PUBLIC INTERNATIONAL LAW NOTES (SOURCE: BERNAS)
THE NATURE OF INTERNATIONAL LAW
What Is international law?
• Body of rules and principles of action which are
binding upon civilized states in their relations to one
another (traditional definition)
• Today, sovereign states remain as principal
subjects of international law, but now joined by
international organizations and individuals, giving
way to this definition:
Law which deals 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 (Restatement
of Foreign Relations Law of the US)
Scope of international law
The expansion of the scope is revolutionary, as affected by
various factors such as rapid changes in technology;
multiplication of the number of states with differing
backgrounds and achieving loose forms of cooperation;
fear of war; rising demands for social reform.
Topics covered: (Re-Di-Pro-Ma-Re)
(a) Regulation of space expeditions
(b) Division of the ocean floor
(c) Protection of human rights
(d) Management of the international financial system
(e) Regulation of the environment
Is international law a law?
The basic challenge to international law as law is the claim
that there can be no law binding sovereign states. There
exists no international legislative body (GA-UN resolutions
generally not binding) nor international executive (Security
Council is often restricted by the veto power, nor a central
authority that can make judgments binding on states (states
are bound only when they consent the same).
These objections are based on an exaggerated notion of
sovereignty as embodying an individualist regime.
However, the reality is social interdependence and the
predominance of the general interest. There is general
respect for law because of the possible consequences of
defiance either to oneself or to the larger society.
Theories about international law
(a) Command theory – law consists of commands
originating from a sovereign and backed up by
threats of sanction if disobeyed
• Not law, it does not come from a command of
a sovereign; also treaties and customs
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• Generally discredited since international law is
not seen as commands but as principles for
free and orderly interaction
(b) Consensual theory – international law derives its
binding force from the consent of states
• Treaties and voluntary adherence to common
practices are seen as expressions of consent,
however, there are binding rules which do not
derive from consent
(c) Natural theory – law is derived by reason from the
nature of man
• Application of natural reason to the nature of
the state-person
• Most customary law and generally accepted
principles of law are expression of what
traditionally was called natural law
Note: In the ultimate analysis, however, the best answer is
pragmatic. Fundamentally, there is a general respect for
law and also there is concern about the consequences of
defiance either to oneself or to the larger society.
International law is law because it is seen as such by states
and other subjects of international law.
Public and private international law
Public international law – governs relationships between
and among states and also their relations with international
organizations and individual persons
Private international law – domestic law which deals with
cases where foreign law intrudes in the domestic sphere
where there are questions of the applicability of foreign law
or the role of foreign courts
Brief historical development of international law
From ancient law to the League of Nations
• Ancient international law governed exchange of
diplomatic emissaries, peace treaties, etc. Jus
gentium, seen as a law “common to all men,”
became the law of the vast Roman empire
• Modern international law began with the birth of
nation-states in the Medieval Age. Governing
principles were derived from Roman Law or Canon
Law.
• Milestones: Peace of Westphalia (1618-1648)
ending the 30 Years War; Congress of Vienna
(1815) ending the Napoleonic Wars; Covenant of
the League of Nations (1920) ending WWI, which
consisted of 43 states
From end of WWII to end of Cold War
The UN was formed in 1945, marking the shift of power
away from Europe and the beginning of a truly universal
institution. From such bore 3 major groupings of states:
• Western states – in international legislation,
insisted on 2 points: (1) legal provisions must be
clear and precise and (2) any substantive rule must
be accompanied by an implementation mechanism
that can spot and correct violations
• Socialist states – led by Soviet Union; sought to
avert Western intrusion into domestic affairs while
maintaining good relations for the sake of
economic and commercial interchange
• Developing countries – formed the majority;
consisted mainly of former colonies
The end of the Cold War
The dissolution of the Soviet Union resulted in the end of
the Cold War with re-emergence of international relations
based on multiply sources of power and not mainly on
ideology.
At present, there is only one superpower – US, acting as
world policeman and global mediator.
SOURCES OF INTERNATIONAL LAW
What sources are
In the absence of a centralized legislative, executive and
judicial structure, there is no single body able to legislate
and there is no system of courts with compulsive power to
decide what the law is nor is there a centralized repository
of international law.
Classified into:
Formal sources – various processes by which rules come
into existence (ex. legislation, treaty, judicial decision
making; practice of states)
Material sources – referred to as ‘evidence’; concerned
with the substance and content of the obligation (state
practice, UN res, treaties, etc. insofar as they identify what
the obligations are.
Sources: (CTGJ)
(a) Custom
(b) Treaties and other international agreements
(c) Generally recognized principles of law
(d) Judicial decisions and teachings of highly qualified
and recognized publicists
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ART. 38, Statute of the International Court of
Justice.
1. The Court, whose function is to decide in
accordance with international law such
disputes as are submitted to it, shall apply:
(a) international conventions, whether general
or particular, establishing rules expressly
recognized by contesting states;
(b) international custom, as evidence of a
general practice accepted as law;
(c) the general principles of law recognized by
civilized nations;
(d) subject to the provisions of Article 59,
judicial decisions and the teachings of the
most highly qualified publicists of the various
nations, as subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the power
of the Court to decide ex aequo et bono, if
the parties agree thereto.
Restatement (Third) of Foreign Relations Law of
the US
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 rules of international law
where appropriate.
Custom or customary law
Custom – a general and consistent practice of states
followed by them from a sense of legal obligation
Elements:
(1) material (state practice)
(2) subjective factor (opinio juris)
(a) Material factor – the practice of states (usus);
basically, how states behave
Elements:
(i) Duration (diuturnitas)
Long – almost immemorial
Short – does not exclude possibility of practice
maturing into custom provided other conditions
are satisfied
(ii) Consistency – continuity and repetition
(iii) Generality of the practice of states – need
not be in absolute conformity, but must be
substantial
Sample evidence: may be treaties, diplomatic
correspondence, statements of national leaders
and political advisers, conduct of states
(b) Psychological or subjective factor – why they
behave the way they do
Opinio juris (or opinio juris sive necessitatis), or
the belief that a certain form of behavior is
obligatory, is what makes practice an international
