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4. What is jus inter gentes? 11. What is the difference between formal and material sources of
Jus inter gentes consists of agreements between nations and includes the International Law?
body of treaties, UN conventions, international agreements, and Formal sources are those legal procedures and methods for the creation of
internationally recognized human rights. rules of general application which are legally binding on the addressees.
Material sources, on the other hand, provide evidence for the existence of
5. What is jus in bello? rules, which, when proved, have the status of legally binding rules of
Jus in bello is part of the “law of war” concerning the limits to acceptable general application.
wartime conduct.
12. What is a treaty?
6. What is jus ad bellum? Article 2(1)(a) of the 1969 Vienna Convention on the Law of Treaties
Jus ad bellum or the right to wage war is part of the “law of war” defining a provides that a treaty is an international agreement conducted between
set of criteria that must be consulted before engaging in war in order to states in written form and governed by international law, whether embodied
determine whether entering into war is justifiable. in a single instrument or in two or more related instruments and whatever
particular designation they may be given.
7. Who are the subjects and objects of international law?
YE, according to the Reparations Case, a subject of international law is an 13. What is jus cogens?
entity capable of possessing international rights and duties and having the According to Article 53 of the Vienna Convention on the Law of Treaties, a
capacity to maintain its rights by bringing international claims. Objects of peremptory norm of international law is a norm accepted and recognized by
international law, on the other hand, are those who indirectly have rights the international community of states as a whole as a norm from which no
under, or are beneficiaries of, international law through subjects of derogation is permitted and which can be modified only by a subsequent
international law. norm of general international law having the same character.
25. What is the value of the Resolutions adopted by the UN General 31. What is the International Law Commission?
Assembly? Established in 1948, the International Law Commission is a subsidiary
In general, resolutions are not binding on member states, but when they are organ of the General Assembly. Its mandate is the progressive development
concerned with general norms of international law, then acceptance by a and codification of International Law in accordance with the UN Charter.
majority vote constitutes evidence of the opinions of governments in the
widest forum for the expression of such opinions, thus evincing State 32. What is codification?
practice. In some cases, a resolution may have direct legal effect as an Codification involves the setting down, in a comprehensive and ordered
authoritative inbterpretation and application of the principles of the UN form, of rules of existing law and the approval of the resulting text by a
Charter. law-determining agency.
26. What is a general principle of law? II. THE RELATION OF MUNICIPAL AND INTERNATIONAL LAW
YE, general principles are principles of municipal law common to the legal
systems of the world. YE, International tribunals must have recourse to 33. What is the difference between monism and dualism (or pluralism)
rules typically found in domestic courts and domestic legal systems in order According to Most Highly Qualified Publicist Hersch Lauterpacht, Monism
to address procedural and other issues. takes the form of assertion of the supremacy of international law even
within the municipal sphere coupled with well-developed views of the
27. How can judicial decisions be a source of law? individual as a subject of international law. Dualism on the other hand
Judicial decisions are not, strictly speaking, a formal source, but are points to the essential difference of international and municipal law,
regarded as authoritative evidence of the state of law. consisting primarily in the fact that the two systems regulate different
subject matter.
28. Is the International Court of Justice bound by its past decisions?
No. Article 59 of the ICJ Statute provides that the decision of the Court has 34. What is the theory of co-ordination?
no binding force except as between the parties and in respect of a particular As propounded by Rosseau, the theory of coordination posits that municipal
case. Thus, the Court does not adhere to the principle of stare decisis and and international law have a common field of operation. There is no
the system of binding precedents. However, it must be noted that the Court automatic abrogation of internal rules in conflict with obligations in the
nevertheless strives to maintain judicial consistency. international plane.
29. Can the Court apply decisions of national courts? 35. Can a State invoke its domestic law against international law?
Yes. Article 38(1)(d) of the ICJ Statute is not confined to international No. According to Article 27 of the Vienna Convention on the Law of
decisions and decisions of national tribunals have evidential value. Some Treaties, it is well-settled that a State cannot plead provisions of its own law
decisions may provide indirect evidence of the practice of the state of the of deficiencies in that law in answer to a claim against it for an alleged
forum on the question involved; while others may result in the careful breach of its obligations under international law.
exposition of the law.
36. Can an individual acquire direct rights and/or obligations under
30. How can the teachings of the most highly qualified publicists be a International Law?
source of International Law? Yes. In certain instances, International Law imposes duties of certain kinds
As a subsidiary means of determining international law, teachings of most on individuals as such, and thus national and international tribunals may try
highly qualified publicists only constitute evidence of the law, although in persons charged with crimes against international law, including war crimes
some subjects, individual writers have had a formative influence. and genocide. Conversely, an individual, natural or juridical, may plead
that a treaty has legal consequences affecting such individual’s interests.
