CHAPTER 1

PUBLIC INTERNATIONAL LAW  Under this theory international law derives its binding force from
the consent of states.
1. Traditional Definition
 Treaties are an expression of consent. Likewise, custom, as
P.I.L is that body of rules and principles of action which are binding upon voluntary adherence to common practices, is seen as expression
civilized states in their relations to one another. of consent.

In the traditional definition of P.I.L States are the sole actors. In the past,
public international law dealt almost exclusively with regulating the C. NATURAL LAW THEORY
relations between states in diplomatic matters and in the conduct of war.
 Law is derived by reason from the nature of man. International Law
2. Present Definition is said to be an application of natural reason to the nature of the
state person.
Sovereign states remain as the principal subjects of international law, but
they are now joined by international organizations and even by individuals. III. PUBLIC INTERNATIONAL LAW VS PRIVATE
INTERNATIONAL LAW
P.I.L is that law which deals with the conduct of states and of international
organizations and with their relations inter se (between themselves) as well  Public International Law (International Law) governs the
as with some of their relations with persons, whether natural or juridical. relationships between and among states and also their relations with
international organizations and individual persons.
II. SCOPE OF INTERNATIONAL LAW  Private International Law (Conflict of Law) is a domestic law
which deals with cases where foreign law intrudes into the domestic
The topics that are covered by international law today include the: sphere where there are questions of the applicability of foreign law or
the role of foreign courts.
F-O-S-H-I-E
a. Regulation of S-PACE EXPEDITIONS BRIEF HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW
b. Division of the O-CEAN FLOOR (Ancient Law to the League of Nations)
c. Protection of H-UMAN RIGHTS
d. Management of the INTERNATIONAL Jus Gentium “law common to all men” (Roman Empire)
F- INANCIAL SYSYTEM ↓
ALBERICO GENTILI (DE JURE BELLI)
Beyond the primary concern for the preservation of peace, it now covers all ↓
the interest of contemporary international and even domestic life. SAMUEL PUFENDORF (DE JURE NATURAE GENTIUM)
↓
III. THEORIES ABOUT INTERNATIONAL LAW EMMERICH de VATTEL (THE LAW OF NATION)
↓
A. COMMAND THEORY Modern International Law begun with the birth of nations in the
 Law consist of commands originating from a sovereign and backed MEDIEVAL AGE
up by threats of sanctioned if disobeyed Governing Law: ROMAN LAW/CANON LAW
 In this view international law is not law because it does not come
from a command of a sovereign. Neither treaties nor custom come  HUGO GROTIUS Father of Modern International Law authored:
from a command of a sovereign.  DE JURE BELLI ac PACIS (his so called law of nations)
↓later named
B. CONSENSUAL THEORY INTERNATIONAL LAW by JEREMY BENTHAM