rule.
• Dissenting states may be bound by custom,
unless they had consistently objected to it
while the custom was merely in the process of
formation. This protects only the dissenter and
does not apply to other states.
• Subsequent contrary practice casts doubt as
on the alleged law on account of conflicting and
discordant practice of states. If contrary
practice should gain general acceptance, it
might instead become the law.
Sample evidence: consent to UN resolutions (note:
matter of proof burdened upon the state claiming)
Instant custom
It is not the product of constant and prolonged practice,
rather, from a spontaneous activity of a great number of
states supporting a specific line of action.
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The Martens Clause (1899 Hague Peace Convention)
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.
• Also found in 1949 Vienna Convention and First
Additional Protocol of 1977
• Put the laws of humanity and the dictates of public
conscience on the same level as usages of states
– even without practice or usus, there can emerge
a principle of law based on the same.
Treaties
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.
Generally, it binds only the parties, however, the number of
contracting parties and generality of its acceptance can
have the same effect of creating a universal law.
Treaty v. custom
Normally, both can be complimentary in a way that treaties
can be indicative of adherence to practice as opinion juris.
In cases where a TREATY COMES LATER THAN A
CUSTOM, the TREATY SHOULD PREVAIL because the
former manifests (a) a deliberate choice of the parties and
(b) the principle of pacta sunt servanda should be followed
In cases where a LATER TREATY IS CONTRARY TO A
CUSTOMARY RULE THAT HAS THE STATUS OF JUS
COGENS, the CUSTOM WILL PREVAIL as provided for in
Article 53 of the Vienna Convention on the law of Treaties:
Article 53, Vienna Convention on 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 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.
In cases where CUSTOM DEVELOPS AFTER A TREATY,
the rule is not clear. In practice, 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
This has reference not to principles of international law but
to principals of municipal law common to the legal systems
of the world.
They belong to no particular system of law but are evidence
rather of the fundamental unity of law, which most, have
either become part of customary law or incorporated into
conventional international law.
Examples:
(a) Renunciation of war as an instrument of national
policy
(b) Principle of sovereign immunity
(c) A person’s right to life, liberty and due process
(d) Pacta sunt servanda
Judicial decisions
As provided for in Article 38, such is the subsidiary means
for the determination of the rules of law, subject to Article
59, which reads:
ART. 59, Statute of the International Court of
Justice
The decisions of the court have no binding force
except between the parties and in respect of that
particular case.
Meaning, the decisions of the International Court of
Justice (ICJ) DO NOT constitute stare decisis.
However, the decisions are regarded as highly persuasive
in international law circles and have contributed to the
formulation of principles that have become international
law.
The teachings and highly qualified writers and
‘publicists’
The ICJ is generally reluctant to refer to writers, but they
are often taken into consideration. The extent to which they
are referred to depends on the tradition of the court or of
individual judges.
Publicists – institutions which write on international law;
generally government sponsored, hence, they bear a
potential for national bias
Examples:
(a) International Law Commission (UN)
(b) Institut de Droit International
(c) International Law Assoc. (multinational body)
(d) (Revised) Restatement of Foreign Relations Law of
the United States;
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(e) Annual Publication of the Hague Academy of
International Law
Equity
ICJ has not been expressly authorized by its Statute to
apply equity as distinguished from law. However, the Court
has some freedom to consider principles of equity as part
of the international which it must apply. (equity has an
established place in the legal system in many nations)
Equity, when accepted, is an instrument whereby
conventional or customary law may be supplemented or
modified in order to achieve justice.
• Procedural aspect – a mandate given to a judge to
exercise discretion in order to achieve a
determination that more equitable and fairer
Kinds:
(a) Intra legem (within the law) – adapted to the facts
of the case
(b) Praeter legem (beyond the law) – used to fill the
gaps within the law
(c) Contra legem (against the law) – refusal to apply
the law which is seen as unjust
Other supplementary evidence
UN Resolutions
Such are considered merely recommendatory. But if they
are supported by all the states, they are an expression of
opinio juris communis.
“Soft Law” or (Non-Treaty Agreements)
• May be international agreements not concluded
as treaties and therefore not covered by the
Vienna Convention on the Law of Treaties
• May be administrative rules which guide the
practice of states in relation to international
organizations (in this case, may eventually ripen
into customary law or formalized in treaties)
• States prefer such as a simpler and more flexible
foundation for their future relations so as to exclude
the application of treaty or customary law on the
consequences of a breach of obligations
 THE LAW OF TREATIES
Definition of Treaties
An international agreement concluded between States in
written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments and whatever its particular designation. (1969
Vienna Convention on the Law of Treaties)
Vienna Convention on the Law of Treaties (VCLT)
• Governs treaties between states
• Entered into force in January 1980; adopted on
March 26, 1986
• Not retroactive in effect, but contains customary
law precepts antedating 1969
• Applies to international agreements that satisfy the
above definition, specifically:
(1) It be in writing;
(2) Reflective of intention of parties to be bound;
(3) Governed by international law.
Form of Treaties
No particular form is prescribed. However, only written
agreements that are new, come under the provisions of the
Vienna Convention.
Qatar v. Bahrain: The Minutes referring to the consultation
between the two states’ foreign ministers are commitments
accepted by their governments and is considered an
international agreement. The exchange of letters
reaffirming their obligations also constitute an international
agreement creating rights and obligations for the parties.
Norway v. Denmark: The declaration of the Norwegian
Minister (he told the Danish Minister that his government
would not make any difficulty in the settlement of the issues
over the sovereignty in Eastern Greenland) is sufficient to
bind the Norwegian government.
Nuclear Test Cases: The unilateral declaration of France
announcing it would conduct no further tests may create
legal obligations as (1) the commitment was very specific,
and there was (2) a clear intent to be bound.
European Union v. USA: The statements made by the US
(concerning Sec. 301-310 of the Trade Act of 1974) before
the Panel were a reflection of official US policy, intended to
express US understanding of its international obligations as
incorporated in domestic US law. The statements did not
represent a new US policy but the bringing of a pre-existing
US policy made in a domestic setting into an international
forum.
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Function of Treaties
They are multi-functional – sources of international law;
charter of international organizations; used to transfer
