Professional Documents
Culture Documents
did so in 1950.
What evidence can you offer that PIL is an evolving
concept? In what cases may the ICJ exercise its jurisdiction?
1. Contentious cases – Claim by a state against
Definitions of PIL another state
2. Advisory opinions – Court will render an
Traditional – Brierly – the body of rules and principles opinion regarding a specific case presented to it.
of action which are binding upon civilized states in their ICJ of IL can make advisory opinions. SC in the
relations with one another PH cannot.
Subject v. Object (You need cases for the distinction) Natural law is a product of men living together in a
society capable of understanding that certain rules were
1. Subject – Has international legal personality. necessary for the preservation of society.
Thus, capable of possessing international rights
and duties, including the right to bring Individuals can be subject to international law only in
international claims. specific instances or only under certain circumstances,
2. Object – and these are: (1) When they exercise the right to self-
determination, and (2) When the Laws of Conflict or Laws
Death of Count Folke Bernadotte, a Swedish national. He of War are governing.
rescued some 30,000 prisoners from German
concentration camps in WWII through mediation. The Right to self-determination – you have an identifiable
UN appointed him as mediator (or the Chief UN Truce group of people, whose rights to freely pursue political,
Negotiator) in the Israeli-Arab conflict with Israel social, economic, and cultural rights have been denied.
fighting for independence. With his partition plan, it So here, you have a minority whose rights are not
angered many Israeli extremists, which eventually led to recognized by the government, their practices in
his death in Jerusalem in 1948. religion, traditions, beliefs and etc. are not recognized.
The issue now is WON UN had legal personality to bring If they are now recognized, you would expect them to
a claim with the view of obtaining reparations in respect secede from the state. Under PIL, they may now be given
to the damage caused to itself, to the victim or persons the right to separate. But what if the state does not
entitled through the victim, or WON it is just exclusive to allow? You would now expect an armed conflict
Sweden with regard to it s own national (International Armed Conflict –Rules of War – Between at
least two states; Non-International Armed Conflict – Rules
Because Bernadotte was in the service of the UN, the UN of Conflict – Between the State and an Armed Group
sought to improve security for its agents; one avenue is [internal disturbance])
the ability to hold someone or something responsible for
the injuries suffered by the organization (the UN). Now it International Criminal Crime – for international armed
is unclear whether or not UN was able, like how states conflict. International Criminal Crimes: Genocide, Crimes
can, to do so. Against Humanity, etc
If not international armed conflict, it is still murder, not
So here, the UN asked the ICJ for an advisory opinion. now in ICC, but in the domestic courts.
WON the UN could make an international claim against
states, in this case Israel, as responsible for the death of Not an international armed conflict if walay third state
its agent Count Folke Bernadotte. except in the case if it is against organized armed group
kay the can be called an National Liberation Movement.
The ICJ said the UN, is at present, the supreme type of If it is against NLM, it is still considered an International
international organization, and it could not carry out Armed Conflict kay according to the 4 Geneva
the intention of the founders if it as devoid of Conventions, these groups are still subject to the Rules of
international personality. While it is conceded that War. Like using the rule on (the rights of) Prisoners of
original international legal personality belongs to the War, and not the ordinary domestic crime.
main actors of international law, namely states, the
United Nations has an international legal personality Right-bearer na siya (groups, individuals), kay naa
through the fact that its member states, by the very naman ang mga rights sa Geneva Convention.
fact of creating such an organization, must have
transferred some of their powers over the Refugees. Those subject to persecution by his state due
organization. The claim brought by UN is not based upon to race, ethnicity, etc. If persecuted, they would want to
the nationality of the victim but rather upon his status as leave their country, which persecuted him/them. S now,
an agent of the Organization. if they wish to go another state and they are accepted by
another state, your status at this point is as asylum-
seeker kay interviewhon paman ka. If accepted na ka, it Neutralized State – Territorial integrity is subject to its
will now give rise to an international obligation of the promise not to engage in war. (e.g. Belgium, Luxembourg
receiving state, under the Refugee Convention, not to – they used to be under superpowers before. Now they are
return the refugee to his original state. Principle not under these superpowers because they have already
involved here Principle of Non-Refoulement. (French) promised not to engage in war)
*There are four exceptions in exercising the Use of Force. Use of Force Exceptions
To be discussed later. 1. UN Charter
* Laws of War would take over the Law of Peace in times 2. UN Security Council authorizing use of force in
of war. favor of another state
*A combatant who surrenders, should not be killed, and 3. UN Security Council authorizing use of force in
should be treated as a Prisoner of War (PoW). If Kim Jong favor of a regional organization e.g. North
Un would kill a PoW, he would be prosecuted in the ICC for Atlantic Treaty Organization
a war crime. 4. Self-defense, which is valid and recognized
*”Belligerent state” – a state-participant in a war. under the UN Charter
Neutral State v. Neutralized State *Gone are the days wherein IL is state-centered. There is
now even the internationalization of human rights. (I am
Neutral State – a state not participating in war, declared human and I have rights)
itself as neutral
SOURCES OF PIL *Treaties can be entered between a state and an
(Formal / Material) international organization.