SIGNIFICANT MILESTONES IN THE DEVELOPMENT OF
INTERNATIONAL LAW
 The PEACE OF Westphalia, which ended the Thirty Years War
(1618-1648) and established a treaty based framework for peace
cooperation. (It was at this time that pacta sunt servanda arose)
 CONGRESS OF VIENNA (1815) which ended the Napoleonic Wars
and created a sophisticated system of multilateral political and
economic cooperation.
 COVENANT OF THE LEAGUE OF NATIONS (1920) which included
the Treaty of Versailles which ended World War I.
THE LEAGUE OF NATIONS (established after WWI)
↓ created
PERMANENT COURT OF INTERNATIONAL JUSTICE
↓  Can refer to the various processes by which rules come into
UNITED NATIONS 1945 (created after the failure of The League to
prevent WWII)
↓it was during this period that 3 major groupings of states arose:
↓ B) MATERIAL SOURCES
A. WESTERN STATES
 As to international legislation the Western States insisted on two
points:
a) Legal provisions must be clear and precise
b) Any substance rule must be accompanied by an
implementation mechanism that can spot and correct violations
B. SOCIALIST STATES
 Led by the Soviet Union
 Sought to avert Western intrusion into domestic affairs even as they
sought good relations for the sake of economic and commercial
interchange.
 Sought to convert developing nations to their ideology.
C. DEVELOPING COUNTRIES
 Consisted mainly of colonies suffering from underdevelopment
together with newly industrializing countries such as the
Philippines, Malaysia Thailand, Philippines, Singapore and South
Korea.
* A,B,C occurred during the ongoing Cold War.
END OF THE COLD WAR
 The dissolution of the Soviet Union resulted in the end of the Cold
War.
 International relations based on multiple sources of power and not
mainly on ideology re-emerged.
 Baltic States were restored to statehood.
 Yugoslavia collapsed and fragmented.
 The newly formed Russian Federation did not inherit the Soviet
Union’s position as superpower.
 At present, there is only one superpower, the United States who acts
both as a world policeman( in a selective manner as directed by its
own interest) and also as a global mediator.
CHAPTER 2
THE SOURCES OF INTERNATIONAL LAW
CLASSIFICATION:
A) FORMAL SOURCES
existence.
 Thus for instance, is a formal source of law. So are treaty making
and judicial decision making as well as the practice of the states.
 Not concerned with how rules come into existence but rather
with the substance and content of the obligation.
 Material sources identify what the obligations are. In this
sense, state practice, UN Resolutions, treaties, judicial
decisions and the writing of jurists are material sources in so
far as they identify what the obligations are.
 Sometimes referred to as “evidence” of international law.
○ The most widely accepted statement of the “sources” of international law
that is Article 38 of the Statute of the International Court of Justice,
does not speak of sources.
○ Article 38 is primarily a directive to the court on how it should
resolve conflicts brought before it.
Article 38 provides that:
1. The Court whose function is to decide in accordance with international
law such disputes are submitted to it, shall apply:
a. INTERNATIONAL CONVENTIONS whether general or particular,
establishing rules particular, establishing rules expressly recognized by
contesting states;
b. INTERNATIONAL CUSTOM, as evidence of a general practice accepted as
law;
c.GENERAL PRINCIPLES OF LAW recognized by civilized nations;
d.aJUDICIAL DECISIONS, TEACHINGS OF THE MOST HIGHLY
QUALIFIED PUBLICIST OF THE NATIONS, as subsidiary means for the
determination of rules of law. (Article 59)
2. This provision shall not prejudice the power of the court to decide ex
aeqou et bono, if the parties agree thereto.
Article 38, is a declaration by states that these are the laws under
which they are willing to be bound. Thus another statement of Sources is
the Restatement (Third) of Foreign Relations Law of the United States which
says:
1. A rule of international law is one that has been accepted as such by the
international community of states
a. in the form of CUSTOMARY LAW;
b. by INTERNATIONAL AGREEMENT or;
c. by DERIVATION FROM GENERAL PRINCIPLES common to the major
legal systems of the world.
2. Customary international law results from a general and consistent
practice of states followed by them from a sense of legal obligation.
3. International agreements create law for the states parties thereto and
may lead to the creation of customary international law which such
agreements are intended for adherence by states generally and are in fact
widely accepted.
4. General principles common to the major legal systems even if not
incorporated or reflected in customary law or international agreements, may
be invoked as supplementary law where appropriate.
○ Briefly stated the sources of international law are
1. Custom
2. Treaties,
3. Other International Agreements
4. Generally recognized principles of law,
5. Judicial decisions
6. Teachings of highly qualified and recognized publicist
I.CUSTOM/CUSTOMARY INTERNATIONAL LAW
A general and consistent practice of states followed by them from a sense of
legal obligation.
This statement contains the two basis elements of custom:
1. MATERIAL FACTOR
 How states behave
 The initial factor for determining the existence of custom is the
actual behavior of the states(usus)
 This includes several elements:
a. DURATION (diurnitas);
 can either be short or long
 An example of customary law that is the result of long,almost
immemorial, practice is the rule affirmed in the Paquete Havana on
the exemption of fishing vessels from capture as prize of war.
 By an ancient usage among civilized nations, beginning centuries
ago, and gradually ripening into a rule of international law, coast
fishing vessels, pursuing their vocation of catching and bringing in
fresh fish, have been recognized as exempt, with their cargoes and
crews, from captures
 In the North Sea Continental Shelf Cases, however, the Court
indicated that a short duration, by itself will not exclude the
possibility of a practice maturing into custom provided that other
conditions are satisfied i.e consistency and generality of practice.
… Although the passage of only a short period of time is not
necessarily, or of itself, a bar to the formation of a new rule of
customary international law on the basis of what was purely a
