SIL nations, as subsidiary means for the

determination of rules of law.

I. General 2. This provision shall not prejudice the
power of the Court to decide a case ex
1. Who invented the word international law? aequo et bono, if the parties agree thereto.”
Jeremy Bentham
3. Is there a hierarchy of sources under Article
2. What is international law? 38?
 It governs the relationship between and No. There is no express hierarchy of
among states and also their relations sources, but the drafters stipulated an order.
with international organizations and
individual persons. 4. Are all the sources listed under Article 38 of
 It is a system of laws, effective, the ICJ Statute binding upon a State?
governing interstate relations. No. Article 59 provides that decisions have
 It provides a normative framework for no binding force except between parties in a
the conduct of interstate relations. particular case.

3. Is international law necessary? 5. What is custom?

Yes. There are things which manifestly need It is a rule 1) evinced by the consistency and
to be done which can be done only by generality of state practice and 2) accepted
collective action. International law provides as law or opinion juris sive necessitas.
a set of techniques for addressing huge
collective action problems. 6. Elements of custom.
 State practice
4. Who is the father of IL?  Opinio juris
Hugo Grotius
7. Differentiate custom and usage.
II. Sources of IL Usage is a general practice which does not
reflect a legal obligation. Custom is a
practice which reflects a legal obligation.
1. Differentiate between formal and material
sources.
8. What are examples of material sources
Formal sources are methods for creation of
(state practice) of custom?
rules of general applications which are
legally binding. Material sources provide
 Diplomatic correspondence
evidence of the existence of rules which are  Policy statements
binding and of general application when  Press releases
established.  Opinions of government legal advisers
 Official manuals on legal questions
2. What are the sources of IL?  Executive decisions and practices
According to Article 38 of the ICJ Statute:  Orders to military forces
“1. The Court, whose function is to decide in  Comments by governments on ILC
accordance with international law such drafts
disputes as are submitted to it, shall apply:  Legislation
a) International conventions, whether  International and national judicial
general or particular, establishing rules decisions
expressly recognized by the contesting  Recitals in treaties and other
states; instruments
b) International custom, as evidence of a  Extensive pattern of treaties
general practice accepted as law;  Practice of international organs
c) the general principles of law recognized  UN general assembly resolutions
by civilized nations;
d) subject to the provisions of Article 59, 9. What are examples of sources from which
judicial decisions and the teachings of the opinio juris may be inferred?
most highly qualified publicists of the various
 General practice
 Scholarly consensus

Notes from the book of Prof. Ian Brownlie (Jj)

  Decisions of international courts and 19. May custom change the obligations in a
tribunals treaty?
Yes. Customary law may be called on to
10. Is complete uniformity required in state mold and even modify treaty texts which
practice? cannot realistically be amended. An
No. Only substantial uniformity is required. example is the requirement of necessity and
proportionality in Article 51 of the UN
11. Is duration required in state practice? Charter on self-defense.
No. The formation of customary rule
requires no particular duration. Examples 20. Examples of GAPIL?
are the rules relating to airspace and  Estoppel
continental shelf.  Acquiescence
 Litispendence
12. What is regional or local custom?  Res iudicata
It is a customary norm practiced only within  Circumstantial evidence
a particular region and is reducible to the
level of a bilateral relation. 21. Differentiate general principles of law and
general principles of international law.
13. What is a persistent objector? General principles of law are rules accepted
A State which exempts itself from the in the domestic law of civilized states.
application of a new customary rule by General principles of international law
persistent objection during the norm’s alternately refer to rules of custom, general
formation. principles of law, or certain logical
propositions underlying judicial reasoning
14. What is subsequent objection? based on existing international law.
A substantial group of states asserting a
new rule, of increased defection, 22. Does the principle of stare decisis or doctrine
complemented by acquiescence, may result of precedent apply before the ICJ?
in a new rule. No. There is no doctrine of precedent
observed, except on procedure. However, it
15. Are there customary norms that even strives to maintain judicial consistency.
persistent objectors have to comply with?
Yes. These are jus cogens or peremptory 23. What is the most important requirement to
norms of international law from which no be a publicist?
derogation is allowed. The work must be internationally published.
16. What is treaty? 24. Are equity infra legem and ex aequeo et bono
Treaties are the most important source of the same?
obligation in international law. Law-making No. Equity ex aequo et bono involves
treaties create legal obligations to govern elements of compromise and conciliation.
the conduct of parties. Bilateral treaties may Equity in a general sense finds application
provide evidence of customary rules. as part of normal judicial function and refers
to considerations of fairness and
17. May non-parties to a treaty be bound by a reasonableness in decision-making.
treaty?
Yes. This is when non-parties accept the III. IL and National Law
provisions by their conduct as representing
custom, or an unratified treaty is regarded
as evidence of custom. 1. Differentiate monism and dualism.
Dualism emphasizes the distinct and
18. What is the Baxter paradox? independent character of the international
Treaties declaratory or constitutive of and national legal orders, and that municipal
custom may arrest its development, and law governs relation between individual and
until the treaty is revised or amended the the state, while international law regulates
custom will remain the image of the treaty. relations between states. Monism postulates
that national and international law form one

