the ILC made a clarification that rebus sic
stantibus is applicable to any treaty (both indefinite and those with
an expiration period.
Nature of rebus sic stantibus/ fundamental change of circumstance
Rebus sic stantibus is an exception to pacta sunt servanda. States
have accepted this as a ground to terminate a treaty when that
treaty no longer applies to the parties because of the fundamental
change of circumstance. This is a practice of domestic laws applied
to contracts that developed into the international level.
Elements of Fundamental Change of Circumstances:
Ø The change of circumstances must have been of a
“fundamental” character 
 plane, Indian (P) appealed to the I.C.J., asserting that it had
When can change be considered fundamental?
o It should radically transform the extent of the
obligation that will be 
performed 

o The party, due to the change in circumstance,
would now be obliged 
to perform something
which is different from that which was originally

agreed upon 

o By radically transform – it means that the change
must have increased 
the burden of the
obligation to be executed to the extent of
rendering the performance of something
essentially different 
 dead letter. This implies that the Court does have jurisdiction.
Ø The change must have resulted in a radical
transformation of the extent of the obligations still to be
performed. The change must have increased the burden
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of the obligations to be executed to the extent of rendering
the performance something essentially different from that
originally undertaken. 

Ø The circumstances that changed must refer to those that
determined the parties to accept the treaty. 

The change in circumstance must have been unforeseen
by the parties 

Ø The existence of the circumstances at the time of the
treaty’s conclusion must have constituted an essential
basis of the consent of the parties to be bound 

Fisheries Jurisdiction Case
Facts:
(see full facts above) When the case was brought to the ICJ,
Iceland claimed that ICJ has no jurisdiction because such treaty
has been terminated or at the very least suspended. It was the
technique in fishing that was considered a fundamental change,
which resulted to the over fishing.
Icelanded wanted to extend up to 50 nautical miles instead of 12
nm because of new fishing techniques such that the 12 nm area
was over-exploited. Iceland claimed that the ICJ has no jurisdiction
because the technique in fishing was considered a fundamental
Held:
Fundamental change in circumstance must refer to the obligations
in the treaty. The circumstance that changed must have changed
the performance of the obligation of the parties. In this case, the
obligation to be undertaken in the treaty is to submit to the
jurisdiction of the ICJ cases where there is a dispute in connection
to treaty.
ICJ said that the change in the technique in fishing cannot be
considered a fundamental change of circumstance because it had
nothing to do with the obligation of the treaty, which is to submit to
the jurisdiction of the ICJ.
Appeal Relating to the Jurisdiction of the ICAO Council (India v
Pakistan)
Facts.
A complaint against India (P) was brought before the Council of the
International Civil Aviation Organization (ICAO) by Pakistan (D) for
the violation of treaty provisions after India (P) unilaterally
suspended flights of Pakistan (D) aircraft over Indian (P) territory.
Based on the premise that Pakistan (D) had hijacked an Indian (P)
suspended the treaty. Pakistan (D) objected to the jurisdiction of
the I.C.J.’s on the ground that India’s (P) unilateral suspension had
made the jurisdictional clauses inoperative.
Issue.
Are jurisdictional clauses rendered inoperative by mere unilateral
suspension?
Held.
No. Jurisdictional clauses are not rendered inoperative by a mere
unilateral suspension alone. If a mere allegation that a treaty was
no longer operative could be used to defeat its jurisdictional
clauses, then clauses of these nature would become potentially a
Discussion.
The Court was able to deduce that any treaty could be destroyed
by one party’s assertion that the treaty was no longer operative,
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thereby compromising the main goal the treaty seeks to achieve. It
may precisely be one of the objects of jurisdictional clauses of a
treaty to enable that matter to be adjudicated upon.
Gabcikovo-Nagymaros Project
Issue:
Was the change in the environmental norm considered a
fundamental change in circumstance thus allowing Hungary to
discontinue with the project?
The grounds invoked by Hungary as the circumstances that
changed:
(1) Political and economic change of administration
(2) Economic viability
(3) Emerging environmental norms
Assuming that there was a fundamental change of circumstance in
the change of the environmental norm, it did not however prohibit
them from performing their obligations of the project. The parties
could have adjusted or changed their means in implementing the
project.
The justices of the ICJ did not believe that the development of the
environmental norm radically altered the obligation of the parties.
More so, it was not considered by the ICJ as something which
cannot be foreseen. ICJ said that any development in international
law is not something that is unforeseeable because it is a fact that
law develops. Therefore, changes in legal, social, economic,
cultural system will not constitute fundamental change of
circumstance.
When may change of circumstances not be invoked as a ground
for termination?
Ø If the treaty establishes a boundary
 termination or suspension of a treaty may be precluded from
Ø 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.
VII. Emergence of new Jus Cogens (Art. 64)
Article 64, VCLT:
‘If a new peremptory norm of general international law emerges,
any existing treaty which is in conflict with that norm becomes void
and terminates.’ The treaty does not, however, become void
retroactively
VIII. Outbreak of War (bilateral treaties)
Techt v Hughes
Eventually, it was ruled that because of the existence of war, some
treaties may no longer apply between the US and Austria-
Hungary.
But the US court came up with a threshold as to when will this
apply. So if the treaty has something to do with national policy,
national interest or national security, then it will be affected by the
outbreak of war between the two states.
But of course, if you go to the Vienna Convention on the law of
treaties, the severance of diplomatic or consular relations will not
automatically result in the termination or suspension of treaties.
Only when the treaty involved would require the continuation of the
consular or diplomatic relations that necessarily the treaties will be
terminated on account of the severance of diplomatic or consular
relations.
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Procedure in Invalidation, Termination, etc.
Exclusive Grounds
Art. 42 suggests the exclusivity of the grounds for the suspension,
termination and invalidation of a treaty. If there will be any ground
outside the VCLT, it must either be a new CIL or stipulated
specifically in a treaty, otherwise an aggrieved party cannot
invalidate, suspend or terminate the treaty.
General Rule:
Should affect the whole treaty (Art. 44)