conventional rule, an indispensable requirement would be that within
the period in question, short though it might be, State practice
including that of states whose interest are specifically affected,
should have been both extensive and virtually uniform in the sense
of the provision invoked-and should moreover have occurred in such
a way as to show a general recognition that a rule of law or legal
obligation is involved.
b. CONSITENCY
 The basic rule of consistency that is, continuity and repetition, was
laid down in the Asylum Case (ICJ Reports 1950)
FACTS:
Victor Haya the leader of the American People’s Revolutionary Party
together with other members of the same was prosecuted on a
charge of military rebellion in Peru. Columbia granted asylum to
 Haya and requested the government of Peru to give Haya a safe
conduct. Both Peru and Columbia agreed to have the case decided
by the ICJ.
DECISION:
Columbia had not proved the existence, either regionally or locally,
of a constant and uniform practice of unilateral qualification as a
right of the State of refuge and an obligation upon the territorial
State.
It therefor followed that Columbia as the State granting
asylum, was not competent to qualify the nature of the offense by
the unilateral and definitive decision binding on Peru.
(Failure to prove that the customary law of Columbia is also binding
on Peru.)
c. GENERALITY OF THE PRACTICE OF STATES
 Uniformity and generality of practice need not be complete, but
must be substantial.
 Nicaragua vs US
In order to deduce the existence of customary rules, the Court deems
it sufficient that the conduct of the states should, in general be
consistent with such rules, and that instances of state conduct
inconsistent with a given rule should generally have been treated as
as breaches of that rule, not as indications of the recognition of a new
rule.
2.PSYCHOLOGICAL/SUBJECTIVE FACTOR
 Why states behave the way they do
 Once the existence of state practice has been established, it becomes
necessary to determine why states behave the way they do.
Opinion juris
 The belief that a certain form of behavior is obligatory, is what
makes practice an international rule. Without it, practice is not
law…
 Nicaragua vs US
…for a new customary rule to be formed, not only must the acts
concerned ‘amount to a settled practice’ but they must be
accompanied by the opinion juris sive necessitates. Either the States
taking such action or other States in a position to react to it, must have
behaved so that their conduct is “evidence of a belief that this practice
is rendered obligatory by the existence of a rule of law requiring it.
Would dissenting states also be bound by custom?
A: YES. Unless, they had consistently objected to it while the custom was
merely in the process of formation. Dissent, however, protects only the
dissenter and does not apply to other states. Moreover a state joining the
international law system for the first time after a practice has become law is
bound by such practice.
ANGLO-NORWEGIAN FISHERIES CASE
 The authority usually use for a dissenting case.
 A coastline delimitation rule put forward by England “would appear
to be inapplicable as against Norway, in as much as she has always
opposed any attempt to apply it to the Norwegian coast.
Evidence of state practice and opinion juris
 Various forms of evidence may point to state practice. These can be:
S-T-D-C
a. Treaties;
b. Diplomatic correspondence;
c. Statements of national leaders and political advisers;
d. Conduct of states;
 By themselves however, they do not constitute customary law unless
characterized by opinio juris.
 The existence of opinion juris is a matter of proof.
 The burden of proving its existence falls on the state claiming it.
Is there such a thing as instant custom?
A: YES. What is referred to as instant custom is not the product of constant
and prolonged practice. Rather it comes about as a spontaneous activity of
great number of states supporting a specific line of action.
MARTENS CLAUSE
 The Marten’s clause refer to a paragraph found in the 1899 Hague
Peace Convention.
 It states:
 “Until a more complete code of laws of war has been issued, the High
contracting parties deem it expedient to declare that, in cases not
included in the Regulations adopted by them, the inhabitants and
belligerents remain under the protection and the rule of the principles
of the law of nations as they result from the usages established
among civilized peoples, from the laws of humanity, and the dictates
of the public conscience.
 What the clause does is to put the laws of humanity and the dictates
of public conscience on the same level as usages of states or usus
 thus suggesting that even without practice or usus or at least without
consistent practice there can emerge a principle of law based n laws
of humanity and the dictates of public conscience. In other words, one
need not wait for thousands of civilians to be killed before a ban
becomes effective.
(ICJ, Legality of the Threat or Use of Nuclear Weapons)
TREATIES (bilateral/unilateral)
 Another source of International Law
 Treaties determine the rights and duties of states just as individual
rights are determined by contracts.
 Their binding force comes from the voluntary decision of sovereign
states to obligate themselves to a mode of behavior.
 If the treaty is intended to be declaratory of customary law, it may be
seen as evidence of customary law.
 Normally treaties and custom may be complimentary in Nicaragua vs
US, adherence to treaties can be indicative also of adherence to
practice as opinion juris.
What happens when treaty and custom contradict each other?
 If the treaty comes later than a particular custom, as between
parties to the treaty, the treaty should prevail. A treaty manifest a
deliberate choice of the parties and the principle of pacta sunt
servanda should be followed.
 However, if a later treaty is contrary to a customary rule that has the
status of jus cogens, custom will prevail. This is because of Article
53 of the Vienna Convention on the Law of Treaties:
“A treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of the
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.
 In a situation where custom develops after a treaty, the rule is not
clear. The logical rule (perhaps) should be that the later custom,
being the expression of a later will, should prevail. In practice