Notes from the book of Prof. Ian Brownlie (Jj)

 single order or at least a number of foreign states. It is a discretionary principle,
interlocking orders which should be but if applied, it is a substantive bar to
presumed to be coherent and consistent, adjudication.
and either of which prevails in two theories.
8. What is act of state?
2. Can a State use its domestic law to It refers to the non-justiciability in a national
derogate from international law? court of the acts of a foreign state within its
No. A state cannot plead provisions of its own territory or outside. Every sovereign
own law in answer to a claim against it for state is bound to respect the independence
breach of international obligations. There is of every other sovereign state, and the
a duty to bring national law into conformity courts will not sit in judgment of another
with obligations under international law. government's acts done within its own
territory.
3. What is the status of national law in
international tribunals? 9. What are the exceptions to act of state
National laws are merely facts which doctrine?
express the will and constitute activities of  Where a court can look to a treaty or
States. Its distinct aspects are that it: is other unambiguous instrument regarding
evidence of conduct in violation, may be part controlling legal principles
of applicable law in a claim, is required to be  When the State Department guides the
proven before tribunals, is interpreted by courts as to the applicability of the act of
each state and not tribunals, is not to be state doctrine
declared unconstitutional or invalid by  Where the act of state complained of is
tribunals, and it is to be applied as such commercial rather than official
when applied in tribunals.  For the enforcement of arbitration
agreements
4. What is an umbrella clause?  Where there are claims concerning
It is a clause contained in an investment allleged expropriations in violation of
treaty which may also be breached when international law
there is a breach of a contract between an  Where there are civil suits against
investor and host state. individuals who, acting in an official
capacity for a foreign nation, have
5. Is there res judicata in international courts? committed torture or extrajudicial killing
There is no effect of res judicata from the
decision of a national court so far as an 10. What are the elements for the Alien Tort
international jurisdiction is concerned. Statute to apply?
Moreover, a decision of the International
 Plaintiff is an alien
Court, does not of itself create res judicata.
 Defendant is responsible for a tort
However, it does not follow that a national
court should not recognize the validity of the  Tort in question violates international
judgment of an international tribunal for law, including customary international
manifest competence and authority. law

6. Differentiate incorporation and 11. Differentiate acts jure gestionis and acts jure
transformation. imperiia.
Incorporation refers to the common law Acts jure gestionis are private or commercial
approach under which customary rules are acts of the government of a state. Acts jure
to be considered part of the law of the land. imperiia are public or governmental acts of a
Transformation refers to the approach under state
which custom will only become part of the
law of the land once codified in statute or in IV. Statehood
prior authoritative judicial decision.
1. What is a State?
7. What is judicial restraint?  Political entities equal in law, similar in
Courts do not adjudicate on matters of form, and the direct subjects of
international law arising in disputes between international law.