Short passage of time will not necessarily bar it. *Master the US v. Nicaragua case. Relevant for
Time or passage of time does not bar “instant CIL” or
“accelerated CIL”
midterms.
2. What is the valur of a state’s (1) abstention or failure to protest Nicaragua v. USA, ICJ Report (1986)
against a norm and (2) protest against a norm?
Key Principles:
3. Are dissenting and non-participating States bound by custom? 1. General CIL must be determined by the general
practice of the states and not just by the states
4. What evidence is required for opinio juris?
party to the dispute before the ICJ. Opinio juris
may be deduced from the attitude of the
5. May treaties be invoked as evidence of customary law? May
they create customary law? Parties concerned and that of states to
certain General Assembly Resolutions.
6. Is there a normative hierarchy in customary law? 2. The prohibition on the use force is jus cogens.
3. Principle of “non-intervention” is CIL and,
7. Would declarations of law adopted by the UN G.A. constitute therefore, not affected by treaty stipulation.
presumptive evidence of accepted international law, 4. CIL can exist alongside treaties.
irrespective of actual state practice?
Key principles:
1. General Assembly Resolutions may show the
North Sea Continental Shelf case formation of opinion juris. Even if they are not
The Federal Republic of Germany and the legally binding, they may sometimes have
Netherlands entered into an agreement in 1964 drawing normative value.
a lateral line between Netherland and the FRG. FRG also 2. A State is barred to do an act only when it is so
entered into the same agreement with Denmark with prohibited under a treaty or customary
respect to the North Sea Continental Shelf. Unable to international law. Restriction to state’s
agree on other terms and condition, the parties brought sovereignty is not presumed. (see Lotus case)
to matter to the ICJ. Netherlands and Denmark asked the
ICJ to apply the principles in the 1958 Geneva
Convention on the Continental Shelf (“equidistance
Asylum Case (Columbia v. Peru, ICJ Report, 1950) by civilized nations”, and principles of equity have an
Key principle: The burden of proof lies with the established place in the legal system.
party alleging the existence of the custom. It must
demonstrate that the custom relied upon was Q: What general principle of law was applied by the PCIJ
established in such a manner so as to become binding on in deciding the case?
the other party. An alleged regional custom demands A: Doctrine of Clean Hands (a.k.a. Clean Hand Doctrine or
greater uniformity in practice than a general custom. a.k.a. in the PH: in pari delicto: those who come to courts
must come with clean hands)
*See 2016 case on Nuclear Disarmament
South-West Africa Case (2nd Phase, ICJ Report, 1966)
Key principle: Actio popularis (the action to
obtain remedy by a person or a group in the name of the
general public without being, or directly representing,
December 12, 2017 the victim) is not recognized as a general principle of
law. In international law, it refers to the action taken by
GENERAL PRINCIPLES OF LAW a State in the name of the international community even
if it is not directly the victim.
- We get this from the domestic practice of states
Purpose was to administer Namibia and teach
Recognized by civilized (peace-loving) nations; them how to self-govern so that they may be an
Aimed at providing solutions to controversies independent State. But what South Africa did
where a treaty or customary law provides no was to attempt to annex the Southwest Africa
guidance; and there was even the apartheid or the racial
“Law” can refer to both “international law” and discrimination. International committee saw
“municipal law elevated as international law” this as a breach, a material breach to the trust
(common municipal law) reposed upon South Africa.
Examples: estoppel, good faith, exhaustion of
local remedies, prescription, etc.
See: JUDICIAL DECISIONS AND PUBLICISTS
o Barcelona Traction Case (Belgium v.
Spain, 2nd Phase, ICJ Report, 1970) Subsidiary means only
o South-West Africa Case, (2nd Phase, ICJ Subject to Art, 59 of the Statute of the ICJ (the
Report, 1966) decision of the court has no binding force except
between the parties and in respect of that
particular case); in other words, there is no
doctrine of “stare decisis” in ICJ decisions;
Nottebohn Case (Liechtenstein v. Guatemala) ICJ decisions are independent of judicial
decisions of other newly created tribunals such
Nottebohn was a German, living in Guatemala as the ICC, etc. for lack of formal relationship
for 34 years. between these tribunals.