however an attempt is made to keep the treaty alive by efforts at
reconciling a treaty with the developing custom.
GENERAL PRINCIPLES OF LAW RECOGNIZED BY CIVILIZED
NATIONS
 General principles of law recognized by or common to the world’s
major legal systems. This has reference not to principles of
international law but to principles of municipal law common to the
legal system of the world.
PUBLICIST
-Institutions which write on international law.
 The International Law Comission -organ of the U.N
 Institut de Droit International – the International Law Association, a
multinational body
 Revised Restatement of Foreign Relations Law of the United States;
 Publication of the Hague Academy of International Law
EQUITY
 Equity when accepted, is an instrument whereby conventional or
customary law may be supplemented or modified in a order to
achieve justice.
 It has both a procedural and substantive aspect.
EQUITY (PROCEDURAL):
 Equity means a mandate given to a judge to exercise discretion in
order to achieve a determination that is more equitable and fair.
KINDS OF EQUITY
1. intra legem (within the law)
 The law is adapted to the facts of the case.
2. praeter legem (beyond the law)
 The law is used to fill the gaps within the law.
3. contra legem (against the law)
 The refusal to apply the law which is seen as unjust.
Maxims of Equity:
 Equality is equity. He who seeks equity must do equity. It is in line
with such maxim that “a court of equity refuses relief to a plaintiff
whose conduct in regard to the subject-matter of the litigation has
been improper.
 It is an important principle of equity that where two parties have
assumed an identical or a reciprocal obligation , one party which
is engaged in a continuing non-performance of that obligation by
the other party.
(Diversion of Water from the Meusse)
OTHER SUPPLEMENTARY EVIDENCE
1. UN RESOLUTIONS
 These are declarations of legal principles and Resolutions by the
United Nations are generally considered merely recommendatory.
  When they are supported by all the states, they are an expression of
opinion juris communis.
 Resolutions can also be a reflection of what has become customary
law.
2. SOFT LAW/NON-TREAT AGREEMENTS
 These are international agreements not concluded as treaties and
therefore not covered by the Vienna Convention on the Law of
Treaties
 Soft law plays an important role in international relations because
often states prefer non-treaty obligations as a simpler and more
flexible foundation for their future relations.
 Other sources of soft law are administrative procedures that are
carried out with varying degrees of consistency and uniformity that
may eventually ripen into customary law or become formalized later
on in treaties
CHAPTER 3
THE LAW OF TREATIES
TREATIES (most commonly called as international agreement)
 Treaties are international agreement concluded between states in
written form and governed by international law , whether embodied
in a single instrument or in two more related instruments and
whatever its particular designation.
(Vienna Convention, Qatar vs Bahrain)
 The Vienna Convention applies to international agreements that
satisfy the Convention’s definition, specifically that they be in writing
and reflective of the intention of the parties to be bound, and
governed by international law. Only written agreements that are
new, come under the provisions of the Vienna Convention.
 Treaties can assume various names. They can be conventions, pacts,
covenants, charters, protocols, concordat, modus vivendi, etc.
 Treaties represent the most deliberate form of commitment through
which governments cooperate with one another.
 In the absence of an international agreements are a convenient tool
through which states are able to project common expectations.
QATAR V BAHRAIN
 The exchange of notes between the two heads of state was
considered an international agreement.
NUCLEAR TEST CASES: AUSTRALIA V FRANCE, NEW ZEALAND V
FRANCE
FACTS:
France was a signatory to the Nuclear Test Ban Treaty. France continued to
conduct Nuclear test in the South Pacific. Both Australia and France file a
protest. The case however was taken off the Court’s list without a decision
when France announced by a series of unilateral announcements that it
would conduct no further test.
THE COURT’S COMMENT:
It is well recognized that declarations made by way of unilateral acts
concerning legal or factual situations, may have the effect of creating legal
obligations. When it is the intention of the State making the declaration that
it should become bound according to its terms that intention confers on the
declaration the character of a legal undertaking, the State being legally forth
required to follow a course of conduct consistent with the declaration . an
undertaking of this kind if given publicly, and with an intent to be bound,
even though not made within the context of international negotiations is
binding.
COURT’S RATIONALE:
1. The commitment was very specific.
2. There was a clear intent to be bound.
FUNCTION OF TREATIES
I-I-T-C-H-I
1. Treaties are sources of INTERNATIONAL AGREEMENT.
2. Treaties serve as charter of INTERNATIONAL ORGANIZATIONS.
3. Treaties are used to transfer TERRITORIES
4. Treaties are used to regulate COMMERCIAL RELATIONS.
5. Treaties settle disputes, protect HUMAN RELATIONS, and
6. Treaties guarantee INVESTMENTS.
The different kinds of treaties may be classified from the standpoint of their
relevance as source of international law:
a. MULTILATERAL TREATIES
 Create norms which are the basis for a general rule of law.
 They are either
1. codification treaties;
2. law making treaties; (or they may have the character of both)
b. TREATIE THAT CREATE COLLABORATIVE MECHANISM
  These can be: important step is the consent to be bound. There are various ways
1. Universal scope; by which consent to be bound is expressed:
2. Regional; Article 11, Vienna Convention
 Operate through the organs of the different states. The consent of a State to be bound by a treaty may be expressed by
1. signature
c. BILATERAL TREATIES 2. exchange of instruments constituting a treaty
 Many of these are in the nature of contractual agreements which 3. ratification,
create shared expectations such as trade agreements in various 4. acceptance,
forms. 5. approval or accession or
 They are sometimes called contract treaties 6. any means agreed upon

