PUBLIC INTERNATIONAL

I. PRELIMINARY CONSIDERATIONS

A. Brief history of Public International Law

Father of International Law - Hugo Grotius

Created the Law of War and Peace which is considered as the first definitive text on international
law

Natural law prescribes rules of conduct for nations as well as private individuals

B. Definition of International Law

- body of rules & principles which are recognized as legally binding and governs the relations of
states and other entities with one another (as between international organizations, between
international organizations and states, between international organizations and states and the
people).

C. Functions of International Law

1. defines the existence of states

2. provides framework of diplomatic relations

3. governs international agreements

4. sets forth rules for international commerce

5. governs individual human rights

6. regulates protection of the global environment (air, land, sea and global resources)

7. VITAL FUNCTION: eliminates elements of unlawful force in the solution of human conflicts and
provides basis for the orderly management of international relations; social progress

D. Foundations of International Law

1. Principle of comity

2. Principle of reciprocity/mutuality

3. Principle of independence

4. Principle of equality of states

COMITY
Refers to rules on politeness, convenience and goodwill observed by the states in the mutual intercourse
without being legally bound by them

RECIPROCITY

States that favours, benefits, or penalties that are granted by one state to the citizens or legal entities of
another, should be returned in kind.

INDEPENDENCE

Right of a state to exist and to exercise sovereignty

EQUALITY OF STATES

This right is inherent in the concept of a state as a subject of International

Law and is given general recognition by long-standing state practice. In its legal effects the principle of st
ate equality has several important consequences. Probably the most important manifestation of the
doctrine is the right of every state to have one vote in matters requiring the consent of states.

Asa natural consequence of this is that the voteof every state, no matter how large or small the state, co
unts the same as the individual votes of all other states. Legal equality also meansthat no state can claim
jurisdiction over other states, and as corollary, a state is independent of the political will of all other state
s. From this also flows the concept of Sovereign
Immunity, which prevents one state from being sued in the courts of another state without the consent
of the first state.

From this also flows the concept of Sovereign

Immunity, which prevents one state from being sued in the courts of another state without the consent
of the first state.

Theories as to the Basis of International Law

1. Direct Consent

- international law is based upon the direct consent of States upon their individual acceptance of its
principles and rules.

2. Implied Consent

- a fiction to account for the acceptance of the great body of general principles and specific rules
that had come to form the body of customary law.

3. Mutuality of Interest

- international law is a subjective law; its binding force depends upon mutuality of interest which
could only be maintained by altering from time to time such rules as it might be no longer to the interest
of the parties to observe.
4. Necessity

- the fact that nations have common interest constitutes the actual community of states and at the
same time imperatively demands a rule of law so that international law may be said to be based upon
the very necessity for its existence.

Two Main Branches of International Law

1. Public International Law (Law of Nations)

2. Private International Law (Conflicts of Law)

Branches of International Law

1. Human rights law

2. Humanitarian law

3. Refugee law

4. Criminal law

5. Economic law

6. Environmental law

 General Classifications of Public International Law

 1. Consular law

 2. Diplomatic law

 3. International Aviation law

 4. International criminal law

 5. International environmental law

 6. International human right law

 7. International humanitarian law

 8. International space law

 9. International trade law

 10. law of state responsibility

 11. Rules according to higher law

  12. UN Conventions on the law of the Sea

 13. Use of force continuum

 Public International Law vs Private International Law

Public International Law (Law of Nations)

- regulates the relationship between states and international entities

- concerned with questions of rights between nations.

Private International Law (Conflicts of Law)

- regulates comity of states in giving effect in one to the municipal laws of another relating to
private persons.

- PRINCIPLE: One country gives respect and give effect to the laws of another so far as can be
done consistently with its own interest.

Is International Law a True Law?

based on popular views it is not a true law because:

law of nation lacks the equality of positive authority or command.

● no legal duty/obligation of obedience on the part of those whom it is addressed with no

courts to interpret and enforce international law.

● no penalty prescribed for disobedience with lack of physical power to enforce obedience.

- International law is recognized as law of practice

● sanctions for failure to comply though indirect is similar to municipa law.

● includes force of public opinion, self help, intervention by third party

states, sanctions of international organizations such as the UN and as a

last resort – WAR.

