PUBLIC INTERNATIONAL

LAW
ATTY. JONNIE L. DABUCO

International Law

Is that branch of public law which

regulates the relations of states and
other entities which have been
granted an international personality.

Divisions of International Law

1.

2.
3.

Law of Peace
Laws of War
Laws of neutrality

Sources of International Law

(Sec. 38 Statute of ICJ)
The primary sources are:
1. International Treaties and
Conventions
2. International Customs
3. General Principles of Law
The Subsidiary sources:
1. Decisions of courts
2. Teachings and Opinions of
International
Experts

Treaty

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 (
Art. 2(1)(a), 1969 Vienna Convention
on the Law of Treaties)

Treaties and Conventions

Is treaty superior to customary law?

Generally, NO, because they are equal in the
hierarchy of international law. Treaties and
customary law are usually taken as
complementary with each other. A treaty is
generally entered upon into for reasons of
establishing a customary law. But a later
treaty may be taken as superior in repealing
a prior customary law. HOWEVER, when
customary law has the status of jus cogens or
peremptory norms, they are considered
superior than any treaty and custom.

JUS COGENS
That body of peremptory principles or norms
from which no derogation is permitted; those
norms recognized by the international community
as a whole as being fundamental to the
maintenance of an international legal order.
Elementary rules that concern the safeguarding
of peace and notably those that prohibit recourse
to force or the threat of force. Norms of a
humanitarian nature are included, such as
prohibitions against Genocide, Slavery, and
RACIAL DISCRIMINATION.
Jus cogens may, therefore, operate to invalidate
a treaty or agreement between states to the
extent of the inconsistency with any such
principles or norms.

Custom

Elements: (Nicaragua v. USA)

1. General Practice
2. Opinio Juris
In the Continental Shelf case (Libya v.
Malta), the court stated that the
substance of customary international
law must be looked for primarily in the
actual practice and opinio juris of
States

Opinio Juris

In customary international law, opinio

juris is the second element (along with
state practice) necessary to establish
a legally binding custom. Opinio juris
denotes a subjective obligation, a
sense on behalf of a state that it is
bound to the law in question

Customary international law

Customary international law applies to every

country, regardless of whether they have
formally agreed to it. At the same time, all
countries take part in forming customary
international law by their practices and
decisions. As new rules arise, countries
accept, reject or modify them. When most
countries are following a rule, everyone else
will be held to it. Therefore, doing nothing is
the same as consenting. Nations that did not
take action may find themselves bound by an
international law that is not to their
advantage.

Consistency and Uniformity

In the Asylum case (Columbia v.

Peru), the ICJ suggested that a
customary rule must be based on a
constant and uniform usage.

General Principles of Law

Rules which, because of their intrinsic

merit, have been accepted and are
being observed by the majority of
civilized states.
Ex. Prescription, estoppel, res judicata
and pacta sunt servanda

Functions of International Law

To promote international peace and
security
To foster friendly relations among nations
and to discourage the use of force in the
solution of differences among them;
To provide for the orderly regulation of
the conduct of states in their mutual
dealings;
To ensure international cooperation in
the pursuit of certain common purposes
of an economic, social, cultural or
humanitarian character.

RELATION OF
INTERNATIONAL LAW AND
MUNICIPAL
LAW
International law is a law
of coordination, being the result of

agreement among equal states forming the family of nations;

municipal law is a law of subordination, being a command
issued by a political superior to those subject to its authority;
International law regulates the relations of states and other
international persons; municipal law regulates the relations of
individual among themselves or with their state;
International law is derived principally from treaties,
international customs, and general principles of law;
municipal law consists mainly of statutory enactments and to
a lesser extent executive orders and judicial
pronouncements;
International law is enforced, generally speaking, by the
subject themselves through methods of self-help; municipal
law is enforced by a regular and pre-existing machinery for
the administration of justice
International law usually entails collective responsibility;
municipal law entails individual responsibility;

International Community

The body of juridical entities which are

governed by international law. It is
often traditionally called the family of
nations. However, it is not really
composed only of nations, or of states,
as there are other entities besides
states which are now considered
subjects of international law.

Subject and Object of

International Law

A subject of international law is an entity

that has the rights and responsibilities
under that law. It has an international
personality in that it can directly assert
rights and be held directly responsible
under the law of nations.

An object of international law is the

person or thing in respect of which rights
are held and obligations assumed by the
subject. It is, therefore, not directly
governed by the rules of international

United Nations
It is an international organization
created at the San Francisco
Conference which was held in the
United States from April 25 to June 26
1945. Composed originally of only 51
members, the United nations has
grown rapidly to include most of the
states of the world.
Present members: 192

Fundamental principles of the

UN

The organization is based on the sovereign equality.

All members, in order to insure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in
accordance with the Charter.
All members shall settle their international disputes by peaceful means in such
manner that international peace and security, and justice, are not endangered.
All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in
any manner inconsistent with the purposes of the UN.
All members shall give the UN every assistance in any action it takes in
accordance with the Charter, and shall refrain from giving assistance to any state
against which the UN is taking preventive or enforcement action.
The Organization shall insure that states which are not members of the UN shall
act in accordance with these principles so far as may be necessary for the
maintenance of international peace and security.
Nothing contained in the present Charter shall authorize the UN to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall
require the members to submit such matters to settlement under the Charter; but
this principle shall not prejudice the application of enforcement measures under
Chapter VII.