○While treaties are generally binding only on the parties, the number of the 4. ACCESSION TO A TREATY
contracting parties and the generality of the acceptance of specific rules  States which did not participate in the initial negotiation may also
created by the treaty can have the effect of creating a universal law in much express their consent to be bound by “accession”.
the same way that general practice suffices to create customary law.  Article 15 of the Convention says:
The consent of a state to be bound by a treaty is expressed by accession
THE MAKING OF TREATIES when:
N-A-CA-R-E-A
a. the treaty provides that such consent may be expressed by that State
1. NEGOTIATION by means of accession;
2. AUTHENTIFICATION OF TEXT b. it is otherwise established that the negotiating states were agreed that
3. CONSENT TO BE BOUND such consent may be expressed by that State by means of accession; or
4. ACCESSION TO A TREATY c. all the parties have subsequently agreed that such consent may be
5. RESERVATIONS expressed by that State by means of accession;
6. ENTRY INTO FORCE OF TREATIES
7. APPLICATION OF TREATIES 5. RESERVATIONS
 A unilateral statement no matter how phrased or named, by a State
A. NEGOTIATION when signing, ratifying, accepting, approving, or acceding to a treaty,
 Negotiation is done through foreign ministries. whereby it purports to exclude or to modify the legal effect of certain
 Larger multilateral treaties are negotiated I diplomatic conferences provisions of the treaty in their application to that state.
which are run like a legislative body. (Article 2, Vienna Convention)
 In bilateral treaties, a reservation by one party means rejection of the
Power to Negotiate treaty and necessitates re-negotiation. Reservations therefore, are
 The negotiators must possess the power to negotiate. An act relating meant only for multilateral treaty.
to the conclusion of treaty by one who has no proper authorization
has no legal effect unless confirmed by his estate.
Must a reservation be consented to by all parties for it to be effective?
It depends.
2. AUTHENTIFICATION OF TEXT A state which has made and maintained a reservation which has been
 Negotiations conclude with the signing of the document. The objected to by one or more parties to the Convention but not by others, can
signatures serve as authentification of the document. be regarded as a party to the convention if the reservation is compatible
with the object and purpose of the Convention. Compatibility could be
3. CONSENT TO BE BOUND decided by states individually since “ if a party to the Convention objects to
 Once the document has been signed, there are stages which follow reservation which it considers incompatible with the object and purpose of
which culminate in making the document binding. The most
the Convention, it can consider that the reserving state is not a party to the
Convention. (ICJ, Reservations to the Genocide Convention)
6. ENTRY INTO FORCE OF TREATIES
 Treaties enter into force on the date agreed upon by the parties.
Where no date is indicated, the treaty enters into force once consent
has been given.
7. APPLICATION OF TREATIES
First Fundamental Rule
 Pacta sunt servanda
 Every treaty in force is binding upon by the parties to it and must be
performed by them in good faith. (Article 26 of the Vienna
Convention)
Second Fundamental Rule
 A Party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty. (Article 46 of the
Vienna Convention)
As to Territorial Scope of (treaty) Applicability
 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. (Article 29 of the Vienna Convention)
INTERPRETATION OF TREATIES
1. Objective Approach (Article 31(1) Vienna Convention)
 Interpretation according to the ordinary meaning of the words.
2. Teleological Approach (Article 31(2) Vienna Convention)
 Interpretation according to the telos or purpose of the treaty.
3. Subjective Approach (Article 31(3,4) Vienna Convention)
 Honors special meaning given by the parties.
INVALIDITY OF TREATIES
The usual grounds for invalidation of contracts can also invalidate a treaty:
1. Error (Article 48)
2. Fraud ( Article 49)
3. Corruption of a representative of a State (Article 50)
4. Coercion of a representative of a State (Article 51)
5. Coercion of a State by the threat or use of force (Article 52)
6. Violation of jus cogens (Article 53)
Rules considered to be jus cogens:
a. A treaty contemplating an unlawful use of force contrary to the provisions
of the charter
b. A treaty contemplating the performance of any other act criminal under
international law
c. A treaty contemplating or conniving towards the commission of acts such
as trade in slaves, piracy, or genocide.
AMENDMENT AND MODIFICATION
 Amendment is a formal revision done with the participation, at least
in its initial stage, by all the parties to the treaty.
 Modification involves only some of the parties.
 The general rule on amendments, found in article 39, is that a
“treaty may be amended by agreement of the parties.”
TERMINATION OF TREATIES
 A treaty may be terminated or suspended according to the terms of
the treaty or with the consent of the parties.
 A treaty with a period may also expire.
 A treaty may also end when the purpose of the treaty has already
been achieved.
 But a mere change of government or severance of diplomatic
relations does not terminate or suspend a treaty.
Three other modes of terminating a treaty:
a. Material Breach
b. Impossibility of performance
c. Change of fundamental conditions (Rebus sic stantibus)
 Modern approach to common law principle of Rebus sic stantibus is
restrictive.
“international law admits that a fundamental change in the circumstances
which determined the parties to accept a treaty, if it has resulted in a
radical transformation of the extent of the obligations imposed by it, may,
under certain conditions, afford the party affected a ground for invoking
the termination or suspension of the treaty. But the changes must have
increased the burden of the obligation to be executed to the extent of
rendering performance something essentially different from the original
intention.”(Fisheries Jurisdiction Case UK V Iceland)
 AUTHORITY TO TERMINATE
 The authority to terminate should also belong to the one who has the
authority to enter into the treaty.
 In the Philippines as well as the United States, the authority to
conclude treaties is shared between the Senate and the President.