Exception:
If the treaty provides for a separability clause. In which case,
provisions not affected by the invalidation of the treaty will still
stand or remain binding between the parties.
Lex Specialis and Lex Generalis
Although the VCLT provides for grounds of the suspension,
termination or the invalidation of a treaty, a special law, in the guise
of the treaty, may also be passed consisting of other grounds to
terminate or suspend the treaty. Meaning, such other grounds
must be provided for in the treaty
LEX SPECIALIS: When the parties provide for specific grounds in
the termination, suspension or the invalidation of a treaty.
Without such specific provision, then the LEX GENERALIS
(general law, as provided for in ART. 42 of the VCLT) shall apply.
Subject to Loss of Right
Instances where the state claiming ground for invalidation,
advancing the claim:
Ø When a state has also contributed to the material breach
of the treaty (Doctrine of clean hands) 

Ø 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:
o It shall have expressly agreed that the treaty is
valid or remains in force or continues in
operation, as the case may be, or 

o 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. 

Procedure
Notify in Writing of the Claim and Proposed Measure
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 (in
writing) the other parties of its claim.
The parties cannot just unilaterally terminate a treaty. They should
be given the chance to resolve their differences in a peaceful
manner.
Notification-summation process
Notification refers to the party notifying the other party of the
breach and summation referring to the proposed measures – either
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to suspend or terminate the treaty.
The notification requirement is a CIL, but whether it should be in
writing or not, that has not yet become a customary international
law. But if the parties to the treaty are parties to the VCLT, then
such notification must be in writing, as stated in Article 67.
The notification must contain at the very least:
3. Its claim or grounds (is it a material breach, impossibility
of performance, fundamental change of circumstance,
etc?)
4. the proposed measure. (it means whether the injured the
party would want to suspend or terminate the treaty)
To summarize, the notification must be in writing, in an appropriate
instrument and signed by the head of state.
Effect if no objection within 3 months
If there no objection within three (3) months from receipt of the
notification, the claiming State may carry out the measure
proposed, through a duly signed instrument.
Within the 3-month period, the other party may either:
Ø Object to the ground or proposed measure
If there is an
objection, it will preclude the other party from
implementing the proposed measure. Instead, it is
required to first seek pacific or peaceful means of dispute
settlement as provided in Article 33 of the UN Charter.
(i.e. arbitration, conciliation, mediation, good office,
judicial settlement, etc.)
If these pacific means still fail, the state must wait for a
period of 12 months, the state invoking the ground may
now go to the ICJ unless by treaty or convention the
parties have agreed to submit the dispute to arbitration.
Objection may be based on the defense that the state
denies the ground, or that the ground is not a material
breach or that the act is a countermeasure, etc.
Ø Will not object
Urgent Countermeasure
Ø one kind of countermeasure that dispenses with the
notification-summation requirement
Ø non-performance of the countermeasure will increase the
prejudice or worsen the damage caused to the state
intending to implement the counter-measure then
notification-summation may be dispensed with.
Ø State can directly use the countermeasure but still in
compliance with the first 2 elements (previous IWA and
proportionality must still be complied with)
Distinction between arbitration and mediation
Arbitration—panel of arbitrators decides who are chosen by the
parties
Mediation—mediator does not decide but only mediates on the
possible solution
Philippine Practice
Constitutional Provisions
Article I, 1987 Constitution
Provides the scope of the territory of the Philippines (principle of