Classification of International Law

1. Customary
 2. Conventional

3. General International Law

Public International Law vs Municipal Law

MUNICIPAL LAW

- deals with states’ relations

- deals with internal affairs of a state

- sources are customs and treaties

- sources are customs and precedents grown within the state’s jurisdiction and legislation
enacted by its law making body.

- law is not a law above but between sovereign states

- law of sovereign over individuals subject to state authority.

- laws not codified except on particular subjects

- laws are codified

- penalty/sanction is addressed by pressure put upon a state to behave in good faith, diplomacy,
retaliations or severance of economic ties, war as an act of self defense (as recognized by the
UN).

Only strong countries may impose these sanctions to weak countries in reality.

- penalty may be in the form of imprisonment (in violation of the penal code) or sanctions of
damages and administrative sanctions.

** In International Tribunal the international law will prevail over Municipal law.

** In a municipal tribunal, one must distinguish if conflicts involve international law and foreign
international law in which case international law prevails;

** Municipal law prevails if conflicts involve conflicts between municipal law and international
law.

Conflicts between Public International Law and Municipal Law

- Municipal law, when in conflict with PIL is given effect in municipal courts, the reason being that
such courts are organs of municipal law and are accordingly bound by it in all circumstances.

- the fact that international law has been made part of the law of the land does not mean to imply it
is primary over national or municipal law.
 - in Doctrine of Incorporation, PIL is given standing equal but not superior to national legislative
enactments.

PRINCIPLES AND DOCTRINES:

DOCTRINE OF TRANSFORMATION

- requires legislative action to make the treaty enforceable in the municipal sphere.

- Municipality law expressly adopts an international law thru an act of legislation.

- The doctrine observed in treaties

DOCTRINE OF INCORPORATION

- Considers rules of international law as forming part of the law of the land and no further
legislative action is needed to make such rules applicable in the domestic sphere.

- the doctrine observed in customary international law.

ADOPTION DOCTRINE

- Municipality law impliedly adopts an international law.

HARMONIZATION DOCTRINE

-International law is applied only when appropriate.

RESTRICTED AUTOMATIC DOCTRINE

- Based on Article 2, section 2 of Constitutional provision in the Philippines, “Philippines adopts the
generally accepted principles of international law as part of the law of the land.” It stresses the
automatic adoption of international law but involves restriction that such automatic adoption of
international law is only as to generally accepted principles of international law.

Conflict between a Treaty and a Constitution

- in states where Constitution is the highest law of the land, both statutes and treaties may be
invalidated if they are in conflict with the Constitution.

- In the Philippines, the Supreme Court may declare a treaty unconstitutional if it is in conflict
with the Constitution.

Structure of Public International law

1. Law of Treaties and other international agreements

2. Law on Armed Conflicts

3. Rubrics of international delinquencies or torts

4. International responsibilities of States

SOURCES OF PUBLIC INTERNATIONAL LAW

Direct Sources

i. International Conventions and Treaties

- most abundant sources of PIL

- between parties of treaties, the stipulations constitute the law between them.

- ex: Vienna Convention on the Law of Treaty

-there is a distinction between law making treaties and treaty contracts

-law making treaties are generally those accepted by a number of states eg: 1961 Vienna
Convention on Diplomatic Relations

-treaty contracts create special rights by operation of the principle of pacta sunt servanda which
are akin to private law contractual rights

-treaties codify, define, interpret or abolish existing customary international law or create new rules
for future conduct

-through the negotiating process treaties push states towards custom and opinio juris

-treaties may become obsolete or partially obselete if customs or opinio juris change

-treaties only bind states that are signatories but states can bind themselves by declaring themselves
so bound

-once a rule of custom is identified it can be used against all states that do not protest to the practice

Entry into Force of a Treaty

Bilateral Treaties-most provide that once signed and documents exchanged, this is enough to bring
the treaty into effect

Multilateral-provide that the treaty will be adopted by a vote OR rules of procedure may say that
they must be adopted by way of consensus-depends on the rules of negotiation decided by

-usually provide that signature alone is insufficient, treaty will only come into force when eg: X # of
states have ratified or acceded to the convention
What status does the signature have? –symbolic—state intends at some time down the road to
implement the treaty, it is in favour of the treaty and some time later will bind itself

-some have argued that once the treaty is signed, a state cannot do anything to thwart the process

