Public International law Theories

1. Direct Consent: international law is based upon the direct consent of states upon
Hugo Grotius: Father of PIL their individual acceptance of its principles and rules
(Should be state practice)
Main concern at that time: to establish an end to war to establish treaties and agreement 2. Implied Consent :to account to the acceptance the great bodies of customary law
between nations and promotions of peace and comity among nations.
3. Mutuality of Interest: Binding force depends upon the mutuality of interest which
Natural Law: The law among individuals also extends to countries or to states as well as to could only be maintained by altering from time to time such rules as it might be no
nations not only to private individuals longer to the interest
Subjective law ang international law, it would alter by amending the previous treaties
International law: rules and principles which are recognize and legally binding and governs in lieu of the betterment of all
the relations of states and other entities with one another ,as to international organizations 4. Necessity: the fact that nations have common interest, constitute the actual
between international organizations of the states and the people(do not confine yourself with community of states and at the same time demand a rule of law.
the relation between states alone, because International law may involve international Ex: need to unify and uniform about what the right to life is because if there is no
organizations as to relate to states , international organization to people. unification, there will be chaos
International Laws were not codified, it was considered as state practice by principle, and it
became part of international Law Public international Law Private international law
Governs the relationship Conflict of laws
Functions of International Law between the states and the The rights of the individual
Defines the existence of the state treaties in relation to a law, which
It provides for the framework of diplomatic relations State to state relationship when apply to the state may
Govern international agreements have to make reference to
Set forth the rules on trades and commerce Example: dispute between the law of another state
It governs individual human rights states Ex: persons Art. 16
Regulates protects the global environment An American buys a condo
in the Philippines, died
purpose: help eliminate unlawful force in the solution of human conflict certain laws treaties, Will the illegitimate child
doctrines that is acceptable in international law, we are able to prevent war. and the Filipina partner own
the condo?
State cannot be sued if it wont submit to the Jurisdiction of the Court=dapat nay consent =should refer to the
nationality of the foreigner
Principles/ Foundations: not merely on the Philippine
1. Comity: founded on the fact that there should be rules on politeness, convenience and Law
goodwill observed by the states in the mutual intercourse without being legally bound by
them. Branches of Public International Law
Human Rights Law
2. Reciprocity: states that favors benefits, and penalties that granted by the one state to Humanitarian Law
the citizens or legal entities of another, should be returned in the same kind Refugee Law
Criminal Law
3. Independence: right of the state to exist and exercise sovereignty Economic Law
Environmental Law
4. Equality of States: state right is inherent in the concept of the state as a subject of
international law and is given general recognition by long standing practice. Entry into Force of A treaty