territoriality)
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Sec 2, Art II, 1987 Constitution
The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all nations.
Sec 21, Art VII, 1987 Constitution
No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the
Senate.
Sec 5(2) (a), Art VIII, 1987 Constitution
The Supreme Court shall have the following powers:
a) Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide,
final judgments and orders of lower courts in:
b) All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
Sec 18(7), Art XIII, 1987 Constitution
The Commission on Human Rights shall have the following powers
and functions: Monitor the Philippine Government's compliance
with international treaty obligations on human rights.
Sec 25, Art XVIII, 1987 Constitution
After the expiration in 1991 of the Agreement between the Republic
of the Philippines and the United States of America concerning
military bases, foreign military bases, troops, or facilities shall not
be allowed in the Philippines except under a treaty duly concurred
in by the Senate and, when the Congress so requires, ratified by a
majority of the votes cast by the people in a national referendum
held for that purpose, and recognized as a treaty by the other
contracting State.
EO 459 (Providing for Guidelines in the Negotiation of
International Agreements and its Ratification
Distinguish International Agreement, Treaty and Executive
Agreement.
There is no distinction in international law, for as long as they are
entered into between both states and is in writing, then it is
considered an treaty (See Article 1, VCLT)
However, in our domestic jurisdiction, all three are considered
as international agreements but differ procedurally.
a) Treaty – international agreements entered into by the
Philippines which require legislative concurrence after
executive ratification. 

b) Executive agreement – similar to treaties, except that they
do not require legislative concurrence. 

By nature, executive agreement if it is temporary in
character and normally executed to supplement existing
treaties between two states
Who decides if it is an Executive Agreement, Treaty or an
International Agreement?
The Secretary of the Department of Foreign Affairs has the
competence to determine whether the agreement is an executive
agreement (to be submitted to the President for ratification) or a
treaty (to be submitted to the President for ratification and Senate
for concurrence). Remember that the secretary is an alter ego of
president; the president can overrule the finding of the department
secretary. Meaning if the law says it is the DFA, it is actually the
president.
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Who shall represent the Philippines in the different states of treaty
formation? fully belongs to Congress.
Any person armed with Full Powers.

The following persons, however, shall not require Full Powers prior
to negotiating or signing a treaty or an executive agreement, or any
amendment thereto, by virtue of the nature of their functions:
Ø Secretary of Foreign Affairs 
 state which has contracted valid international obligations is bound
Ø Heads of Philippine diplomatic missions, for the purpose
of adopting the text of a treaty or an agreement between
the Philippines and the State to which they are accredited.
Ø Representatives accredited by the Philippines to an
international conference or to an international
organization or one of its organs, for the purpose of
adopting the text of a treaty in that conference,
organization or organ. 

Who may issue Full Powers?
The President of the President. However, he may delegate this
function to the Secretary of Foreign Affairs.
Entry into Force
When shall treaties enter into force in the Philippines?
A treaty or an executive agreement enters into force upon
compliance with the domestic requirements stated in this Order.
Executive Agreements
Ø All executive agreements shall be transmitted to the
Department of Foreign Affairs after their signing for the
preparation of the ratification papers. 

Ø The DFA, pursuant to the endorsement by the concerned
agency, shall transmit the agreements to the President of
the Philippines for his ratification. 