Guatemala (allied) became an enemy state of Law of the Case v. Stare Decisis (same court) v.
Germany (axis) Res Judicata (Decided case binds all courts)
Dagan to Liechstenstein kay naa iyang igsuon
didto, so nahimo siyag citizen sa Liechtensten
Pagbalik niyag Guatemala, gidakop siya for being
a German citizen. OTHER POSSIBLE SOURCES OF PIL
In this case, there was no relationship between
Liechtenstein (P) and Nottebohm (P). the Acts of international organizations (e.g. UN
change of nationality was merely a subterfuge and its Organs like General Assembly
mandated by the war. Under this circumstance, Resolutions)
Guatemala (D) was not forced to recognize it. Soft Law (guidelines of conduct which are
Dismissed. neither strictly binding norms of law nor
What is required for purposes of diplomatic completely irrelevant political maxims, e.g. UN
protection is not citizenship, but real and Declarations)
effective nationality. Soft Law Hard Law
o Guidelines of o Norms, the non-
Barcelona Traction Case conduct which are observance of
neither strictly which will result
binding norms of to State
General principle applied: Separate and distinct law nor responsibility
ang personality sa stockholders ug company. completely o Law as it
irrelevant political currently stands
maxims. o e.g. Treaty, CIL,
Netherland v. Belgium (PCIJ [1937] [The River Meuse o Law as it should be Jus cogens
Case]) in the future norms
Key principle: The Statue expressly direts the o e.g. UN
application of “general principles of law recognized declarations
o No responsibility, law), one source is not to be treated as
probably naa siyay always superior to the other. The sources of
iyang own
mechanism. international law are not therefore arranged in a
Probably it has its strict hierarchical order.
own compliance
mechanism. Guidelines in determining which source of PIL prevails
over the other:
Equity (Justice) Lex posterior derogate priori
See: Lex posterior generalis non derogate priori
o The River Meuse Case (Netherlands v. speciali
Belgium, PCIJ Reports, 1937) Lex specialis derogate legi generali
o “Ex aequo et bono” (equity over rules):
Art. 38(2), ICJ Statute
Jus Cogens v. Erga Omnes
Status of the norm v. duty of the state towards the
1. Ex Aequo et Bono - there is the requirement of
international community
agreement by the parties. This presupposes that the
parties have agreed to dispense with any applicable
international law but the parties have submitted Art. 53, Convention on the Law of Treaties
themselves to the ex aequo et bono jurisdiction of the ICJ (Vienna, 1969): A treaty is void if it conflicts
by permitting the ICJ to resolve the case on the basis of with a peremptory norm of general
equity instead of the applicable rules of international law international law, “a norm accepted and
recognized by the international community
of States as a whole as a norm from which no
derogation is permitted and which can be
2. Non Liquet - there is no requirement of agreement.
modified only by a subsequent norm of
This is when the court observes that there are neither
general international law having the same
conventional or customary rules of international law
character”
that can be applied to the case, general principles of
equity may be applied. This is part of the general Examples: prohibition on the use of force, of
jurisdiction of the ICJ at the time that the parties have genocide, slavery, gross violation of the right of
submitted all issues to the dispute to the court. This is people to self-determination, racial
some sort of “filling the gaps” between the sources of discrimination, and torture.
international law. Erga Omnes – obligations of a state to the
international community (as a whole, not just to
a particular state) [See: Barcelona Traction
DIFFERENCE: Case] (ex. Not to commit/fail to punish
In 1, there are rules applicable but parties agree not to international crimes; not to violate people’s right
be bound and let the court to apply equity. In 2, there are to self-determination)
no rules applicable. Erga Omnes Inter Partes – obligations of a state
towards a specific group of states.
PHILIPPINE PRACTICE
(On Sources of International Law) THE LAW OF TREATIES
Q: May the rules found in the Vienna Convention on the
Sec. 2, Art. II, 1987 CONST.: The PH renounces war as an Law of Treaties be applied in the following?
instrument of national policy, adopts the generally
principle of international law as part of the law of the land a. A dispute involving a “treaty” between State A
and adheres to the policy of peace, equality, justice, and IMF-World Bank
freedom, cooperation, and amity with all nations. b. A dispute involving a 1960 treaty between State
A and State B
Kuroda v. Jalandoni (83 Phil. 171) c. A dispute involving a 1995 treaty between State
In accordance with the GAPIL of the present day, A and State B which are not parties to the VCLT
including the Hague Convention, the Geneva Convention
and significant precedent of international jurisprudence
established by the UN, all those persons, military or *When you say Rules, determine first if CIL or
civilian, who have been guilty of planning, preparing or progressive.
waging a war of aggression and of the commission of *Which provisions are CIL and which provisions are
crimes and offense consequential and incidental thereto, Progressive.
in violation of the laws and customs of war, of humanity *If CIL, does not matter if parties are “parties” to the
and civilization, are held accountable therefor. VCLT kay CIL baya.