1
 Bilateral treaty: most provide that once signed and documents exchange this is
enough to bring the treaty into the effect
Multilateral: Number of ratification is reached. (stated in the treaty)
Provide that treaty will be adopted by a vote or rules of procedure nay say that they
must be adopted by way of consensus depends on the rules of negotiations decided
by..
DOCTRINES AND PRINCIPLES
1. Doctrine of Transformation: requires a legislative action to make the treaty
enforceable to the municipal sphere
2. Doctrine of Incorporation: general accepted principle forming part of the law
of the land, no further legislative action is needed
(Customary international Law)
3. Adoption Doctrine: Municipal law adopts international law
4. Harmonization doctrine: application of international law is appropriate with
the customs
5. Restricted automatic doctrine: State policies and principle, automatic
adoption of international law but restriction that such automatic adoption is only
to generally accepted principles of international law.
Conflict between a treaty an the constitution= constitution highest law of the land
Structure of Public International Law- refers to laws of treaty, international
responsibility of the state.
PRIMARY Sources of the International Law:
1. International Convention/ Treaties- Most common source (most binding)
Limitations: Treaties are bound to the states that are signatories to it ONLY.
ASPECTS IN ENTERING A TREATY:
A. Reservation to Treaty Obligation
- Must be done before the signing of the treaty.
- Presumption: If the treaty is silent- it allows reservation
Art 19 of Vienna Convention: A state may formulate reservation UNLESS:
1. Reservation is prohibited by the treaty
2. Treaty provided the reservation
3. Reservation is incompatible with the object and purpose of the treaty
Art 21 of Vienna Convention: Effects of Reservation
1. Modifies the relationship to the extent of the reservation
2. Modifies provisions to some extent for another party in relations with XXX
state
Dont necessarily need the approval of all state.
B. Derogation- Partial revocation of your compliance or obligation in a treaty.
Eg: State already a signatory of a treaty (No reservation) Allows the state to take a break
from its obligations to comply with the treaty (temporary)
Requisites for a valid Derogation:
1. There must be the presence of war or public emergency
2. That it is officially proclaimed by state
3. The need to derogate from the treaty obligation is proportional to the
current situation of war or public emergency
4. Consistent
5. Non-discriminatory
Rights that cannot be derogated:
1. Right to life
2. Right against slavery
3. Right against torture
4. Etc..
Once the war or public emergency ceases, you are bound to comply with the treaty again.
C. Denunciation- The state will totally withdraw from its being a signatory to a treaty
Article 54 of Vienna Convention on the law of treaties: 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.
** Consent of the other states is important- especially if the number of the ratification will be
affected that will cause the effectively of the treaty to be at risk.
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.
2
If the treaty is silent (no provision) about denunciation or termination- withdrawal from the
treaty is not allowed, unless establish intention of the parties for withdrawal.
If denunciation is allowed, a party must not give less than 12 months notice for withdrawal.
If a state cannot denounce and commits a violation, it is liable.
2. Customary International Law- Can be codified by a convention or treaty.
- Customs exist when there is a clear and continuous habit of doing a certain things developed
under the conviction that it is obligatory and has become a right.
- International court of justice held that customary rule must be based on CONSTANT AND
UNIFORM USAGE.
Rules of customs are created by actual state of practice and must be consistent, general and
uniformly adopted by a state.
General Rule:
** If there is a treaty- treaty will govern
** No treaty- Customs will govern
** One treaty state and one non-treaty state- Customs govern = one state is not bound to
comply with the provision of the treaty so customs is applied.
3. General Principle of Law
- These are once those are recognized among civilized nations.
SECONDARY Source of Intl Law:
4. Judicial Decisions and Scholarly Opinions
Characteristics of a state:
State has a permanent TERRITORY. No minimum requirement as to how the state with
regards to the territorial boundaries for as long as it is geographically defined.
One of the matters that determine a state is the POPULATION. And the population that is
meant there for a state to exist is that it is enough to be able to sustain itself.
Third, is that you should have a GOVERNMENT. Any unrest within the state is not always
determinative of the non existence or the existence of a government but some of the forms of
the government is a central characteristic of an existing state and existing states under
international law can lose their statehood or that can lose of being a state by an agreement
that they will attached to another state.
Ex: Guam and the United states. Guam is not really a state but a semi-state because they are