territory, regulate commercial relations, settle disputes,
protect human rights, guarantee investments, etc.
(a) Multilateral treaties – open to all states, which
create norms that are the basis for a general rule
of law; either codification treaties, or law-making
treaties, or both
(b) Treaties creating collaborative mechanism –
may be universal or regional of scope; operate
through the organs of different states
(c) Bilateral treaties – in the nature of contractual
agreements which create shared expectations (ex.
trade agreements); “contract treaties”
Note: Number of contracting parties + generality of
acceptance of specific rules = may create a universal law
Making of Treaties
1. Negotiation
Either through foreign ministries (bilateral and multilateral)
or through diplomatic conferences that run like a legislative
body (large multilateral treaties). Negotiators must possess
powers to negotiate.
Article 7. Full Powers
1. A person is considered as representing a State for the
purpose of adopting or authenticating the text of a treaty
or 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
or from other circumstances that their intention was
to consider that person as representing the State for
such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce
full powers, the following are considered as
representing their State:
(a) 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;
(b) 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;
(c) 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.
 Article 8. Subsequent Confirmation of an Act
Performed Without Authorization
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.
2. Authentication of Text
Negotiations conclude with the signing of the document.
The signatures serve as authentication.
Article 9. Adoption of the Text
1. 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.
2. 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.
Article 10. Authentication of the Text
1. The text of a treaty is established as authentic and
definitive:
(a) by such procedure as may be provided for in the text
or agreed upon by the States participating in its
drawing up; or
(b) failing such procedure, by the signature, signature
ad referendum or initialling by the representatives of
those States of the text of the treaty or of the Final
Act of a conference incorporating the text.
3. Consent to be Bound
The most important step is the consent to be bound. There
are various ways to express the same.
Note: If states consent to be bound by part or choose to
differ provisions, Article 17, VCLT provides that such is
effective only:
(a) if the treaty so permits
(b) the other contracting parties so agree
(c) if it is made clear to which of the provisions the
consent relates
Article 11. Means of Expressing Consent to be
Bound by a Treaty
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.
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Article 12. Expressed by Signature
1. The consent of a State to be bound by a treaty is
expressed by the signature of its representative when:
(a) the treaty provides that signature shall have that
effect;
(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 expressed during the
negotiation.
2. For the purposes of paragraph 1:
(a) the initialling of a text constitutes a signature of the
treaty when it is established that the negotiating
States so agreed;
(b) the signature ad referendum of a treaty by a
representative, if confirmed by his State, constitutes
a full signature of the treaty.
Article 13. Expressed by Exchange of Instruments
Constituting a Treaty
The consent of States to be bound by a treaty constituted
by instruments exchanged between them is expressed by
that exchange when:
(a) the instruments provide that their exchange shall
have that effect; or
(b) it is otherwise established that those States were
agreed that the exchange of instruments should have
that effect.
Article 14. Expressed by Ratification, Acceptance or
Approval
1. The consent of a State to be bound by a treaty is ex-
pressed by ratification when:
(a) the treaty provides for such consent to be expressed
by means of 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
negotiation.
2. The consent of a State to be bound by a treaty is ex-
pressed by acceptance or approval under conditions
similar to those which apply to ratification.
Note: 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. 21, Art.
VII, Consti)
After ratification, Article 16, VCLT provides that for
exchange (bilateral treaties) or deposit (case of multilateral
treaties) of ratification by:
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting States or to the
depositary, if so agreed.
The provision also applies to instruments of acceptance,
approval or accession.
Article 15. Expressed by Accession
The consent of a State to be bound by a treaty is ex-
pressed by accession when:
(a) the treaty provides that such consent may be
expressed by that State by means of accession;
(b) it is otherwise established that the negotiating States
were agreed that such consent may be expressed by
that State by means of accession; or
(c) all the parties have subsequently agreed that such
consent may be expressed by that State by means
of accession.
Note: Parties who did not participate in the initial negotiation
may express their consent via accession.
4. Reservations
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. (Art. 2, VCLT)
• Different from ‘interpretative declarations’ – not
meant to be a derogation from the treaty but an
expression of how a state understands its adoption
of the treaty.
• Meant only for multilateral treaties, since a
reservation by one party in a bilateral treaty means
rejection of the same and necessitates negotiation
Article 19. Formulation of Reservations
A State may, when signing, ratifying, accepting, approving
or acceding to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations,
which do not include the reservation in question, may
be made; or
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(c) in cases not failing under subparagraphs (a) and (b),
the reservation is incompatible with the object and
purpose of the treaty.
Note: A state which has made and maintained a reservation
which has been objected to by one or more parties to the
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 (ICJ on Reservations
to the Genocide Convention) – reflected in (c)
Thus, it is possible for different legal relationships to arise
among parties to the same treaty.
Article 20. Acceptance of and Objection to
Reservations
1. A reservation expressly authorized by a treaty does not
require any subsequent acceptance by the other
contracting States unless the treaty so provides.
2. When it appears from the limited number of the
negotiating States and the object and purpose of a
treaty that the application of the treaty in its entirety
between all the parties is an essential condition of the
consent of each one to be bound by the treaty, a
reservation requires acceptance by all the parties.
3. When a treaty is a constituent instrument of an
international organization and unless it otherwise
provides, a reservation requires the acceptance of the
competent organ of that organization.
4. In cases not falling under the preceding paragraphs and
unless the treaty otherwise provides:
(a) acceptance by another contracting State of a
reservation constitutes the reserving State a party to
the treaty in relation to that other State if or when the
treaty is in force for those States;
(b) an objection by another contracting State to a
reservation does not preclude the entry into force of
the treaty as between the objecting and reserving
States unless a contrary intention is definitely
expressed by the objecting State;
(c) an act expressing a State’s consent to be bound by
the treaty and containing a reservation is effective as