The rules and regulations of the Hague and Geneva MIDTERM (2nd week January; target is until item E)
Conventions form part of and wholly based on the
generally accepted principles of international law. (…)
*Geneva Convention was initiated and drafted by the
USA v. Guinto (182 SCRA 645) International Red Cross.
The rule that a state may not be sued without its
consent is now expressed in Art. XVI, Sec. 3, 1987
CONST, is one of the GAPIL that we have adopted as part
January 6, 2018
of the law of our land under Art. II, Sec. 2.
Two ways that a treaty may be confirmed (gikan sa
In the case of the foreign state sought to be someone not authorized):
impleaded in the local jurisdiction, the added inhibition
is expressed in the maxim PAR IN PAREM, NON HABET 1. Expressly
IMPERIUM. All states are sovereign equals and cannot 2. Impliedly – eg. By the conduct of the State.
assert jurisdiction over one another. A contrary Example of that conduct: When that state itself
disposition would, in the language of a celebrated case, cites that very treaty which was entered by
“unduly vex the peace of nations” someone, so here, estoppel applies.
“Act” meant in defeat the object and purpose = treaty Pacta Sunt Servanda (Art. 26)
could no longer be fulfilled, or impossibility Grounds for Termination, Denunciation,
Withdrawal, or Suspension:
Real test: WON it can still really be implemented. If a. Application of the Treaty (Art. 42)
municipal law, pwede man i-amend, it doesn’t b. Application of the VCLT (Art. 42)
automatically become a policy of the state. c. Consent of all the parties, e.g.
“Desuetude” (Art. 54)
Reservation – reserving state wants to exclude one d. Discharge through Material Breach*
provision (diri, di jud maapply) (Art. 60)
Understanding Declaration – state would consent to the e. Impossibility of Performance* (Art.
application of a provision of a tereaty, it will only be 61)
applied in a particular context. (Okay rami ani nga f. Fundamental Change of
article, but if ever iapply ni namo, application would Circumstance* (Art. 62)
mean this and that) g. Emergence of new Jus Cogens (Art. 64)
h. Outbreak of War (for bilateral treaties)
(called for recitations on this day)
Material Breach:
January 11, 2018 Meaning/Scope: Alleged breach must be
Material Breach by one state in a multilateral
Interpretation of Treaties treaty
Automatic termination/suspension?
Basic Rules: Not applicable in humanitarian law treaties
1. Text of the Treaty (in good faith + ordinary Consider provisions that remain binding after
meaning + context + object and purpose of the breach
treaty) Consider the effect severance of diplomatic or
2. Intent of the Parties consular relations
3. Object and Purpose of the Treaty A material breach is also an Internationally
Wrongful Act; so consider “circumstances that
Means of the Interpretation: (supplementary means of preclude wrongfulness of an act” (e.g.
interpretation) “countermeasures”)
a. Preparatory works (travaux preparatoires) Read: Namibia, Jurisdiction of ICAO and
b. Circumstances of conclusion (contemporaneity) Gabcikovo cases.
Article 31.1 of the VCLT: “A treaty shall be interpreted in Problem:
good faith in accordance with the ordinary meaning to States A and B entered into a Diplomatic
be given to the terms of the treaty in their context and in Relations Treaty that allows both states to establish
the light of its object and purpose” diplomatic missions in the territory of another. When
State A discovered that State B used its embassy for
surveillance and espionage in the territory of State A, the
latter arrested and detained State B’s Ambassador and
staff. When State B accused State A of violating their 4. Who shall represent the Philippines in the
Diplomatic Relations Treaty, State A invoked “material different stages of treaty formation
breach on the part of State B that caused the termination 5. When shall treaties enter into force in the
of the said treaty. Was the action of State A in accordance Philippines?
with international law? 6. May the president refuse to submit a treaty to
the Senate for its concurrence?
January 13, 2018
Midterms type of exam:
Material Breach is not applicable to issues that are 30-40% MCQ
humanitarian in character. The rest, Essay
Philippine Practice
1. State the relevant provisions in the 1987
Constitution that affect international law
2. What is the role of the DFA in the conclusion of a
treaty, international or executive agreement by
the Philippines?
3. Distinguish: International Agreement, Treaty,
and Executive Agreement. Who decides whether
it is IA, treaty, or EA?