attached to the United States, however they are not allowed to vote but they are called
citizens. They are not allowed to interfere the affairs of the government. But they have a
representation in government. But in choosing the president, they are not allowed to choose
and vote.
And another characteristic of a state for it to be called a state is that you have the capacity to
enter into relations between the states both it is a prerequisite and a consequence of
statehood. And one example is which it is one you can be a member of the united nations or
you have the, just like in a contract, you have a legal capacity to enter into a treaty with
another nation. That is what you call as CAPACITY TO ENTER INTO RELATIONS.
Entrance into the United Nations however does not necessarily implied recognition by the
other UN states. Recognition has to be by or individually binding by the state itself. The states
generally recognize other states through independent actions of the states. One action or one
determinative factor wherein you can say that a state recognizes you as a state is when the
state they are trying to establish embassies in your territory.
With regards to jurisdiction over person, in order to be able to enforce its laws, it requires
more than just jurisdiction it has to over the territory, it requires jurisdiction over the persons,
meaning over its nationals. Normally the state requires custody over the person involve in
order to, lets say for example, to execute its law. But then again, our laws require in so far as
the citizenship is concerned, we do have the extended arm of the state in order to protect its
citizens and its nationals. If the state has custody of the individual, it can exercise its right to
punish subject to human rights restrictions, because a state when it comes to human rights,
for as long as the person, regardless of nationality, is within your territory then a state has the
duty to enforce compliance of all human right treaties, particularly those that the state has
entered into. Meaning, whatever human rights treaties that the state has entered into, it should
be made applicable not only to its citizens but to any individual located within its territory.
What if the does not have custody? International law has developed a piecemeal approach to
enforcing the state law. How and in what manner, for example: Not within your jurisdiction,
remember we do have conflicts of law, if your law maybe applicable then we can take
cognizance or jurisdiction of this case.
There are 3 duties imposed by or on the states with regards to international human rights
norms, these are called the 3 fold duties of the state:
1. Duty to respect
3
 In duty to respect requires that the state should refrain from any measure 5. Right of diplomatic intercourse (right to be represent itself in the international
that will interfere or will impair the enjoyment of the right by that is inherent community)
upon a person if entails on a negative duty.
Right to acquire territory (modes):
Negative duty- it means the right exists and that you compel the
government not to do any act that will violate or impair the 1. Discovery and Occupation
enjoyment of that existing right. 2. Acquisitive Prescription
2. Duty to protect 3. Cession
The states are required to protect every individual within its territory and 4. Conquest and Subjugation
make sure that their rights are respected and protected not only by state 5. Accretion
but by other persons and other entities as well. Thats why, under the duty
Lose a territory:
to protect, a state is required to take the necessary step to ensure that
individuals under its jurisdiction are protected and that because of that 1. Abandonment- must be physical
should come up with legal remedies in the event that there are persons 2. Prescription
and entities found to be violating the rights of other persons, because of 3. Cession
these legal remedies, there has to be a collaborative effort between the 4. Subjugation
departments of the government to ensure protection of the person in the 5. Forces of Nature
enjoyment of his rights. It requires for a responsible party to ensure that 6. Successful Revolution
third parties do not deprived the rights of the people
Outer space and Airspace
3. Duty to fulfil Space beyond its atmosphere is in capable by its nature of appropriation on behalf
It is the duty on the part of the state to ensure that the rights as
of any particular sovereignty or any particular state.
enunciated under human rights instruments even in the universal
declaration of human rights are enjoyed by the people. Who has jurisdiction over space activities? Control or supervision vested in
international body statistic of united nation, it may be exercised by the country
STATE- group of people capable of procreation occupying a fix portion of a territory. They
conducting the activity from which the departure was physically made of the citizens
have a government
conducting the enterprise.
Attributes of a state:
Outer space- over and above the aerial domain or territory of a state.
1. People
2. Territory HUMAN RIGHTS
3. Government
4. Sovereignty or Independence 2 types of mechanism that which we can demand compliance from the states:

Fundamental rights of a state: The basis for a states compliance on treaties depends on whether they are
signatory to a treaty or not. Because if a state is a signatory to a human rights
1. Right to exist treaty, then the mode of compliance or how we demand compliance is what we call
2. Right to be independent a TREATY-BASED MECHANISM.
3. Right to Equality
4. Right to have a property and jurisdiction

4
 The compliance of those states that are not signatory to any human rights is based
on the charter of the UN of which most states are signatory to. This mode is called
the CHARTER-BASED MECHANISM.
Human Right- rights which are inherent in every person without which you cannot live as
human being. These human rights, if and when enjoyed by a person, allows him to fully
develop and use the human quantities, intelligence, talents and to satisfy his spiritual and
others which are essential of being a human. Allow a person to live with dignity, and because
of that, it is an entitlement that every person is entitled to the enjoyment of his rights and that it
can be demandable from the state.
WAYS THAT WHICH YOU CAN DEMAND IT FROM THE STATE:
1. NEGATIVE CLAIM- youre exist. You are entitled to the enjoyment of that right and
because you are entitled to that enjoyment of that right, it is incumbent upon the
state to ensure that they do not do anything to violate that right.
Example: right to life, liberty, property
2. POSITIVE CLAIM- a right or an entitlement of a person and because you are
entitled to it you can demand from the state to fulfill its obligation and allow you to
possess and enjoy and have that right.
Example: right to an adequate standard of living. (mao nay mga housing projects kay
mao na ang isa sa mga kailangan sa mga taw and kailangan na ihatag sa state.)
But there are times that a right can be a positive and a negative claim at the same time.
One of the basic purposes why the UNITED NATION was created was because of HUMAN
RIGHTS.
Preamble: to save succeeding generation from the scourge of war which is twice of our life
time has brought sorrow to mankind. They reaffirm the faith and the fundamental human
rights..
That is why the united nation and the charter of the united nation be a binding source in order
for us to be able to demand from the state its three fold duties: Duty to respect, protect and
fulfill.
Art 1 of the Charter of the United Nations specifically states that:
1. To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of threats to the peace, and for
the suppression of acts of aggression or other breaches of the peace, and to bring
about by peaceful means, and in conformity with the principles of justice and
international law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the principle of
equal rights and self-determination of peoples, and to take other appropriate
measures to strengthen universal peace;
3. To achieve international co-operation in solving international problems of an
economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment of these
common ends.
At which part of the charter that we can say that it is binding upon the state to respect human
right and to source the charter based mechanism, in order to enforce compliance from the
state? Art 55 and 56 of the United Nations Charter.
Art 55: the United Nations shall promote universal respect and observance of human rights
and fundamental freedom for all without the distinction of the race, sex, language or religion.
Art 56: all members of the united nation will pledge themselves to take joint and separate
action in cooperation with the organization in order to achieve the purpose of article 55.
(This is all about the charter based mechanism.)
1946- The UN establishes a Commission on Human Rights.
One of the primary tasks of the commission is to draft an instrument that would clearly define
what the basic and fundamental rights of a man are.
1948- Through a general assembly resolution, an instrument was adopted by the member
nations of the United States and that instrument/ document is what we call now as the
UNIVERSAL DECLARATION OF HUMAN RIGHTS.
Argument: will a universal declaration of human rights be binding among states when it is not
a treaty? Universal Declaration of Human Rights is a SOFT LAW.
5
Soft law- it can be legally binding source from which specific law and treaties will be passed
and be legally binding. And plus the fact that it can be given rise to become a generally
adopted principle of international law because it becomes state practice.
The essence of UDHR is it became the basis in order to allow the states to establish human
dignity as the source and classification of human rights and it serves to determine the content
of human rights from that passage of the universal declaration of human rights, is franks forth
many specific human rights duties.
7 major human rights instruments arising from the passage of UDHR:
1. ICESCR- international convention on economic, social and cultural rights
Main feature: applies everyone within the jurisdiction of the states. Basic rights of a
person
Supervisory body: 18 independent to serve a term of 4 years
Supervisory mechanism: reporting mechanism- submits reports every 5 years
2. ICCPR- international convention on civil and political rights
Main feature:
Supervisory body:
Supervisory mechanism: reporting, inter-state complaint and individual complaint
mechanism
(Case of paco laranaga)
3. ICERD- international convention on elimination of all forms of racial
discrimination
Main feature: detailed prohibition and obligation to prevent discrimination on the ground
of race, color, origin and national or ethnical background
Supervisory body: committee of ERD, 18 independent to serve a term of 4 years
Supervisory mechanism: reporting, inter-state complaint and individual complaint
mechanism
4. CEDAW- convention on the elimination of all of discrimination against woman
Main feature: rights of woman to enjoy equal footing with man
Supervisory body: 23 independent to serve a term of 4 years
Supervisory mechanism: reporting, inquiry procedure and individual complaint
mechanism
5. CAT- convention against torture
Main feature: defines refoulment, torture, protect victims of torture
Supervisory body: 10 independent to serve a term of 4 years
Supervisory mechanism: reporting, inquiry procedure and individual complaint
mechanism
6. CRC- convention of the right of a child
Main feature: best interest of the child, protection of the childs right to life, to a name, to
a nationality
Supervisory body: 18 independent to serve a term of 4 years
Supervisory mechanism: reporting mechanism
7. MWC- migrant worker convention
Main feature: prevent and eliminate exploitations of migrant workers
Supervisory body: 10 independent to serve a term of 4 years
Supervisory mechanism: reporting, inter-state and individual mechanism
*** Optional protocol- should be a signatory of any of the major instrument before be able to
sign in a protocol.
4 types of mechanism under the treaty-based:
1. Reporting mechanism
2. Individual complaint-
3. Inter-state complaint- a state/individual whose rights are discriminated upon can file
or sue against another state
4. Inquiry procedure
United Nations Charter was signed on 1945 with 50 signatory countries. And later on was
composed of 51 member states. Came into existence on October 1945 after the charter has
been ratified by china, france, (di nako masabtan ang gisulti ni atty, sorry), united states,
united kingdom, together with the majority signatory states.
United Nations headquarter is found in New York. United States is by far the biggest
contributor with regards to UN budget.
In order to maintain the membership in UN, you just dont sign, there are also dues that you
have to pay or contribute to the Un in order to maintain the operation of UN.
Objectives: you will find it in the preamble of the charter
Preamble:
to save succeeding generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind, and
6
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in
the equal rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from treaties
and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom,

Principles of United Nations:

1. EQUALITY- the moment you become a member of UN, all member states shall
enjoy sovereign equality
Demand: Follow and obey the charter
2. UN shall not interfere into the domestic affairs of any country

Key principal organs under UN

1. General assembly- initiates studies or make recommendations to the promotion and
protection of human rights
2. Security council-
3. Economic and social council
4. ICJ
5. Secretariat
6. (di nasad nako masabtan) council