Treaties can come into force on:

Ratification or upon a given period after ratification

immediately or after signature

exchange of notes—the date of the second note

ratification by a given number of states set out in the treaty (usually for multilateral treaties)

-it is the intention to be bound that is crucial to determining the time of entry into force

-treaties can be retroactive or else they can be provisional

Reservations to Treaty Obligations

Article 19: Vienna Convention: Reservations—state may formulate a reservation unless:

reservation is prohibited by the treaty

treaty provides that reservations may be made only to particular sections

reservation is incompatible with the object and purpose of the treaty

Article 20: Where a treaty provides for reservations on certain sections, states do not have to accede
to the reservation.

-where the treaty constitutes an international organization, approval of the organization is necessary
for reservations

4.a) acceptance by another state of the reservation means the treaty binds those states

b) objection to reservation does not preclude entry into force between the parties as long as
another contracting state accedes to the reservation, the reservation is effective

Article 21: Legal Effects of Reservations:

 a) Reservation modifies the relationship to the extent of the reservation

 B) Modifies the provisions to the same extent for another party in relations with the
reserving party

 Reservation does not modify the relationship of other parties to the treaty
  A state objecting to a reservation does not have to respect the provision to which the
reservation applies with regard to the reserving state.

Reservations to Treaty Obligations

-in what way do the reservations modify the treaty obligations?

-a unilateral statement made by a state when approving a treaty and assenting to it in substance
hereby it modifies the effect of the treaty on its state

often has the effect of causing confusion because other states may not accept the reservations—in
League of Nations vote, reservations had to be approved by the other acceding states

–only feasible in multilateral treaty obligation

Do reservations have to be approved by all states party?

-not necessarily but, if the reservations have the effect of nullifying the purpose of the treaty, they
will not be allowable

-certain treaties provide for no reservations whatsoever

Law of the Sea Convention in 1982 allowed for reservations but pin-pointed the specific provisions
on which reservations were allowable

Operation of Treaties: Amendment and Modification

-a treaty can be amended by the mutual agreement of both parties and this can be done by formally
abrogating an old treaty or by inserting a clause in the new treaty abrogating the old treaty

-an amending agreement can only bind parties to the original agreement that accept the amended
agreement

Vienna Convention Articles 42, 43, 46, 52, 53, 64, 69, 71

Article 42-Validity and Continuance of Force of Treaties: 1. validity of the treaty can only be
impeached, terminated, denounced or withdrawn form, by resort to this convention

Article 43-Obligations Imposed by International Law: Invalidation, denunciation, suspension of

provisions does not impair an obligation under other rules of international law

Article 46—Provisions of Internal Law Regarding Competance to Conclude Treaties: a state cannot
breach a treaty by reason of technical requirements of internal law

Article 52-Coercion of a state by threat or use of force: A treaty procured by force or threats is null.
Article 53-Jus Cogens: A treaty is void if at the time of its conclusion it conflicts with a peremptory
norm of international law

jus cogens

an open set of peremptory norms of international law that cannot be set aside by treaty or
acquiescence

if there is a norm or rule labelled jus cogens and the treaty conflicts with this, the treaty is null to the
extent of the conflict

-these are general obligations owed to the international community as a whole

What are rules that fall into this category? Eg. (123) freedom of the high seas: cannot divide control
of the oceans in violation of this maxim, Article 2 of UN Charter: Prohibitions on the Use of Force,
pacta sunt servanda, many human rights laws

-torture is also a violation of international law jus cogens

Article 64-Emergence of a new peremptory norm: If a new jus cogens emerges, existing treaties in
conflict are void.

Article 69-Provisions of a treaty voided are of no force, if acts have been performed in reliance on it,
a) a party may require another party to establish the position it would have been in otherwise

b) acts performed in good faith prior to invocation of invalidity are not unlawful

erga omnes

when there are applicable rules that are jus cogens, all states are interested parties so any state can
protest or make a claim against another state that violates the norm

Termination of Treaties

Where there is a fundamental change of circumstances, international tribunals have upheld the
possibility that a treaty will no longer be binding

Article 62 of Vienna Convention—states that, the change must be fundamental the parties must not
have foreseen the change of circumstances

-in addition it must be a change that would radically transform the obligations to be performed in
the particular agreement