soon as at least one other contracting State has
accepted the reservation.
5. For the purposes of paragraphs 2 and 4 and unless the
treaty otherwise provides, a reservation is considered
to have been accepted by a State if it shall have raised
no objection to the reservation by the end of a period of
twelve months after it was notified of the reservation or
by the date on which it expressed its consent to be
bound by the treaty, whichever is later.
 Article 21. Legal Effects of Reservations and of
Objections to Reservations
1. A reservation established with regard to another party
in accordance with articles 19, 20 and 23:
(a) modifies for the reserving State in its relations with
that other party the provisions of the treaty to which
the reservation relates to the extent of the
reservation; and
(b) modifies those provisions to the same extent for that
other party in its relations with the reserving State.
2. The reservation does not modify the provisions of the
treaty for the other parties to the treaty inter se.
3. When a State objecting to a reservation has not
opposed the entry into force of the treaty between itself
and the reserving State, the provisions to which the
reservation relates do not apply as between the two
States to the extent of the reservation.
Article 22. Withdrawal of Reservations and of
Objections to Reservations
1. Unless the treaty otherwise provides, a reservation may
be withdrawn at any time and the consent of a State
which has accepted the reservation is not required for
its withdrawal.
2. Unless the treaty otherwise provides, an objection to a
reservation may be withdrawn at any time.
3. Unless the treaty otherwise provides, or it is otherwise
agreed:
(a) the withdrawal of a reservation becomes operative in
relation to another contracting State only when
notice of it has been received by that State;
(b) the withdrawal of an objection to a reservation
becomes operative only when notice of it has been
received by the State which formulated the
reservation.
Article 23. Procedure Regarding Reservations
1. A reservation, an express acceptance of a reservation
and an objection to a reservation must be formulated in
writing and communicated to the contracting States and
other States entitled to become parties to the treaty.
2. If formulated when signing the treaty subject to
ratification, acceptance or approval, a reservation must
be formally confirmed by the reserving State when
expressing its consent to be bound by the treaty. In
such a case the reservation shall be considered as
having been made on the date of its confirmation.
3. An express acceptance of, or an objection to, a
reservation made previously to confirmation of the
reservation does not itself require confirmation.
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Illustration: Philippines and the 1982 Convention of the
Law of the Sea – “Archipelagic Waters”
The provision on “archipelagic waters” under the 1982
UNCLOS conflict with the Philippines’ claim in Art. I of the
Constitution (“waters connecting the lands, irrespective of
their breadth and dimension, are internal water”).
Thus, upon ratification of the UNCLOS (Aug. 5, 1984), the
Philippines made the following reservations:
1. The signing of the Convention by the Government
of the Republic of the Philippines shall not in any
manner impair or prejudice the sovereign rights
of the Republic of the Philippines under and
arising from the Constitution of the Philippines;
2. Such signing shall not in any manner affect the
sovereign rights of the Republic of the Philippines
as successor to the United States of America,
under and arising out of the Treaty of Paris
between Spain and the United States of America of
December 10, 1988, and the Treaty of Washington
between the United States of America and Great
Britain of January 2,1930;
3. Such signing shall not diminish or in any manner
affect the rights and obligations of the
Contracting Parties under the Mutual Defense
Treaty between the Philippines and the United
States of America of August 30, 1951, and its
related interpretative instruments; nor those under
any pertinent bilateral or multilateral treaty or
agreement to which the Philippines is a party;
4. The provisions of the Convention on archipelagic
passage through sea lanes do not nullify or
impair the sovereignty of the Philippines as an
archipelagic State over the sea lanes and do not
deprive it of authority to enact legislation to
protect its sovereignty, independence, and
security;
5. The concept of archipelagic waters is similar to
the concept of internal waters under the
Constitution of the Philippines, and removes straits
connecting these waters with the economic zone or
high sea from the rights of foreign vessels to transit
passage for international navigation
The USSR filed a formal protest against the reservations.
However, the reservation was not necessary because the
new rule applies only to ‘areas which had not previously
been considered as internal waters.’ The 1973 Constitution
pre-dates the 1982 Convention.
Illustration: Reservation in Human Rights Treaties
Because of the special characteristics of the Covenant as
a human rights treaty (not a web of inter-State exchanges
of mutual obligations, but concern the endowment of
individual with rights), it is open to question what effect
objections have between States inter se.
However, an objection to a reservation made by States may
provide some guidance to the Committee in its
interpretation as to its compatibility with the object and
purpose of the Covenant.
5. 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. Multilateral treaties
generally contain a provision which says how many states
have to accept the treaty before it can come into force.
Article 24. Entry Into Force
1. A treaty enters into force in such manner and upon such
date as it may provide or as the negotiating States may
agree.
2. Failing any such provision or agreement, a treaty enters
into force as soon as consent to be bound by the treaty
has been established for all the negotiating States.
3. When the consent of a State to be bound by a treaty is
established on a date after the treaty has come into
force, the treaty enters into force for that State on that
date, unless the treaty otherwise provides.
4. The provisions of a treaty regulating the authentication
of its text, the establishment of the consent of States to
be bound by the treaty, the manner or date of its entry
into force, reservations, the functions of the depositary
and other matters arising necessarily before the entry
into force of the treaty apply from the time of the
adoption of its text.
Article 25. Provisional Application
1. A treaty or a part of a treaty is applied provisionally
pending its entry into force if:
(a) the treaty itself so provides; or
(b) the negotiating States have in some other manner so
agreed.
2. Unless the treaty otherwise provides or the negotiating
States have otherwise agreed, the provisional
application of a treaty or a part of a treaty with respect
to a State shall be terminated if that State notifies the
other States between which the treaty is being applied
provisionally of its intention not to become a party to the
treaty.
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Application of Treaties
First fundamental rule: PACTA SUNT SERVANDA
Article 26. Pacta Sunt Servanda
Every treaty in force is binding upon the parties to it and
must be performed by them in good faith.
Second fundamental rule: CANNOT INVOKE INTERNAL
LAW AS JUSTIFICATION FOR VIOLATION OF TREATY
Article 46. Provisions of Internal Law Regarding
Competence to Conclude Treaties
1. A State may not invoke the fact that its consent to be
bound by a treaty has been expressed in violation of a
provision of its internal law regarding competence to