In exceptional circumstances, a people may be recognized by the and not purporting to be legal characterizations of acts of other States has
international community, and by interested parties, as having entitlement to little value.
statehood, and thus as being a State in statu nascendi. It is akin to a de
facto government and the legal consequences of its acts before full 54. What is the effect if a government is not recognized by other nations?
statehood are recognized by governments and foreign courts. According to the Tinoco Concessions Arbitration, non-recognition by other
States of a government claiming to be a national personality is usually
49. Does the illegal occupation of a State terminate the Statehood or evidence that it has not yet attained the independence and control entitling it
personality another? by international law to be classed as such. However, if the non-recognition
According to Ian Brownlie, a state remains ‘independent,’ in the sense of goes into its illegitimacy or irregularity or origin, their non recognition loses
retaining separate personality, if a foreign legal order impinges on it, evidential weight.
provided that the impingement occurs under a title of international law.
Illegal occupation cannot of itself terminate Statehood pursuant to the 55. What is the declaratory theory of recognition?
principle of ex injuria non oritur jus. The declaratory theory of recognition states that the political act of
recognition is a precondition of the existence of legal rights: in its most
50. What is continuity of states? extreme form this is to say that the very personality of a State depends on
According to the Tinoco Arbitration, State continuity involves the changes the political decision of other states.
in the head of State or the internal form of government. Such change does
not affect the legal rights and responsibility of States. 56. What is the constitutive theory of recognition?
The constitutive theory allows certain rights prior to recognition.
51. What is state succession?
State succession arises when one international personality takes the place of 57. Can recognition be retroactive?
another, for example, by union or lawful annexation. In general, it is The practice of British and American courts have applied the principle of
assumed that State succession is likely to involve changes in the legal status retroactivity in following or interpreting the views of the executive in
and rights of the entities concerned. matters of recognition, although Oppenheim opines that such practice is one
of convenience rather than principle. Generally however, recognition
52. Can micro-states have international personality? cannot be retroactive.
Yes, albeit limited at times. Membership of the United Nations or other
international organizations is not expressed to be conditioned by the size of VI. TERRITORIAL SOVEREIGNTY
the State concerned. However, it is necessary according to Article 4 of the
UN Charter that the State has the ability to carry out the obligations 58. What is sovereignty?
contained in the Charter a requirement of admission to membership. According to most highly qualified publicist Ian Brownlie, sovereignty is
the right of a State to exercise supreme political authority over a geographic
V. RECOGNITION OF STATES AND GOVERNMENTS region and its inhabitants.
53. What is the value of protest and recognition? 59. What is the extent of territorial sovereignty?
It depends. Acts of protest and recognition play a subsidiary but, in Territorial sovereignty extends principally over land territory, the territorial
practice, not insubstantial role in the resolution of disputes. They may, at sea appurtenant to the land, and the seabed, and subsoil of the territorial sea.
times, provide good evidence of the state of the law on the issues involved. It includes islands, islets, rocks, and reefs.
On the other hand, protest or recognition based solely on pure acts of policy
60. What is a terra nullius?
73. Is the characterization of a State’s conduct as ‘internationally exercise elements of governmental authority. This may include public
wrongful’ affected by that State’s internal law? corporations, semi-public entities, and even private companies in some
No. According to Article 3 of the Articles on State Responsibility, the instances.
characterization of an act of a State as internationally wrongful is governed
by international law. Such characterization is not affected by the 79. What about organs placed at the disposal of a State by another State?
characterization of the same act as lawful by the State’s internal law. According to Article 6 of the Articles on State Responsibility, the conduct
of an organ placed at the disposal of a State by another State shall be
74. What are the different modes of attribution? considered an act of the former State under international law if the organ is
YE, according to the Articles on State Responsibility, The acts which may acting in the exercise of elements of the governmental authority of the State
be attributed to the state may be acts of state organs, the acts of other at whose disposal it is placed.
persons empowered by the government to exercise governmental authority,
or is acting on the instructions of, or under the direction or control of, the 80. Can the acts of State organs or entities in excess of their authority or
state, or the acts of revolutionaries. contravention of instructions be attributable to the State?
Yes. It is clear from Article 7 of the Articles on State Responsibility that
75. What is a State organ? the conduct of an organ of a State or of a person or entity empowered to
According to Article 4 of the Articles n State Responsibility, a State organ exercise elements of the governmental authority shall be considered an act
includes entities exercising legislative executive, or judicial or any other of the State under international law if the organ, person or entity acts in that
functions, whatever position it holds in the organization of a State, and capacity, even if it exceeds its authority or contravenes instructions.
whatever its character as an organ of the central government or of a
territorial unit of the State. It also includes any person or entity which has 81. Is a conduct directed or controlled by the State attributable to the
that status in accordance with the internal law of the State. State?