Ø The original signed instrument of ratification shall then be
returned to the DFA for appropriate action. 
 With regard to the ratification by the President of the VFA and the
Treaties
Ø All executive agreements shall be transmitted to the DFA
after their signing for the preparation of the ratification
papers.
Ø The DFA pursuant to the endorsement by the concerned
agency, shall transmit the agreements to the President of
the Philippines for his ratification.
Ø The DFA shall submit the treaties to the Senate for
concurrence in the ratification by the President.
Ø Upon receipt of the concurrence by the Senate, the DFA
shall comply with the provision of the treaties in effecting
their entry into force.
May the President refuse to submit a treaty to the Senate for its
concurrence? state can pass judgment upon the other state with regard the
Yes. The President may refuse to do so because treaty-making is
a foreign affairs function and is executive in character. Thus, the
President cannot be compelled to ratify the treaty and submit the
same to the Senate for concurrence.
Tanada v. Angara (1997)
Re: Concurrence by the Senate is a political question.
Facts:
There was a petition to prevent the Senate from concurring from
the President’s ratification of the WTO Charter. The grounds
invoked were provisions of the Constitution which were not
considered as self- executing. The Supreme Court said that no
compulsion can be made because the question of whether to
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concur or not is a political question. The Constitution does not
provide for conditions on concurring, thus full discretionary powers
One of the oldest and most fundamental rules in international law
is pacta sunt servanda – international agreements must be
performed in good faith. “A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on the parties. A
to make in its legislations such modifications as may be necessary
to ensure the fulfillment of the obligations undertaken.
When the Philippines joined the UN as one of its 51 charter
members, it consented to restrict its sovereign rights under the
“concept of sovereignty as auto-limitation.”
Pimentel v. Romulo (2006)
Re: The power to ratify a treaty is vested with the President.
The signing of the treaty and the ratification are two separate and
distinct steps in the treaty-making process. The signature is
primarily intended as a means of authenticating the instrument and
as a symbol of the good faith of the parties. It is usually performed
by the state’s authorized representative in the diplomatic mission.
Ratification, on the other hand, is the formal act by which a state
confirms and accepts the provisions of a treaty concluded by its
representative. It is generally held to be an executive act,
undertaken by the head of the state or of the government.
The power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate, however, is
limited only to giving or withholding its consent, or concurrence, to
the ratification. Hence, it is within the authority of the President to
Refuse to submit a treaty to the Senate or, having secured its
consent for its ratification, refuse to ratify it.
Bayan v. Executive Secretary (2000)
exercise by the Senate of its constitutional power to concur with
the VFA, the Court, absent clear showing of grave abuse of
discretion on the part of respondents, is without power to meddle
with such affairs purely executive and legislative in character and
nature.
With the ratification of the VFA, which is equivalent to final
acceptance and with the exchange of notes between the
Philippines and the USA, it now becomes obligatory, under the
principles of international law, to be bound by the terms of the
agreement.
The only limitation is grave abuse of discretion.
Act of State Doctrine: by virtue of the co-equality among states, no
state’s governmental act
Bayan Muna v. Romulo (2011)
Re: Concurrence by the Senate is not required in executive
agreements.
The terms “exchange of notes” and “executive agreements” have
been used interchangeably, exchange of notes being considered
a form of executive agreement that becomes binding through
executive action. On the other hand, executive agreements
concluded but the President “sometimes take the form of exchange
of notes and at other times that of more formal documents
denominated ‘agreements’ or ‘protocols’. Concurrence of the
Senate is not required in executive agreements.
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Principle of Complementarity: a principle in the Rome Statute that
enables the parties to enter into agreements that complements the
mandate of the Statute

Under this principle, ICC can only exercise jurisdiction over the
case if the state concerned where the individual is found subject to
the prosecution is unable or at the very least unwilling to prosecute
the individual. If that is the case then it is only then the ICC can
acquire jurisdiction over the case

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TOPIC D (INTERNATIONAL LAW AND MUNICIPAL LAW) The domestic law can only be valid if it conforms to international
law.
Dualist v Monist; International Law v Municipal Law
So, to a monist, INTERNATIONAL LAW PREVAILS
What is Municipal law?
Municipal law is the technical name given by international lawyers If Dualism (you qualify)
to the national or internal law of a state.
Forum where case is filed
What are the two theories? If it has to be decided by an international court, then we can expect
Ø Dualist Approach—International law and municipal law that international law will be applied rather than municipal law. That
are two separate legal systems which exist independently is expected of an international tribunal. But it is not right to conclude
of each other 
 that if the case is to be decided by a municipal forum, it will always
apply municipal laws.
Ø Monist approach—Has a unitary perception of the ‘law’
and understands both international and municipal law as If the domestic forum follows monism, then it may apply
forming part of one and the same legal order 
 International Law over Municipal Law assuming the Municipal Law
involved is not the Constitution but only national legislation. But if
How will international law become part of our domestic legal the forum follows a dualist approach, then the domestic forum is
system? expected to apply Municipal Law over International Law
1. Incorporation—normally a way observed by monist
perspective. Because of the idea that this world is
governed by a single legal system. So in our case, GAPIl
ato tawag (generally accepted principles of law) 