conclude treaties as invalidating its consent unless that
violation was manifest and concerned a rule of its
internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident
to any State conducting itself in the matter in
accordance with normal practice and in good faith.
Territorial scope: ENTIRE TERRITORY
Article 29. Territorial Scope of Treaties
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.
Interpretation of Treaties
Article 31. General Rule of Interpretation
1. 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.
2. The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its
preamble and annexes:
(a) any agreement relating to the treaty which was made
between all the parties in connection with the
conclusion of the treaty;
(b) any instrument which was made by one or more
parties in connection with the conclusion of the treaty
and accepted by the other parties as an instrument
related to the treaty.
 Article 31. General Rule of Interpretation (CONT)
3. There shall be taken into account, together with the
context:
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the
application of its provisions;
(b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties
regarding its interpretation;
(c) any relevant rules of international law applicable in
the relations between the parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended.
Various approaches to treaty interpretation provided above:
(a) Objective approach – according to the ordinary
meaning of words
(b) Teleological approach – according to the telos or
purpose of the treaty
(c) Subjective approach – honors special meaning
given by the parties
Article 32. Supplementary Means of Interpretation
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the treaty
and the circumstances of its conclusion, in order to confirm
the meaning resulting from the application of article 31, or
to determine the meaning when the interpretation
according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or
unreasonable.
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Article 33. Interpretation of Treaties Authenticated in
Two or More Languages
1. When a treaty has been authenticated in two or more
languages, the text is equally authoritative in each
language, unless the treaty provides or the parties
agree that, in case of divergence, a particular text shall
prevail.
2. A version of the treaty in a language other than one of
those in which the text was authenticated shall be
considered an authentic text only if the treaty so
provides or the parties so agree.
3. The terms of the treaty are presumed to have the same
meaning in each authentic text.
4. Except where a particular text prevails in accordance
with paragraph 1, when a comparison of the authentic
texts discloses a difference of meaning which the
application of articles 31 and 32 does not remove, the
meaning which best reconciles the texts, having regard
to the object and purpose of the treaty, shall be adopted.
Note: In case of conflict among official texts, the language
that is agreed by the parties as authoritative is followed.
Illustration: Air France v. Saks – Article 17, Warsaw
Conv.
Saks had become permanently deaf in her left ear during
her flight from LA to Paris. She filed a suit against Air
France, alleging that her hearing loss was caused by
negligent maintenance and operation of the jetliner’s
pressurization system.
It was held that Liability under Article 17 arises only if a
passenger’s injury is caused by an unexpected or unusual
event or happening that is external to the passenger, and
not where the injury results from the passenger’s own
internal reaction to the usual, normal, and expected
operation of the aircraft, in which case it has not been
caused by an accident under Article 17.
(a) It is the cause of the injury that must satisfy the
definition rather than the occurrence of the injury
alone – the intention of the continental jurists by
using the French word (legal meaning)
(b) Interpretation is consistent with the negotiating
history of the Warsaw Convention, conduct of
parties, and weight of precedent
(c) An injured passenger is only required to prove that
some link in the chain of causes was an unusual or
unexpected event external to the passenger.
Invalidity of Treaties
The usual ground for invalidation of contracts can also
invalidate a treaty: error of fact, fraud, corruption or duress.
Article 48. Error
1. A State may invoke an error in 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.
3. An error relating only to the wording of the text of a
treaty does not affect its validity; article 79 then applies.
Article 49. 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.
Article 50. Corruption of a Representative of a 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.
Article 51. Coercion of a Representative of State
The expression of a State’s consent to be bound by a
treaty which has been procured by the coercion of its
representative through acts or threats directed against him
shall be without any legal effect.
Article 52. Coercion of a State by the Threat
or Use of Force
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.
Article 53. Treaties Conflicting With a Peremptory
Norm of General International Law (“jus cogens”)
A treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law. For
the purposes of the present Convention, a peremptory
norm of general international law is a norm accepted and
recognized by the international community of States as a
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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.
Note: There is no derogation allowed because it is jus
cogens. It is the intrinsic nature of the rule that disallows
derogation.
While there is wide acceptance of the existence of jus
cogens, there is wide dispute as to what principles rank as
such. The International Law Commission decided not to
stipulate a list of jus cogens rules for fear of being
misunderstood and for fear of prolonged debate.
States Right to Assert Invalidity of Treaty
Article 45. Loss of Right to Invoke a Ground for
Invalidating, Terminating, Withdrawing From or
Suspending the Operation of a Treaty
A State may no longer invoke a ground for invalidating,
terminating, withdrawing from or suspending the operation
of a treaty under articles 46 to 50 or articles 60 and 62 if,
after becoming aware of the facts:
(a) it shall have expressly agreed that the treaty is valid
or remains in force or continues in operation, as the
case may be; or
(b) 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.
Article 46. Provisions of Internal Law Regarding
Competence to Conclude Treaties
1. A State may not invoke the fact that its consent to be
bound by a treaty has been expressed in violation of a
provision of its internal law regarding competence to
conclude treaties as invalidating its consent unless that
violation was manifest and concerned a rule of its
internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident
to any State conducting itself in the matter in
accordance with normal practice and in good faith.
Article 47. Specific Restrictions on Authority to
Express the Consent of a State
If the authority of a representative to express the consent
of a State to be bound by a particular treaty has been
made subject to a specific restriction, his omission to
observe that restriction may not be invoked as invalidating
the consent expressed by him unless the restriction was
notified to the other negotiating States prior to his
expressing such consent.
Amendment and Modification of Treaties
Amendment – 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
Article 41. Agreements to Modify Multilateral Treaties
Between Certain of the Parties Only
1. Two or more of the parties to a multilateral treaty may
conclude an agreement to modify the treaty as between
themselves alone if:

Article 39. General Rule Regarding the Amendment (a) the possibility of such a modification is provided for
of Treaties by the treaty; or

A treaty may be amended by agreement between the
parties. The rules laid down in Part II apply to such an
agreement except insofar as the treaty may otherwise
provide.
The process for such is simple with regard to bilateral
treaties. In the case of multilateral treaties, the ff. provisions
shall apply:
Article 40. Amendment of Multilateral Treaties
(b) the modification in question is not prohibited by the
treaty and:
(i) does not affect the enjoyment by the other
parties of their rights under the treaty or the
performance of their obligations;
(ii) does not relate to a provision, derogation
from which is incompatible with the effective
execution of the object and purpose of the
treaty as a whole.

1. Unless the treaty otherwise provides, the amendment of 2. Unless in a case falling under paragraph 1 (a) the treaty
multilateral treaties shall be governed by the following otherwise provides, the parties in question shall notify
paragraphs. the other parties of their intention to conclude the
agreement and of the modification to the treaty for
2. Any proposal to amend a multilateral treaty as between which it provides.
all the parties must be notified to all the contracting
States, each one of which shall have the right to take Termination of Treaties
part in:
A treaty may be terminated or suspended according to the
(a) the decision as to the action to be taken in regard to
terms of the treaty or with the consent of the parties. A
such proposal;
treaty with a definite period may also expire. It may also end
(b) the negotiation and conclusion of any agreement for
the amendment of the treaty. when the purpose for the treaty has already been achieved.
But a mere change of government or severance of
3. Every State entitled to become a party to the treaty shall diplomatic relations does not terminate or suspend a treaty.
also be entitled to become a party to the treaty as
amended. Modes: material breach; impossibility of performance;
change of fundamental conditions (rebus sic stantibus)
4. The amending agreement does not bind any State
already a party to the treaty which does not become a
party to the amending agreement; article 30, paragraph
4 (b), applies in relation to such State.