Application to UN

Recommendation of a qualified
majority in the UN Security Council (
the affirmative vote of at least nine
members including the Big Five) and
approval of 2\3 of the General
Assembly

Principal organs of the UN

The General Assembly
The Security Council
The Economic and Social Council
The Trusteeship Council
The International Court of Justice
The Secretariat

Security Council

Composed of Fifteen members, five of

which are permanent. The other ten
members are elected for a two-year
terms by the General Assembly, five
from African and Asian state, one from
Eastern European States, two from
Latin American states and two from
Western European and other states.

Voting Rules in the UN Security

Council
Each member of the Security Council has one
vote, but distinction is made between the
permanent and the non-permanent members in
the decision of substantive questions.
According to the Yalta voting formula, decision on
procedural matters is to be made by the
affirmative vote of ANY nine members. Decision
on nonprocedural or substantive matters, on the
other hand, requires the concurrence of also nine
members of the body, including all permanent
members.
Unlike in the General Assembly, the
determination of the category of a question is
considered non-procedural matter in the Security
Council

Concept of the State

Essential elements of a state are:

1. People
2. Territory
3. Government
4. Sovereignty, or independence

Sovereignty and
Independence

They are often used interchangeably.

Strictly speaking, however,
independence is only the external
manifestation of sovereignty, which
also embraces power over internal
matters. Independence maybe defined
as the power of a state to administer
its external affairs without direction or
interference from another state.

States may be created in the

following ways:
Peaceful acquisition of independence
By revolution
Unification of several states
By secession
By agreement
By attainment of civilization

Fundamental Rights of a
State
Right of existence and self defense
Right of Independence
Right of Equality
Right of Property and jurisdiction
Right of Legation or diplomatic
intercourse

Basic Obligations of a State

Non-intervention
Non-use of force
Pacific settlement of disputes
Respect for human rights
Other duties

Principle of State Continuity

It means that the legal existence of a

state continues notwithstanding
changes in the size of its population or
territory or in the form or leadership of
its government as long as the four
essential elements of statehood are
retained.

Extinguishment of State

Natural causes

Artificial means
1. Anarchy
2. Mass emigration of the population
3. Annexation
4. Merger or unification
5. Dismemberment
6. Dissolution of a federal union
7. Partial loss of independence, as in the
case of the suzerainty and the
protectorate

State Succession

Universal succession takes place when a

state is completely annexed by another,
or is dismembered or dissolved, or is
created as a result of the merger of two
or more states.
Partial succession takes place when the
portion of the territory of a state is ceded
or secedes or when the state loses part
of its sovereignty by joining a
confederation or becoming a
protectorate or a suzerainty

Recognition

It is an act by which a state

acknowledges the existence of
another state, a government or a
belligerent community and indicates
its willingness to deal with the entity as
such under the rules of international
law

Recognition may be extended to:

A State

A Government

A Belligerent community

Nature of Recognition
The general view is that it is declaratory and
discretionary or political, that is, that it merely
affirms an existing fact, like the possession by
the state of all its essential elements, and that
it may be granted or withheld at pleasure.
The minority theory holds that recognition is
constitutive and compulsory or legal,
meaning that it is the act of recognition that
constitutes the recognized entity into an
international person and that such act may be
compelled once the elements of international
personality are established.

Distinction between Recognition of

a State and Recognition of
Government

Recognition of a state includes the

recognition of the government as the
later is an essential element of the
former; recognition of a government on
the other hand does not necessarily
signify the existence and recognition of a
state as such government may not be
independent.
Recognition of a state is generally
irrevocable while recognition of a
government may be withdrawn

Tobar or Wilson Doctrine

Doctrine which precludes the

recognition of a government
established by revoultion, civil war,
coup d etat, or other forms of internal
violence until the freely elected
representatives of the people have
organized a constituted government

Stimson Doctrine

This doctrine precludes the

recognition of any government
established as a result of external
aggression

Estrada Doctrine

The diplomatic representatives in a

country where political upheaval has
taken place will deal or will not deal
with whatever government is in control
therein at the time and either action
shal not be taken as a judgment on
the legitimacy of the said government.

3 Stages of Internal
Dissension
Simple lawlessness
Insurgency
Belligerency

When the lawlessness spreads and

develops a political motivation, it
becomes an insurgency, and an
aggravation of insurgency is a
belligerency.

Usual conditions for the

recognition of belligerency
There must be an organized civil
government directing the belligerency
The rebels must occupy a substantial
portion of the territory of the state.
The conflict between the legitimate
government and the rebels must be
serious making the outcome
uncertain.
The rebels must be willing and able to
observe the laws of war.

Right of Self-defense

Any measure taken in the exercise of

this right must be justified, in the
words of US Secretary of War Daniel
Webster by a necessity of selfdefense, instant, overwhelming and
leaving no choice of means and no
moment for deliberation.
Furthermore, they must be limited by
the necessity and kept within it.

Aggression

Is the use of armed forces by a state

against the sovereignty, territorial
integrity or political independence of
another state or in any other manner
inconsistent with the UN Charter.

Specific acts of aggression

Invasion or attack
Bombardment
Blockade of ports
Attack by the armed forces of a state on the land, sea or air
forces, or marine and air fleet of another state.
The use of armed forces of one state which are within the
territory of another state, in contravention of the condition
provided for in the agreement or any extension of their
presence in such territory beyond the termination of the
agreement.
The action of a state in allowing its territory, which it has
placed at the disposal of another state, to be used by that
other state for perpetrating an act of aggression against a
third state.
The sending or on behalf of a state of armed force against
another state of such gravity as to amount to the acts listed
above, or its substantial involvement therein.

Intervention

Is an act by which a state

interferestwith the domestic or foreign
affairs of another state through the
use of force or threat of force

Traditionally allowable coercive

measures
Severance of diplomatic relations
Retorsion
Reprisals
Embargo
Boycott
Non-intercourse