PUBLIC INTERNATIONAL LAW intercourse natural law together for

or compact, and be, the common

CHAPTER 1 – GENERAL PRINCIPLES w/c can be indeed, an good.
discovered expression of
INTERNATIONAL LAW DEFINED. and it.
 ORIGINS recognized
 Runs concurrently with the development of sovereignty. by every
 Hugo Grotius and Alberico Gentili individual
o Characterized international law as municipal law writ large. through the
 By 19th century use of his
o Napoleonic Wars, the 1st major peace summit took place. reason and
o Followed by the early versions of several important treaties including those conscience
 establishing rules for the navigation of rivers Since Int’l law is not In case of Law is This belief can be
 establishing neutrality of Switzerland and Belgium individuals a law of conflict the therefore seen from the
 1st codified law on maritime warfare compose the subordination natural law considered communications
State whose but of prevails, necessary for the States make
 Kellogg Briand Pact, which sought to limit or abolish war.
will is but the coordination. being the the society to to each other;
 Creation of an early framework of rules regarding the recognition of States, and
collective more function and, communications
State responsibility. will of the fundamental because it is which notably
o The term international law was first formally used by Jeremy Bentham in 1870. inhabitants, law. necessary, it contain
the State also is ex substantial
 TRADITIONAL DEFINITION becomes hyphothesi reference to law
 Branch of public law which regulates the relations of States and of other entities which bound by the binding. and other legal
have been granted international personality. natural law. references.
 Subjects – entities that possess international personality and have rights and
obligations recognized under international law THEORIES OF INTERNATIONAL RELATIONS
 Objects – persons or things in respect of which rights are held and obligations
assumed by the subjects of international law. REALIST INSTITUTIONA NEOLIBERALIST DEMICRATIC HEGEMONIC
THEORY LIST THEORY THEORY PEACE STABILITY
 A body of customary and conventional rules w/c are considered legally binding by
THEORY THEORY
civilized states in their intercourse with each other (Oppenheim).

 MODERN DEFINITION States are The relation of States are geared Democratic Global system is
 Law that deals with the conduct of States and international organizations, their relations in a State are a product toward gains and states are likely to be
with each other and, in certain circumstances, their relations with persons, natural or constant of their interaction profits, therefore, generally stable when
juridical. struggle for not only among relations are often hesitant to go to controlled by a
power; themselves, but dependent on war with other single state
BASIS OF INTERNATIONAL LAW therefore, also with the whether the same democratic which would be
each State various institutions would be profitable states. known as the
NATURAL POSITIVIST ECLECTIC OTHER: BELIEF OF can be and hierarchical or not. Hegemon.
LAW SCHOOL OR UBI STATES reasonably structures in the
SCHOOL GROTIAN SOCIETAS assumed to global political
SCHOOL IBI JUS be acting sphere.
There is a Binding force In so far as it Law is Other cogent only in
natural and of international conforms to considered as argument for pursuit of
universal law is derived the dictates of the hallmark international law their
principle of from the right reason, of any is simply that it individual
right and agreement of the voluntary political exists because interests.
wrong, the States to be law may be community States believe it
independent bound by it. said to blend which intends exists.
of mutual with the to act
 INTERNATIONAL LAW AS TRUE LAW

AUSTINIA COMMAN INT’L LAW AMENDMENT APPLICAT ENFORCE

PUBLIC INTERNATIONAL LAW DISTINGUISHED FROM: N D AS LAW AND ION, MENT V.
DILEMMA THEORY ADJUDICATI ENFORCE ENFORCE
PRIVATE INT’L INT’L INT’L INT’L ON MENT ABILITY
INT’L LAW MORALITY COMITY DIPLOMACY ADMINISTRA AND
OR ETHICS TIVE LAW COMPLIA
As to nature, Principles Rules of Objects of Body of laws NCE
international vs. which govern politeness/cour international which regulate John Austin: Laws are True law Amendment The absence Actual
municipal; relations tesy observed policy and the the Laws are commands because are needed by of a central enforcement
as to of States from by States in conduct relations and commands of the despite the legal systems. lawmaking is irrelevant
remedies, the standpoint their relations of foreign activities of of the sovereign prevailing authority and to the
international of conscience, with other affairs. . national and sovereign authority belief that Int’l law unlike the binding
modes vs. local morality, States. international which and are int’l law does legislation, has debilitating quality of
tribunals; justice and agencies with receive the backed by not comply rules based on jurisdictional int’l law, as
as to parties, humanity. respect to their habitual sanction. with the consent. defects enforcement
international material and obedience of requirements weaken the is not what
entities vs. intellectual the members Those who of sovereign Thus, focus expectation is meant by
private persons; interests which of an subscribe to issuance, here is on self- of compliance the term law.
as to have received independent this theory compulsion, interest rather in comparison What is
enforcement, international political therefore see and penalty is than common with the material is
international recognition. society. int’l law as still has such good. situation in that int’l law
sanctions vs. merely a mechanism Adjudication is the domestic is
sheriff/police. Int’l law code of rules for also with plane. enforceable
Not really a does not of conduct enforcement consent. even though
branch of int’l follow of moral such as self- These it lacks of
law but is rather precept and force and is help, force, considerations police force
a part of lacks an simply collective are, however, or
domestic law effective positive action, and balanced by compulsory
dealing with enforcement international resort to UN. the risk of court.
disputes that mechanism. morality. political/
arise from economic
private retaliation
transaction and other
between sanctions,
individuals or such as
companies and adverse
corporations public
from one opinion,
country vis-à-vis retorsions,
their counter reprisals, the
parts in another UN
country machinery,
and the
conviction
that
obedience
will redound
to the public
good.
 RELATIONSHIP WITH MUNICIPAL LAW
HORIZONTAL
Int’l law is horizontal by nature
States are more or less on equal footing and
are generally unable to compel each other to
act.
VERTICAL
Domestic or municipal law is vertical
Municipal law, a hierarchy exists whereby
those on top can give commands to those
lower in the system.
 THEORY OF COORDINATION
 Although domestic law and international law are on 2 separate planes, they nevertheless
affect each other with regard to obligations.
 However, it is argued by Fitzamurice,
 That since the 2 systems lie on different fields, their interaction should nor bring them
into conflict with each other since they operate in 2 different spheres, with each being
supreme in its own field.