2. Transformation—a byproduct of a dualist perspective. This

world is governed by two legal systems. Before an
international becomes part of the law of the land, it 
must
undergo a process of transformation. There are 3 ways:
1. legislature/legislative act
2. Executive act

3. Judicial act

If you are asked, in the Philippines which system is being

observed, we observed incorporation under article 2, we can adopt
transformation in various ways.

Strong and Weak Transformation

Strong— if there is only one method/way of transforming
international law into domestic law. And it is by legislation.

Weak—if it permits other means of transforming international law

into a domestic law. It is either by executive act or judicial act other
than legislative act.

Example:
Generally accepted principle of IL— they become part of the law of
the land via incorporation and treated similarly as statutes.

Treaty-based public international law (if the only way we are

bound is by virtue of a treaty entered into)—they become part of
the law of the land by virtue of sec 21 of 1987 constitution

When there is a conflict between international law and municipal

law, which should prevail?
The question requires levels of qualifications.

The main answer is dependent on the kind of theory adopted by

the states concerned

If Monism
There is only one legal system—international law. This thinking is
highly influenced by the natural law theory and under this theory,
each and every individual is endowed with the ability to determine
what is right and what is wrong. There is therefore the possibility of
the universality of a law.

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TOPIC E (STATES AND GOVERNMENT)
When does determination of statehood become relevant?
Determination of Statehood Scenarios (when discussion of
statehood become relevant)
Examples are when a portion of a territory has seceded, or when
there is foreign control over the affairs of an entity which claims to
be a state, or when states have formed a union but continue to
retain some autonomy, and when individual members of a
federation claim statehood.
Ø Break up of a large state into several states (e.g. USSR,
former Yugoslavia, and Czechoslovakia in 1990’s) 

Ø Secession by part of a territory (e.g. Kosovo’s declaration
of independence from Serbia in 2008) 
 would require the presence of both genders (male and female)
Ø Foreign control is exercised over the affairs of a state (e.g.
US’ control over the island of Palau in the Pacific Ocean
before 1994)
Ø Merger or Union og state (e.g. Egypt and Syria merged in
1958 to form the United Arab Republic and Syria then
seceded from the UAR in 1961 and Egypt renamed itself
Egypt) 

Ø Claims by constituents’ units or a union or federation to
the attributes of statehood (e.g. Separatist claims in
Quebec) 

Ø Territorial or non-territorial communities which have
special international status (e.g. Palestine’s “non-member
observer state” of UN status in 2012) 