Yes. The conduct of a person or group of persons shall be considered an act
76. Are all acts of a State organ attributable to the State? of a State under international law if the person or group of persons is in fact
No. However, Responsibility may only be excluded in cases where the act acting on the instructions of, or under the direction and control of, that State
had no connection with the official function and constituted a purely private in carrying out the conduct.
act. Ultra Vires acts of an organ are nevertheless considered as an act of the
State. 82. What conduct can be attributable to the State in the absence or default
of official authorities?
77. Can the conduct of non State organs exercising governmental functions According to Article 9 of the Articles on State Responsibility, the conduct
be attributable to the State? of a person or group of persons shall be considered an act of a State under
Yes. According to Article 5 of the Articles on State Responsibility, the international law if the person or group of persons is in fact exercising
conduct of any person or entity which is not an organ of a State but which is elements of the governmental authority in the absence or default of the
empowered by the law of that State to exercise elements of governmental official authorities in circumstances such as to call for the exercise of those
authority shall be considered an act of the State under international law, elements of authority.
provided the person or entity is acting in that capacity in the particular
instance. 83. To whom shall the conduct of an insurrectional movement be
attributed?
78. What is an entity? It depends. If the movement becomes the new government a State, then the
An entity, for purposes of State responsibility, is the wide variety of bodies conduct of the insurrectional movement shall be considered as an act of that
which, though not organs, may be empowered by the law of a State to State under international law. If the insurrectional movement succeeds in
establishing a new State in part of the territory of the pre-existing State, measure of self-defense taken in conformity with the Charter of the United
then its conduct shall be considered as an act of the new State under Nations.
international law.
90. What is a countermeasure?
84. Can a State subsequently ratify the acts of a private person or entity? According to the Gabcikovo-Nagymaros Project case, a countermeasure is a
Yes. In such a case, according to Article 11 of the Articles on State conduct of a State in response to a previous international wrongful act of
Responsibility, the conduct which is not attributable to a State shall another State and directed against that State.
nevertheless be considered an act of that State under international law if and
to the extent that the State acknowledges and adopts the conduct in 91. What are the elements of force majeure?
question. Force majeure may only be invoked if three elements are met: first, the act
in question must be brought about by an irresistible force or an unforeseen
85. When is there breach of an international obligation? event; second, such should be beyond the control of the State concerned;
According to Article 12 of the Articles of State Responsibility, there is a and third, such makes it materially impossible in the circumstances for the
breach of an international obligation by a State when an act of that State is State to perform the obligation.
not in conformity with what is required of it by that obligation regardless of
its origin or character. 92. When can distress be invoked?
There is distress when the agent of a State adopts a conduct inconsistent
86. What if the State is not bound by an international obligation at the time with the State’s international obligations because the agent had no other
the act contrary to such obligation was committed, can there be a reasonable way of saving lives. In distress, the interest concerned is the
breach? immediate one of saving people’s lives (such as an aircraft experiencing a
No. According to Article 13 of the Articles on State Responsibility, an act mechanical failure).
of a State does not constitute a breach of an international obligation if a
State is not bound by the obligation in question at the time the act occurs. 93. When is there a state of necessity?
There is necessity where the only way a State can safeguard an essential
87. What are the circumstances that preclude the wrongfulness of a State’s interest threatened by a grave and imminent peril is, for the time being, not
action? to perform some other international obligation of lesser weight or urgency.
YE, according to Chapter V of the Articles on State Responsibility, a
wrongful act of a State is precluded in cases of a valid consent, self-defense, 94. When can necessity be invoked?
countermeasures, force majeure, distress, and a state of necessity. According to Article 25 of the Articles on State Responsibility, necessity
may be invoked if the act is: first, the only means for the State to safeguard
88. How can consent preclude the wrongfulness of an act? an essential interest against a grave and imminent peril; and second, such
According to Article 20 of the Articles on State Responsibility, consent by a does not seriously impair an interest of the State or States towards which the
State to particular conduct by another State precludes the wrongfulness of obligation exists, or of the international community as a whole.
that act in relation to the consenting State, provided the consent is valid and
to the extent that the conduct remains within the limits of the consent given. 95. What are the instances wherein a State cannot invoke necessity?
According to Article 25 of the Articles on State Responsibility, a State
89. Can a State invoke self-defence? cannot invoke necessity if the international obligation in question excludes
Yes. According to Article 21 of the Articles on State Responsibility, the the possibility of necessity or if the State has contributed to the situation of
wrongfulness of an act of a State is precluded if the act constitutes a lawful necessity.