-existence of set of circumstances must have been an essential basis on which the treaty was
entered into
 Conclusion of a Treaty

representative of the state must have full powers to give consent of its state

the mode of adoption of the treaty must be agreed upon (ie: consensus or majority)

the means to authenticate the treaty in different languages must be agreed upon

steps to assent to the treaty must be set out

-generally, heads of state then take whatever steps are required in order to ratify

-at the end of negoiation there is usually a signing ceremony but this is a signature to adopt the
text and not to be bound

-the official signing takes place at a later date

-if a state has not acceded to the adoption of the text they may still accede to the treaty before it
is officially signed

Derogation

Derogation is the partial revocation of a law, as opposed to abrogation or the total abolition of a law.

Some treaties allow states to derogate, temporarily from some of their obligations

In time of public emergency threatening the life of the nation, when it is officially proclaimed, State
parties to present covenants make take measures to derogate their obligations to the extent strictly
required by the exigencies of the situation

REQUISITES FOR VALID DEROGATION

 Presence of war or public emergency

 Officially proclaimed

 Proportional

 Consistent

 Non-discriminatory

NON DEROGABLE RIGHTS

 Right to Life

 Right against slavery

 Right as a person before the law

 Right against torture, cruel, inhuman or degrading punishment

 Right to freedom of thought, conscience or religion

 Right to habeas corpus

DENUNCIATION

 withdrawal from a treaty by a State party.

 Article 54
Termination of or withdrawal from a treaty under its provisions or by consent of the parties

 The termination of a treaty or the withdrawal of a party may take place:

 (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the
parties after consultation with the other contracting States.

Article 55
Reduction of the parties to a multilateral treaty below the number necessary for its entry into force

Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of
the fact that the number of the parties falls below the number necessary for its entry into force.

Article 56. Denunciation of or withdrawal from a treaty containing no provision regarding

termination, denunciation or withdrawal

1. A treaty which contains no provision regarding its termination and which does not provide for
denunciation or withdrawal is not subject to denunciation or withdrawal unless:

(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal;
or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty.

2. A party shall give not less than twelve months' notice of its intention to denounce or withdraw
from a treaty under paragraph 1.

ii. International Customs

- custom exists when there is a clear and continuous habits of doing certain things develop under the
conviction that it is obligatory and right.

- International Court of Justice held that customary rule mist be based on “constant and uniform
usage.”

Rules of Custom

are created by:

actual state practice-must be consistent, general and virtually uniformly adopted

Opinio juris—legal obligations where a state has acceded in a practice for a substantial period of
time without protest

General principles of law recognized by civilized nations

-ICJ does not follow stare decisis but they use judicial decisions for comparitive analysis to interpret
treaties, identify state customs and judicial opinions

-if the parties have agreed to a set of rules to go to an arbitrator, such an arbitrator can decide the
rules based upon principles of justice and fairness

-where there is a treaty, it governs

-where there is none, custom governs

-where there is one treaty state and one non treaty state, custom governs

General Customary Law

There must be a consistent and general international practice among states

The practice must be accepted as law by the international community

-subjective element of acceptance is called opinio juris

What evidence can be admissible to identify general practices?—

anything that demonstrates intentions

the unilateral acts of states are influential in generating customary rules of internatinal law
especially when duplicated by other states

state practice must be extensive and virtually uniform and there must be a general recognition
that a rule of law is involved (ie: an opinio juris)

Two Conditions:

1. not only must acts concerned amt to settled practice

2. they must also be such or be carried out in such a way as to be evidence of a belief that this

practice is rendered obligatory by existence of a rule of law requiring it ie opinio juris

- states concerned must feel that they are conforming to what amts to a legal obligation
- frequency or habitual character of acts itself is not in itself enough

- treaty is good evidence of state practice and opinio juris even though it is not binding on a
state who is not a party to treaty

- A party even though it may agree that have customary rule on point, may say that it’s not
binding on them if persistently object but if only object subsequent to a dispute arising, then
rule still binding

iii. General Principles of law

- recognized by civilized nations

- Ex: Res judicata, prescriptions, due process, law of nature, estoppel, ex aequo et bono (fair
and equity).

Secondary Sources
(Subsidiary means for determining rules of law)

iv. Teaching of most highly qualified publicists of the various nations

v. Judicial Decisions