State v Government
State
Ø consists of government and other elements of state
Ø bearers of rights and duties under international law
Government
Ø agency through which the will of the state is formulated,
expressed and carried out
Doctrine of State Continuity
State continues despite changes of government, people, and
territory.
Doctrine of State Succession
Opposite of Continuity. When one state succeeds another, there is
now a change of sovereignty. There is already a change of legal
personality of a state, i.e. when a territory is ceded to another state.
How the state “governs” internally may be relevant in recognition
of government issues
Because some states may not recognize
governments established by force. Some states may also
recognize a government based on its own criteria.
Two theories of recognition:
Ø Declarative Theory—objective evaluation of statehood. If
the four elements are complete, there exists a State.
Recognition is immaterial. This is acknowledged by the
Montevideo Convention. 
 What if Territory is purportedly annexed by another State?
Ø Constitutive theory – Recognition of state is an additional
element of statehood. Not a well-accepted view. 
 annexed by Iraq, did it diminish the status of Kuwait as a State?
Recognition of State v. Recognition of Government
Recognition of State does not necessarily mean recognition of
government. Recognition of the State recognizes the presence of
the elements of a state. Recognition of the Government recognizes
that the government has effective control over the territory of a
particular state.
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Elements of “State”
1. Permanent population
2. Defined territory
3. Government
4. Capacity to enter into relations with other states
(Art. 1, 1933 Montevideo Convention on the Rights and Duties of
States)
Permanent Population
How many people are required?
There is no required number, so long as they are capable of
perpetuating itself through natural reproduction or migration.
Traditionally of course, continued existence of the population
because traditionally, population is continued by natural methods.
But modern international law has accepted the possibility that
population can actually be maintained not just by the natural
continued existence of that group of people but also by migration
or other scientific means like cloning (but cloning is not yet
generally accepted as per Sir).
So, there is no requirement of the number of inhabitants or gender
under international law
Defined Territory
Take note, accuracy in the definition of the territory does not affect
statehood. What is important is sufficient consistency of control
The control of territory is the essence of a state
The control of territory is the essence of a state and this is the basis
of the central notion of “territorial sovereignty”, establishing the
exclusive competence to take legal and factual measures within
that territory and prohibiting foreign governments from exercising
authority in the same area without consent.
Meaning of “Territorial Sovereignty”
It refers to the right to exercise in a territory the functions of a state,
to the exclusion of any other state. It must be open in public.
Discovery could only exist as an inchoate title, as a claim to
establish sovereignty by effective occupation.
Bretch: So there must be some form of administration to the
exclusion of all others. That is why when Tomas Cloma found the
Kalayaan Islands are now effectively controlled by the Philippines,
to comply with territorial sovereignty, Marcos issued a Presidential
Decree making Kalayaan Islands part of Palawan (administrative
powers to the exclusion of all others).
How large must the territory be?
There is no requirement, there is not even a requirement that it be
contiguous.
TN: Monaco has 1.95 sq. km., The Vatican City has 0.44 sq. km.
Just like what happened to Kuwait in 1990 when it was forcibly
No. It is not a norm or policy that a state’s status as a state will
diminish if occupied or forcibly annexed by another State.
Must territory be contiguous
Not necessarily (see USA and Alaska)
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Island of Palmas Case
Here, discovery was simply considered as entitling the discovering
state with an inchoate right or inchoate title. Such discovery must
be followed by effective occupation. Thus, between mere discovery
on the part of Spain and the exercise of territorial sovereignty on
the part of the Netherlands, Max Huber favored exercise of
territorial sovereignty over mere discovery because it was
established in this case that Netherlands (Dutch government) had
already exercised territorial sovereignty which is the exercise of
governmental functions to the exclusion of all others

Territorial Sovereignty
The state must exercise a degree of governmental function to the
exclusion of other states which means there should be some form
of administration in the discovered territory.

Governmental functions may refer to policy and lawmaking and

implementation, and before you can do that there should be
people. Which is why countries in the past ask their people to
migrate to discovered colonies to occupy the land and so that it can
be administered in accordance to its own policy.

According to Max Huber, this is what Spain failed to do in the

Palmas Case. Spain may have discovered the Islands, but they did
not exercise effective sovereignty. Discovery will only give you an
inchoate right over the discovered territory.

Until when should the discoverer enjoy that inchoate right?

Such as when State A discovers a territory today, and the next day
State B wants to occupy it, can State A use force to drive away
State B claiming that State B discovered it first and that they have
inchoate right over it?

There is no fixed threshold for inchoate right, but thresholds

develop in PIL. In the past, it takes very long to travel and therefore
longer periods of time should be afforded the inchoate right.

Although it is highly improbable to discover new territory today, the

period of time for the inchoate right to be given today should be
shorter since travel is now fast and more sophisticated as per
Largo’s opinion

North Sea Continental Case

The threshold for defined territory is Sufficient Consistency of
Control. There is no rule saying that land frontiers of a state must
be fully delimited and defined. What matters is that a state
consistently controls a sufficiently identifiable core of territory.

To effectively comply with the territory requisite, there must be:

1. Sufficient consistency in the exercise of sovereignty over the
territory and that the
2. Authority must be exercised effectively.

Bretch: We have mentioned that North Sea Continental case is our

authority on the threshold that the territory should not be accurately
defined otherwise states will hardly exist by the mere expedient of
questioning or disputing frontiers or boundaries.

So it is not a good law or norm to say that for there to have a state,
its boundary or territory must be accurately defined. What is
required is sufficient consistency of control. Meaning, that the State
is undeniably under the effective control of the state concerned.

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