Notes from the book of Prof. Ian Brownlie (Jj)

  It is the basic unit under international period of travail before achieving the
law. objective of being a state.
 It is a type of legal person recognized by
international law. 9. What is self-determination?
 It is a stable political community It is a principle concerned with the right to
supporting a legal order to the exclusion be a state. It may be achieved through
of others in a given area. formation of a new state by: secession,
association in a federal state, or autonomy
2. What are the criteria for statehood? or assimilation in a unitary state.
According to Article 1 of the Montevideo
Convention: “The State as a person of 10. What is state succession?
international law should possess the It arises when one international personality
following qualifications: takes the place of another. If there is a
a) Permanent population continuity, the legal personality and
b) Defined territory particular rights and duties of the state
c) Government remain unaltered.
d) Capacity to enter into relations with
other States” 11. What is recognition?
It refers to the act of state on recognition of
3. What is population? another entity as a state, or recognition of
It connotes a stable community. another entity’s government as established,
lawful or legitimate. Its function is the
4. Is existence of fully defined frontiers determination of statehood and the condition
required in territory? for establishment of formal relations.
No. It is the effective establishment of a
political community that matters. 12. Differentiate declaratory and constitutive
theory of recognition.
5. Is effective government required? Declaratory theory refers to recognition
No. There are cases when it is unnecessary merely as a declaration or acknowledgment
or insufficient to support statehood. of an existing state of law and fact, legal
However, it is the best evidence of a stable personality having been conferred
political community. previously by operation of law. Constitutive
theory refers to recognition as the
6. What is independence? precondition of the existence of legal rights,
It is the capacity to enter into relations with or in its extreme, the personality of a state
other states, and the decisive criterion on depends on the political decision of other
statehood. states.

7. What is a dependent State? 13. What is collective recognition?

It is a State of which the foreign control of its It takes the form of joint declaration, or an
affairs may occur under international law. It invitation to become a party to a multilateral
indicates: subordination to another state, treaty of a political character. Statehood
concession of jurisdiction or administration matures through membership of the UN, or
to another state, conferral of agency and at least a call by the UN that the new state
representation in foreign affairs to another be recognized. However, under the UN
state, suffering interference from another Charter, statehood is a criterion for
state as a politically client-state, or membership, not a consequence.
appearing on the international place for
certain purposes only as a special type of 14. Is there a duty to recognize?
legal person. No. Recognition, as a public act of state, is
an optional and political act. State parties
8. What is a state in statu nascendi? are not bound to recognize other states, but
These are transitional states. It is a political bound under the International Law or
community with considerable viability of international obligations to respect the
becoming a state. They are undergoing a state's rights.

Notes from the book of Prof. Ian Brownlie (Jj)

15. What amounts to implied recognition? It is described by sovereignty and
 Conclusion of bilateral treaty jurisdiction.
 Formal initiation of diplomatic relations
 Issue of consular exequaturs 23. Distinguish imperium and dominium.
Imperium is the general power of
16. Differentiate de iure and de facto government, administration, and disposition.
recognition. Dominium is the form of public ownership of
De facto recognition of a government may property within the state.
involve a reluctant or cautious acceptance of
an effective government, lawfully 24. Differentiate sovereignty and sovereign
established in terms of international law and rights.
not imposed from without, or an Sovereignty is the legal personality
unwarranted acceptance of an unqualified accompanied by independence of a state.
agency. De facto recognition can be Sovereign right is the indefeasible right in
withdrawn, but de jure recognition is the patrimony of a state over resources.
irrevocable.
25. What is residual sovereignty?
17. What is the Estrada doctrine? The occupation of foreign territory in time of
It refers to the automatic recognition of de peace may occur on the basis of treaty with
facto governments. This is important when the territorial sovereign.
there is an unconstitutional change of
regime in a recognized State wherein other 26. What is the principle of appurtenance?
States must necessarily consider the The territory of a state by legal implication
dealings with the new regime. includes territorial sea, and airspace above
land territory and territorial sea.
18. What is collective non-recognition?
It is the duty not to recognize the illegal 27. What is title?
acquisition of territory, or breach of an The validity of claims to territorial
obligation arising from peremptory norm of sovereignty against other states.
international law, confirmed as customary
international law. 28. What is the thalweg principle?
The middle of the principal channel of
19. What is the Namibia exception? navigation is accepted as the boundary in
The duty of non-recognition is not absolute. case of a navigable river.
The invalidity of an act cannot extend to
those acts the effects of ignoring them is 29. What is nemo dat quod non habet?
detrimental to the inhabitants, such A state could not transfer more rights than
registration of births, death, and marriages. what it possesses.