Can the President unilaterally terminate a treaty?

A: In Goldwater v Carter, no decision was reached except to say that
the matter was not yet ripe for judicial review.

SUCCESSION TO TREATIES
Q: When one State ceases to exist and is succeeded by another on
the same territory, is the new state bound by the commitments
made by its predecessor?

A: YES. (CLEAN SLATE RULE)

A newly independent state is not bound to maintain in force, or to become
a party to, any treaty by reason only of the fact that at the date of the
succession of States the treaty was in force in respect of the territory to
which the succession of States relates.” But a new state may agree to be
bound by the treaties made by its predecessors. (Article 16)

The clean slate rule however does not apply to treaties affecting boundary
regimes.

Article 11. Boundary regimes

“A succession of States does not as such affect: a) boundary established by a
treaty; or b) obligations and rights established by a treaty and relating to the
regime of a boundary.”
CHAPTER 4 “A party may not invoke the provisions of its internal law as justification for
INTERNATIONAL LAW AND MUNICIPAL LAW its failure to perform a treaty.”

When there is conflict between international law and domestic law, which is Article 13 of the Declaration of Rights and Duties of States
to prevail? (adopted by the International Law Commission in 1949)
“ Every state has the duty to carry out in good faith its obligations arising
2 THEORIES from treaties and other sources of international law, and may not invoke
1. DUALIST THEORY/PLURALIST THEORY provisions
 When international law and domestic law conflict, municipal law
must prevail. The dualists are positivist with a strong emphasis on  Thus a state which has violated a provision of international law
state sovereignty. cannot justify itself by recourse to its domestic law. Moreover, a state
 According to dualist theory, International law and municipal law which has entered into an international agreement must modify its
differ: law to make it conform to the agreement.

INTERNATIONAL MUNICIPAL LAW INTERNATIONAL LAW IN DOMESTIC LAW

LAW
AS TO SOURCE Sources of Municipal law is a Q: How does international law become part of domestic law for dualist?
international law are product of local A: In this regard there are 2 theories:
treaties and custom custom or of
Grown among states. legislation 1. Doctrine of Transformation
AS TO SUBSTANCE A law between A law of the  For international law to become a part of domestic law it must be
sovereign states. sovereign over expressly and specifically transformed into domestic law through the
individuals. appropriate constitutional machinery such as an act of Congress or
Parliament.
2. MONISTIC THEORY/MONISM  This doctrine flows by analogy from what is applicable to treaties.
 Under this theory, international law and domestic law belong to only Treaties do not become part of the law of a state unless it is
one system of law. consented by the state.