5. Any State which becomes a party to the treaty after the

entry into force of the amending agreement shall, failing
an expression of a different intention by that State:

(a) be considered as a party to the treaty as amended;

and
(b) be considered as a party to the unamended treaty in
relation to any party to the treaty not bound by the
amending agreement.

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 A. Material Breach
Article 60. Termination or Suspension
of the Operation of a Treaty
as a Consequence of its Breach
1. A material breach of a bilateral treaty by one of the
parties entitles the other to invoke the breach as a
ground for terminating the treaty or suspending its
operation in whole or in part.
2. A material breach of a multilateral treaty by one of the
parties entitles:
(a) the other parties by unanimous agreement to
suspend the operation of the treaty in whole or in part
or to terminate it either:
(i) in the relations between themselves and the
defaulting State; or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it
as a ground for suspending the operation of the
treaty in whole or in part in the relations between
itself and the defaulting State;
(c) any party other than the defaulting State to invoke
the breach as a ground for suspending the operation
of the treaty in whole or in part with respect to itself
if the treaty is of such a character that a material
breach of its provisions by one party radically
changes the position of every party with respect to
the further performance of its obligations under the
treaty.
3. A material breach of a treaty, for the purposes of this
article, consists in:
(a) a repudiation of the treaty not sanctioned by the
present Convention; or
(b) the violation of a provision essential to the
accomplishment of the object or purpose of the
treaty.
4. The foregoing paragraphs are without prejudice to any
provision in the treaty applicable in the event of a
breach.
5. Paragraphs 1 to 3 do not apply to provisions relating to
the protection of the human person contained in treaties
of a humanitarian character, in particular to provisions
prohibiting any form of reprisals against persons
protected by such treaties.
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B. Impossibility of Performance
Article 61. Supervening Impossibility of Performance
1. A party may invoke the impossibility of performing a
treaty as a ground for terminating or withdrawing from it
if the impossibility results from the permanent
disappearance or destruction of an object indispensable
for the execution of the treaty. If the impossibility is
temporary, it may be invoked only as a ground for
suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by a
party as a ground for terminating, withdrawing from or
suspending the operation of a treaty if the impossibility
is the result of a breach by that party either of an
obligation under the treaty or of any other international
obligation owed to any other party to the treaty.
C. Change of Fundamental Conditions (Rebus sic
stantibus)
Article 62. Fundamental Change of Circumstances
1. A fundamental change of circumstances which has
occurred with regard to those existing at the time of the
conclusion of a treaty, and which was not foreseen by
the parties, may not be invoked as a ground for
terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an
essential basis of the consent of the parties to be
bound by the treaty; and
(b) the effect of the change is radically to transform the
extent of obligations still to be performed under the
treaty.
2. A fundamental change of circumstances may not be
invoked as a ground for terminating or withdrawing from
a treaty:
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach
by the party invoking it either of an obligation under
the treaty or of any other international obligation
owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke
a fundamental change of circumstances as a ground for
terminating or withdrawing from a treaty it may also
invoke the change as a ground for suspending the
operation of the treaty.
Note: The provision is a codification of the common law
principle of rebus sic stantibus (“things thus standing”).
Procedure for the Termination of Treaties
Article 65. Procedure to be Followed With Respect to
Invalidity, Termination, Withdrawal From or
Suspension of the Operation of a Treaty
1. A party which, under the provisions of the present
Convention, invokes either a defect in its consent to be
bound by a treaty or a ground for impeaching the validity
of a treaty, terminating it, withdrawing from it or
suspending its operation, must notify the other parties
of its claim. The notification shall indicate the measure
proposed to be taken with respect to the treaty and the
reasons therefor.
2. If, after the expiry of a period which, except in cases of
special urgency, shall not be less than three months
after the receipt of the notification, no party has raised
any objection, the party making the notification may
carry out in the manner provided in article 67 the
measure which it has proposed.
3. If, however, objection has been raised by any other
party, the parties shall seek a solution through the
means indicated in Article 33 of the Charter of the
United Nations.
4. Nothing in the foregoing paragraphs shall affect the
rights or obligations of the parties under any provisions
in force binding the parties with regard to the settlement
of disputes.
5. Without prejudice to article 45, the fact that a State has
not previously made the notification prescribed in
paragraph 1 shall not prevent it from making such
notification in answer to another party claiming
performance of the treaty or alleging its violation.
Article 66. Procedures for Judicial Settlement,
Arbitration and Conciliation
If, under paragraph 3 of article 65, no solution has been
reached within a period of 12 months following the date on
which the objection was raised, the following procedures
shall be followed:
(a) any one of the parties to a dispute concerning the
application or the interpretation of article 53 or 64
may, by a written application, submit it to the
International Court of Justice for a decision unless
the parties by common consent agree to submit the
dispute to arbitration;
(b) any one of the parties to a dispute concerning the
application or the interpretation of any of the other
articles in part V of the present Convention may set
in motion the procedure specified in the Annex to the
Convention by submitting a request to that effect to
the Secretary-General of the United Nations.
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Article 67. Instruments for Declaring Invalid,
Terminating, Withdrawing From or Suspending the
Operation of a Treaty
1. The notification provided for under article 65, paragraph
1, must be made in writing.
2. Any act of declaring invalid, terminating, withdrawing
from or suspending the operation of a treaty pursuant to
the provisions of the treaty or of paragraphs 2 or 3 of
article 65 shall be carried out through an instrument
communicated to the other parties. If the instrument is
not signed by the Head of State, Head of Government
or Minister for Foreign Affairs, the representative of the
State communicating it may be called upon to produce
full powers.
Article 68. Revocation of Notifications and
Instruments Provided for in Articles 65 and 67
A notification or instrument provided for in Article 65 or 67
may revoked at any time before it takes effect.
Authority to Terminate
While it does not say who may terminate a treaty, it is logical
that the authority to terminate should also belong to the one
who has the authority to enter into the treaty.
In the Philippines, the authority to conclude treaties is
shared between the Senate and President.
Succession to Treaties
Article 16. Position in Respect of the Treaties of the
Predecessor State
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.
Note: The “Clean Slate” rule does not apply to treaties
affecting boundary regimes.
Article 11. Boundary Regimes
A succession of States does not as such affect:
(a) a boundary established by a treaty; or
(b) obligations and rights established by a treaty and
relating to the regime of a boundary.
 Article 12. Other Territorial Regimes
1. A succession of States does not as such affect:
(a) obligations relating to the use of any territory, or to
restrictions upon its use, established by a treaty for
the benefit of any territory of a foreign State and
considered as attaching to the territories in question;
(b) rights established by a treaty for the benefit of any
territory and relating to the use, or to restrictions
upon the use, of any territory of a foreign State and
considered as attaching to the territories in question.
2. A succession of States does not as such affect:
(a) obligations relating to the use of any territory, or to
restrictions upon its use, established by a treaty for
the benefit of a group of States or of all States and
considered as attaching to that territory;
(b) rights established by a treaty for the benefit of a
group of States or of all States and relating to the use
of any territory, or to restrictions upon its use, and
considered as attaching to that territory.
3. The provisions of the present article do not apply to
treaty obligations of the predecessor State providing for
the establishment of foreign military bases on the
territory to which the succession of States relates.
INTERNATIONAL LAW AND MUNICIPAL LAW
Dualism v. Monism
A. Dualist / Pluralist Theory – International law and
municipal law are essentially different from each other;
differ as to source
“When there is a conflict between international law and
domestic law, which is to prevail?”
➔ Municipal law – dualists are positivists with a
strong emphasis on state sovereignty
Municipal Law International Law
Product of local custom Treaties and custom
or of legislation grown among states
Regulates relations Regulates relations
between individual between states
persons under the state
Law of the sovereign Law between sovereign
over individuals states
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B. Monism / Monistic Theory – International law and
domestic law belong only to one system of law
“When there is a conflict between international law and
domestic law, which is to prevail?”
➔ The first theory, municipal law is superior
➔ The second theory, international law is superior –
seen as flowing from a deep suspicion of local
sovereigns and from the conviction that it can
imbue the domestic order with a sense of moral
purpose
Municipal Law in International Law
The prevailing practice accepts dualism, at least in its
postulate that there are two legal systems. This follows the
dualist tradition and blocks domestic law from entry into the
international area.
• A state which has violated a provision of
international law cannot justify itself by recourse to
its domestic law.
• A state which has entered into an international
agreement must modify its law to make it conform
to the agreement. – a principle which is self-evident
according to which a state which has contracted to
a valid international obligation is bound to make in
its legislation such modifications as may be
necessary to ensure the fulfillment of the
obligations undertaken (Exchange of Greek and
Turkish Population Case)
Article 27, VCLT. Internal Law and
Observance of Treaties.
A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty. This rule is
without prejudice to article 46.
Article 13. Declaration of Rights and Duties of States,
International Law Commission, 1949.
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 in its
constitution or its laws as an excuse for failure to perform
this duty.
Note: In dualism, domestic and international law are not
completely separate. Art. 38, SICJ recognizes the common
teachings of domestic law as part of international law.
Reason: The Court would lose touch with reality. It is to
rules generally accepted by municipal systems and not to
the municipal law of a particular State.
International Law in Domestic Law Municipal Rule