96. Can a State invoke any of the circumstances precluding wrongfulness No. According to Article 32 of the Articles on State Responsibility, a State
of an act for its violation of a peremptory norm? cannot rely on the provisions of its internal law as justification for failure to
No. According to Article 26 of the Articles on State Responsibility states comply with its obligations. This is an affirmation of Article 27 of the
that nothing in the Articles precludes the wrongfulness of any act of a State VCLT.
which is not in conformity with an obligation arising under a peremptory
norm of general international law. 103. Can there be an award of interest in international cases?
Yes. According to Article 38 of the Articles on State Responsibility,
97. What are the consequences of invoking a circumstance which preclude interest on any principal sum shall be payable when necessary in order to
the wrongfulness of an act? ensure full reparation. Interest runs from the date when the principal sum
YE, According to Article 27 of the Articles on State Responsibility, the should have been paid until the date the obligation to pay is fulfilled.
State should comply with its obligation, if and to the extent that the
circumstance precluding the wrongfulness no longer exists; and in some 104. Is the conduct of the injured State taken into account in awarding
instances, compensation for any material loss caused by the act in question. reparations?
Yes. According to Article 39 of the Articles on State Responsibility, in
98. What are the different forms of reparation? determining reparation, account shall be taken of the contribution to the
According to Article 34 of the Articles on State Responsibility, full injury by willful and negligent action or omission of the injured State or any
reparation for injury caused by an internationally wrongful act shall take the person or entity in relation to whom reparation is sought.
form of restitution, compensation and satisfaction, either singly or in
combination. 105. When can an injured State invoke the responsibility of another State?
According to Article 42 of the Articles on State Responsibility, a State is
99. What is restitution? entitled as an injured State to invoke the responsibility of another State if
According to the Factory at Chorzow case, restitution consists of the the obligation breached is owed to either: (a) that State individually; or (b) a
obligation of the responsible State to restore the undertaking and, if such is group of States including that State, or the international community as a
not possible, to pay its value at the time of the indemnification, which value whole, and the breach of the obligation: specifically affects that State; or is
is designed to take place of restitution which has become impossible. of such a character as radically to change the position of all other States to
which the obligation is owed with respect to the further performance of the
100. What is compensation? obligation.
According to Article 36 of the Articles on State Responsibility,
compensation for damage covers any financially assessable damage 106. When can a State lose the right to invoke responsibility?
including loss of profits insofar as established. The State responsible for an According to Article 45 of the Articles on State Responsibility, the
internationally wrongful act is under an obligation to compensate for the responsibility of a State may not be invoked if: first, the injured State has
damage caused, insofar as such damage is not made good by restitution. validly waived the claim; or second, the injured State may be considered to
have validly acquiesced.
101. What is satisfaction?
Satisfaction may consist in an acknowledgement of the breach, an 107. What happens if there are several States injured by the same
expression of regret, a formal apology, or another appropriate modality. It internationally wrongful act?
must not be out of proportion to the injury and may not take a form According to Article 46 of the Articles on State Responsibility, in such a
humiliating to the responsible State. case, each State may separately invoke the responsibility of the State which
has committed the internationally wrongful act.
102. Can the Responsible State rely on the provisions of its internal law?
IX. ADMISSIBILITY OF CLAIMS thenceforth legally required to follow a course of conduct consistent with
the declaration.
108. What are the requisites of admissibility?
According to Article 44 of the Articles on State Responsibility, the 113. What grounds can be invoked to terminate a treaty?
Responsibility of a State may only be invoked if: first, the claim is brought YE, according to Article 54 of the Vienna Convention on the Laws of
in accordance with any applicable rule relating to the nationality of claims; Treaties, A treaty may be terminated or a party may withdraw in conformity
and second, all available and effective local remedies have been exhausted. with the provisions of the treaty or at any time by consent of all the parties
after consultation with the other contracting states. Material breach,
X. DIPLOMATIC PROTECTION OF INDIVIDUALS AND GROUPS supervening impossibility of performance, and rebus sic stantibus will also
terminate the treaty.
109. What is jurisdiction?
YE, according to most highly qualified publicist, Ian Brownlie, Jurisdiction 114. In what instances can a non-party be bound by a treaty?
refers to particular aspects of the general legal competence of states often YE, a third party will be bound by a treaty if such treaty is a codification of
referred to as sovereignty such as judicial, legislative and executive. Under custom or jus cogens. Further YE, if the third State consents to be bound by
international law, the governing principle is that a state cannot take the treaty then such State shall be bound pursuant to the principle of pacta
measures on the territory of another state by way of enforcement of national tertiis nec noscent nec prosunt.
laws without the consent of the latter.
112. When can a State’s unilateral declaration become binding upon such
State?
YE, according to the International Court of Justice in the Nuclear Tests
Case, unilateral declarations concerning a legal or factual situation may
create legal obligations when it is the intention of the state making the
declaration to become bound according to its terms, that intention confers
on the declaration the character of a legal undertaking, the state being