2 MONIST THEORIES 2. Doctrine of Incorporation

1. Municipal law subsumes and is superior to international law.
2. International law is superior to domestic law.
 The superiority of international law is seen as flowing from a deep
suspicion of local sovereigns and from the conviction that
international law can imbue the domestic order with a sense of
moral purpose.
MUNICIPAL LAW IN INTERNATIONAL LAW
 At present the prevailing practice accepts dualism at least in its
postulate that there are two legal systems.
Treaty Provisions recognizing dualism:
Article 27, Vienna Convention on the Law of Treaties
The law of nations, whenever any question arises which is properly the
object of its jurisdiction, is here adopted in its full extent by the common
law, and it is held to be part of the law of the land.
Q: What does Philippine law follow?
 In the case of treaties as international law, they become part
of the law of the land when concurred in by the Senate in
accordance with Article VII, Section 21 of the Constitution
which sets down the mechanism for transforming a treaty
into binding municipal law.
 With regard to customary law and treaties which have
become customary law, by saying that the Philippines
“adopts the generally accepted principles of international law
as part of the law of the land: the Constitution manifest its
adherence to the dualist theory and at the same time adopts
 the incorporation theory and thereby makes international law
part of domestic law.
 International law therefore can be used by Philippine courts
to settle domestic disputes in much the same way that they
would use the Civil Code or the Penal Code and other laws
passed by the Congress.
Q: What elements of international law become part of Philippine law by
incorporation through Article II, Section 2?
A: Since treaties become a part of Philippine law only by ratification, the
principle of incorporation applies only to customary law and to treaties
which have become part of customary law.
Conflict between International Law and Domestic Law: International
Rule
 It depends on whether the case goes to domestic court or to an
international tribunal. It is an established principle that, before an
international tribunal, a state may not plead its own law as an
excuse for failure to comply with international law.
 Every state has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it
may not invoke provisions or its laws as an excuse for failure to
perform this duty.
 In advisory opinion on Exchange of Greek and Turkish Populations
Case the Court, said: A state which has contracted valid international
obligations is bound to make in its legislation such modifications as
may be necessary to ensure the fulfillment of the obligations
undertaken.
 But an exemption is made to the rule by Article 46 of the Vienna
Convention where the constitutional violation was manifest and
concerned a rule of its internal law of fundamental importance. The
same article defines the violation as manifest if it would be
objectively evident to any State conducting itself in the matter in
accordance with normal practice and in good faith. If the treaty that
is declared unconstitutional, however, does not come under the
exception, the treaty can be ignored domestically but only at the
risk of international repercussions before an international court.
Conflict between International Law and Domestic Law: Municipal Rule
When the conflict comes from a domestic court, the same is bound to apply
the local law. In international practice however, courts are very rarely
confronted with such a problem. The reason for this is that the courts are
generally able to give to a domestic law a construction which does not
conflict with international law.
 Conflict may arise between a state’s Constitution and international
law. Conceivably, however there should be no such conflict between
the Philippine Constitution or statutes on the one hand and
customary international law on the other because the Constitution
when formulated accepted the general principles of international law
as part of the law of the land.
 Should a conflict arise between an international agreement and the
Constitution the treaty would not be valid and operative as domestic
law. The Constitution in Article VIII, Section 5, 2(a) explicitly
recognizes the power of the Supreme Court to declare a treaty
unconstitutional.
 This does not mean however that a treaty that has been declared
unconstitutional loses its character as international law. Under the
dualist theory, which the Constitution accepts the
unconstitutionality of a treaty is purely a domestic matter. As Article
27 of the Vienna Convention on the Law of Treaties says,” A party
may not invoke the provisions of its internal law as justification for
its failure to perform a treaty.
Tanada vs Angara
Issue: Whether or not the parity provisions and national treatment clauses
scattered in various parts of the WTO Agreement violate the letter, spirit and
intent of the constitutionally mandated “economic nationalism” under Arts.
II and XII of the Constitution?
Decision: NO.” By its very title, Articles II of the Constitution is a
declaration of principles and state policies. These principles in Article II are
not intended to be self-executing principle ready for enforcement through
the courts. They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its
enactment of laws.”
Kilosbayan, Incorporated vs Morato
“The priciples and state policies enumerated in Article II and some sections
of Article XII are not self-executing provisions, the disregard of which can
give rise to a cause of action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for legislation.”
 The position of the Court in Tanada is a retreat from the earlier case
of Manila Prince Hotel v GSIS where the Court says that the
command of Article XII, Section 10 was mandatory and self-
executory.
 From its very words, the provision does not require any legislation to
put it in operation. It is per se judicially enforceable. However as the
 Constitutional provision states, it is only enforceable only in regard
‘to the grants of rights, privileges, and concessions covering national
economy and patrimony” and not to every aspect of trade and
commerce. It refers to exceptions and not the rule
 The (Philippine) Court, has adopted the rule that when a statute