International law, unless made part of the domestic system,
has no role in the settlement of domestic conflicts. It
becomes part of domestic law by:
(a) Transformation – based on strict dualist approach
wherein it must be expressly and specifically
transformed into domestic law via appropriate
constitutional machinery such as an act of
Congress
(b) Incorporation – by saying the Philippines ‘adopts
the generally accepted principles of international
law as part of the law of the land,’ the Constitution
manifests its adherence to the dualist theory and
adopts said theory
General rule: Domestic courts bound to apply the local law.
• If conflict between international agreement and
Constitution – TREATY WOULD NOT BE VALID
AND OPERATIVE AS DOMESTIC LAW
The SC has the power to declare a treaty
unconstitutional pursuant to Sec. 5 (2a), Art. VIII.
• If conflict between international agreement and
legislation – THE LATER ONE PREVAILS
Treaties and statutes are equal in rank and neither
is superior to the other, so the rule is as follows only
in the domestic sphere.

• Applies only to customary law and treaties

which have become part of customary law

Cases mentioned:

Kuroda v. Jalandoni: The Court considered jurisdiction

over war crimes as part of customary law.

Agustin v. Edu: Since the Philippines ratified the Vienna

Convention on Road Signs and Signals, a presidential
Letter of Instruction prescribing the use of early warning
devices was valid. It is not for this country to repudiate a
commitment to which it had pledged its word.

Reyes v. Bagatsing: The international duty of protecting

foreign embassies is recognized.

Conflict between International Law and Domestic Law

“When international law, whether customary or

conventional, comes into conflict with domestic law,
whether constitutional or statutory, which law should
prevail?”

➔ It depends on whether the case goes to a

domestic court or to an international tribunal.

International Rule

General rule: Before an international tribunal, a state may

not plead its own law as an excuse for failure to comply with
international law.

Exception: See Art. 46, VCLT – where violation was

manifest and concerned a rule of its internal law of
fundamental importance

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