20. What are the four types of territorial regime? 30. What is intertemporal law?
 Territorial sovereignty A situation should be appraised and rules of
 Territory not subject to the sovereignty international law should be interpreted as
of any state or states which possesses they existed at that time, not at the time that
a status of its own (e.g., trust territory) exists today.
 Res nullius
31. What is terra nullius?
 Res communis
It is land not under the sovereignty or
authority of any state.
21. What is a condominium?
It is an area of territory under the
32. What are the five modes of acquisition of
sovereignty of several states, or states with
territory?
other territory subject to their exclusive
sovereignty.  Occupation
 Accretion
22. What is the competence of states over  Cession
territory?  Conquest
 Prescription

Notes from the book of Prof. Ian Brownlie (Jj)

 41. What is accretion?
33. What is original and historic title? It is the process of increase of territory
It informs the principle of immemorial through new geological formations.
possession and reliance upon evidence of
general repute or opinion as to matters of 42. What is the effect of avulsion on
historical fact. boundaries?
Sudden, forcible, and significant changes in
34. What is effective occupation? river courses will not be considered to have
It is possession with the intention and will to changed the frontier line. The boundary will
act as sovereign, and some actual exercise be fixed along the route of the former river
or display of such authority. bed, following not the river but the land
underneath.
35. What is cession?
It is a right to territory conferred by treaty, 43. What is the sector principle?
provided the transferee takes in accordance It establishes the limits of territorial
with the treaty. No actual transfer is sovereignty by means of straight lines. In
required. the polar region, lines of longitude
converging in the pole is used to produce a
36. What is prescription? sector of sovereignty.
It is the removal of defects in a putative title
arising from usurpation of another’s 44. What is the basic constitutional doctrine of
sovereignty by the acquiescence of the IL?
former sovereign. Possession must be The sovereignty of states.
exercised a titre de souverain, must persist,
and be public, peaceful and uninterrupted. 45. What is sovereignty?
The collection of rights held by a state 1) in
37. Distinguish abandonment and its capacity as the entity entitled to exercise
relinquishment. control over its territory and 2) in its capacity
Abandonment is the surrender of title, to act on international plane, representing its
converting the territory to res nullius, before territory and its people.
another state establishes its own title by way
of lawful allocation or effective occupation. 46. What are the corollaries of sovereignty?
Relinquishment is the giving up of claim to  Jurisdiction, prima facie exclusive, over
territory in face of an acknowledged better territory and a permanent population
claim, or at least a subsisting one.  Duty of nonintervention in the area of
exclusive jurisdiction of other states
38. What is an epitaph?  Ultimate dependence upon consent of
It is the historical consolidation of title or the obligations arising from customary law
acquisition of title on the basis of use or treaties.
without challenge over a significant period of
time. 47. What is par in parem non habet imperium?
It refers to the equality of states, or equality
39. What is the principle of continguity? between sovereigns.
State activity is exercised on every part of
territory. This comes to the fore when the 48. What is pacta sunt servanda?
disputed territory is uninhabited, barren, or It refers to the notion that states must
unchartered. There is a presumption of comply with their obligations in good faith.
peripheral possession based on state
activity. 49. What is the doctrine of auto-limitation?
States limit sovereignty by way of treaty.
40. What is uti possidentis? Any state may, by its consent, express or
States emerging from the dissolution of a implied, submit to a restriction of its
larger entity inherit as their borders those sovereign rights.
administrative boundaries which were in
place at the time of independence. V. Jurisdiction

Notes from the book of Prof. Ian Brownlie (Jj)

 The flag state has regulatory responsibility
1. What is jurisdiction? for and jurisdiction over the ship. The state
It is the state’s competence under of registration of the aircraft is competent to
international law to regulate the conduct of exercise jurisdiction over offences and acts
natural and juridical persons. committed abroad.