which is subsequent in time is inconsistent with a treaty, the statute
to the extent of conflict renders the treaty null.
 But again, the rule applies only in the domestic sphere. The treaty
even if contrary to later statute, remain as international law; while
an international tribunal would not have the power to reverse the
nullification of the treaty in domestic law, it can take appropriate
action in favor of an aggrieved state
CHAPTER 5
SUBJECTS OF INTERNATIONAL LAW: STATES
Subjects of International Law
 Entities endowed with rights and obligations in the international
order and possessing the capacity to take a certain kinds of action
on the international plane.
 Those who have international personality and are actors in the
international legal system.
 The subjects of law in the legal system are not necessarily identical
in their nature or in the extent of their rights, and their nature
depends upon the needs of the community. Throughout its history,
the development of international law has been influenced by the
requirements of international life, and the progressive increase in the
collective activities of States has already given rise to instances of
action upon the international plane by certain entities which are not
States. (Reparations Case)
Objects of International Law
 Those who indirectly have rights under or are beneficiaries of
international law through subjects of international law.
STATES
 A community of persons more or less numerous, permanently
occupying a definite portion of territory, independent of external
control, and possessing an organized government to which the great
body of inhabitants render habitual obedience .
STATES: COMMENCEMENT OF THEIR EXISTENCE
What makes a State (TRADITIONAL)
a. Permanent POPULATION;
b. Defined TERRITORY;
c. GOVERNMENT;
d. CAPACITY to enter into relations with other states;
What makes a State (MONTEVIEDO CONVENTION)
a. PEOPLE
 A community of persons sufficient in number and capable of
maintaining the permanent existence of the community and held
together by a common bond of law. No minimum population is
required.
b. TERRITORY
 A definite territory over which an entity exercises permanent
sovereignty.
 An entity may satisfy the territorial requirement for statehood even
if its boundaries have not been finally settled, if one or more of its
boundaries are disputed or if some of its territory is claimed by
another state. An entity does not necessarily cease to be a state
even if all its territory has been occupied by a foreign power or if it
has otherwise lost control of it temporarily.(Restatement (Third) on
the Foreign Relations Law of the United States)
c. GOVERNMENT
 That institution or that aggregate of institution by which an
independent society makes and carries out those rules of action
which are necessary to enable men to live in a social state, or which
are imposed upon the people forming that society by those who
possess the power or authority of prescribing them.
 For the purposes of international law, it is the national government
that has legal personality and it is the national government that is
internationally responsible for the actions of other agencies and
instrumentalities of the state.
 A temporary absence of government, for instance during an
occupation by a foreign power, does not terminate the existence of a
state.
d. SELF-DETERMINATION
PRINCIPLE OF SELF DETERMINATION
 All people have the right of self-determination. By virtue of that right
they freely determine their political status and freely pursue their
economic, social, cultural, development.” (International Covenant on
Civil and Political Rights and the International Covenant on Economic,
Social, and Cultural Rights)
Claims to Self-Determination (LEVELS) ISSUES:
FIRST: The establishment of new states that is the claim by a group within 1: What was the status of the Tenneco Regime in international law?
an established state to break away and form a new entity. 2. Was Great Britain estopped from pursuing its claims because it never
SECOND: Claims to be free from external coercion, or the claim to overthrow recognized the Tenneco government either de jure or de facto?
effective rulers and establish a new government, that is, the assertion of the
right of revolution, or the claim of people within an entity to be given RULING:
autonomy. 1.The non-recognition by other nations of a government claiming to be a
national personality, it is usually appropriate evidence that it has not attained
RECOGNITION OF STATES the independence and control entitling it by international law to be classed as
such. But when recognition is by such nations determined by inquiry, not into
RECOGNITION its de facto sovereignty and complete governmental control, but into its
 The act of acknowledging the capacity of an entity to exercise rights illegitimacy or irregularity of origin, their non-recognition loses something of
belonging to statehood. evidential weight.
Q: Can an entity claim to be a state before it is recognized by other
states? 2.
A: YES. Declaratory Theory
 Recognition is merely declaratory of the existence of the state and
that its being a state depends upon its possession of the required
elements and not upon recognition. A recognizing state merely
accepts an already existing situation. (The weight of authority favors
the declaratory view)
NO. Constitutive Theory
 A recognition constitutes a state. A recognition is what makes a state
a state and confers legal personality on the entity.

States may decide to recognize an entity as a state even if it does not have
all the elements of a state found in the Monteviedo Convention.

RECOGNITION OF GOVERNMENT
 The act of acknowledging the capacity of an entity to exercise powers
of government of a state.

Two Cases Involving recognition of government:

Great Britain vs Costa Rica (TINOCO ARBITRATION)

FACTS:
The Government of Costa Rica
Under President Alfredo Gonzalez, was overthrown by Federico Tenneco.
Tenneco’s government concluded certain contracts with British corporations.
After Tenneco’s retirement, the old constitution was restored and a law of
nullities was passed annulling the contracts concluded during Tenneco’s
regime. Great Britain made claims on the basis of the injuries done to its
nationals caused by the annulments.