2. Distinguish prescriptive and adjudicative 11. When is a port state jurisdiction exercised?
jurisdiction?  The act in question disturbs the peace
Prescriptive jurisdiction is the power to make and good order of the port
laws, decisions or rules. Adjudicative or  Assistance is required by the captain or
enforcement jurisdiction is the power to take a representative of the flag state of the
executive or judicial action in pursuance of ship
or consequent on the making of decisions or  A non-crew member is involved
rules.
12. What is O’Keefe’s definition of universal
3. What is the presumption in jurisdiction? jurisdiction?
The presumption is that jurisdiction is Universal jurisdiction can be defined as
territorial and may not be exercised extra- prescriptive jurisdiction over offenses
territorially without some specific basis in committed abroad by persons who, at the
international law. time of commission, are non-resident aliens,
where such offenses are not deemed to
4. Kinds of prescriptive jurisdiction? constitute threats to the fundamental
 Territorial principle interests of the prescribing state or in
 Nationality principle appropriate cases, to give rise to effects
 Passive personality principle within its territory.
 Protective/security principle
 Effects doctrine 13. What are the crimes covered under
universal jurisdiction?
5. What is the territorial principle?  Piracy
The courts of the place where the crime is  Slavery
committed may exercise jurisdiction.  Genocide
 Crimes against humanity
6. What is the nationality principle?  Breach of the Geneva Conventions of
Jurisdiction is exercised over nationals, 1949 and Torture
reliance on the residence, and other
connections as evidence of allegiance. 14. What is the obligation aut dedere aut
iudicare?
7. What is the passive personality principle? It is the obligation either to extradite or to
Aliens may be punished for acts abroad prosecute. This is applied when a fugitive
harmful to nationals of the forum. arrives on a territory of state and there
remains to enjoy the fruits of iniquity
8. What is the protective or security principle? offensive.
Jurisdiction is exercised over aliens for acts
done abroad which affect the internal or 15. What is the rule ne bis in idem?
external security or other key interests of the It precludes extradition of persons already
state. tried for the same offence.

9. What is the effects doctrine? 16. What is comity?

Jurisdiction wherein an extraterritorial It is the recognition which one nation allows
offence causes some harmful effect in the within its territory to the legislative, executive
prescribing state without actually meeting or judicial acts of another nation.
the criteria of territorial jurisdiction or
representing an interest sufficiently vital to VI. State Responsibility
the internal or external security of the state.

10. Who has jurisdiction over ships and aircraft?

Notes from the book of Prof. Ian Brownlie (Jj)

1. What does the law of responsibility compensation, if any, as its own
comprise? nationals (the plea of diligentia quam in
 Breach of an obligation of the state by a suis).
person or body whose conduct is in
circumstances 6. What is complicity?
 Conduct is attributable to the state It refers to aid or assistance furnished by
one State for the commission of a wrongful
2. What does the law of responsibility comprise act by another State.
of?
 ARSIWA 7. What are the circumstances precluding
 Articles on Diplomatic Protection wrongfulness?
 Draft Articles on Responsibility of  valid consent
International Organizations  self-defense
 countermeasures
3. What are the modes of attribution?  force majeure
 Acts of state organs  distress
 Acts of parastatal entities  state of necessity
 Act is approved or adopted by the state
8. What are the forms of reparation?
4. Are states responsible for ultra vires acts of  Restitution - back to status quo ante; to
officials? restore;
Ultra vires doctrine is not applicable to  Compensation - payment of damages
escape responsibility. (monetary);
 Satisfaction - intangible consequnces
5. What are McNair’s principles of such as apology or recognition (other
responsibility? modes deemed proper by the injured
 A State on whose territory an state)
insurrection occurs is not responsible for
loss or damage sustained by a foreigner 9. What is countermeasure?
unless it can be shown that the It is the possibility for a state to resort to
Government of that State was negligent private justice when its demands for
in the use of, or in the failure to use, the cessation of an illegal conduct or adequate
forces at its disposal for the prevention reparation are not met. However, it must be
or suppression of the insurrection; proportional.
 This is a variable test, dependent on the
circumstances of the insurrection;
 Such a State is not responsible for the
damage resulting from military
operations directed by its lawful
government unless the damage was
wanton or unnecessary, which appears
to be substantially the same as the
position of belligerent States in an
international war; 4 and 5 are generally
accepted
 Such a State is not responsible for loss
or damage caused by the insurgents to
a foreigner after that foreigner's State
has recognized the belligerency of the
Insurgents; and
 Such a State can usually defeat a claim
in respect of loss or damage sustained
by resident foreigners by showing that
they have received the same treatment
in the matter of protection or

Notes from the book of Prof. Ian Brownlie (Jj)