 INCORPORATION VS. TRANSFORMATION

MONIST DUALIST
there is no substantial distinction between IL ML INCORPORATION TRANSFORMATION
international law and municipal law Expressed in Sec. 2, Art. II, Philippine Requires the enactment by the legislative
not imposed but issued by a political Constitution, body of such int’l law principles as are
adopted by states as superior for “The Philippines Renounces war as an sought to be part of municipal law
a common rule of observance by those instrument of national policy, adopts the
action under its authority generally accepted principles of
is derived from such consists international law as part of the law of the
sources of enactments of the land & adheres to the policy of peace,
as international law-making equality, justice, freedom, cooperation and
customs, authority amity with all nations.
conventions or
general principles of
 Internationally speaking, the fact that a country follows the incorporation doctrine for a
law
customary international law does not automatically mean that the same follows for
applies to relations regulates
between relations of conventional international law or treaties.
states and individuals among  In PH, the only qualification in employing the doctrine of incorporation, in case of
international themselves treaties the same must be in conformity with the Constitution.
persons
they are resolved violations of ML are  CONFLICT BETWEEN INT’L LAW AND MUNICIPAL LAW
through stateto-state redressed through
transactions local On the domestic sphere, w/a local court International sphere, w/an int’l tribunal
judicial and deciding deciding
administrative If conflict is w/ Consti International law is superior to municipal
processes  uphold Consti law, because int’l law provides the standard
there is collective entail individual by w/c to determine the legality of a State’s
responsibility responsibility If conflict is w/statute: conduct
 doctrine of incorporation decrees
that rules of int’l law are given
 WRITTEN IN THE LAW equal standing w/, but not superior
 States that have written constitutions usually indicate the manner in which int’l law is to national legislative enactments.
treated in domestic courts.
 Generally covers only customs and principles but not treaties, since the latter usually A treaty may repeal a statute & a statute
still needs transformation. may repeal a treaty; thus, the principle of
lex posterior derogate priori, that w/c
 THE PRISM OF STATE PRACTICE comes last in time, will usually be upheld
by the municipal tribunal.
 Application of int’l law in the municipal law is better understood through prims of State
practice.
 Ex: in UK and US, domestic legislation or judgments trump customary int’l law; while
in Malaysia, customary law us already deemed incorporated in their jurisdiction.
 APPLICATION OF VIENNA CONVENTION ON THE LAW OF TREATIES  Law between parties, regardless of how many states are involved, it must always be
 Int’l law does not entirely ignore municipal law, the latter being used as evidence either remembered that a treaty becomes the law between the parties who gave their consent
of custom or general principles of law. thereto.
 Article 27 of the VCLT,  Although there are instances where States do not give their Consent are bound by
 “A party may not invoke the provision of its internal law as justification for its failure treaties, such as situation wherein a treaty is merely meant to codify existing practices
to perform a treaty”, municipal law cannot be used by a State as an excuse for non- regarding jus cogens, the general rule still stands that State are only bound to the
compliance with an obligation under international law. treaties they gave their consent to, and only to the extent by which they allowed
themselves to be bound.
 SOURCES OF INTERNATIONAL LAW
 In domestic sphere, the Constitution, legislative enactments, and case law (stare decisis) 2. International Customs
constitute such sources.  As evidence of a general practice accepted as binding law through persistent usage over
 On the international plane, it is a bit complicated because there is no body likened to a a long period of time.
national legislature, no fundamental law, and the doctrine of precedents is not  Custom must be:
applicable. a. Prevailing practice by a number of States;
b. Repeated over a considerable period of time; and
 Material and Formal Sources c. Attend by opinio juris or a sense of legal obligation.
 It is defines as a constant and uniform usage, accepted as law.
Material Source Formal Source  Custom may be general or regional
the substance of the law is derived Become the basis of the validity and force  In either case, the elements of custom must both exist and be proven.
of law.
 Two elements of custom which must concur are:
Ex:
1. State practice
While custom itself is a formal source of law, the State practice that was taking place even
2. Opinion juris
before such practice crystallized into custom can be considered as the material source.
 A sub-elements of State practice, the practice in question must be demonstrated
to have been
 Most authoritative enumeration is found in Article 38, Statute of International Court of a. General
Justice which provides that the Court, whose function is to decide in accordance with b. Uniform and
international law such disputes as are submitted to it, shall apply: c. Over a long enough period of time to enable it to crystallize.
 As Primary Sources:  Custom can be proven using a wide range of instruments including
1. International Treaties and Conventions, whether general or particular, a. diplomatic correspondence,
establishing rules expressly recognized by the contesting states. b. press releases,
a. Treaties may codify, crystallize, or create obligations. c. opinion or official legal advisers,
 Codification is done where the treaty merely complies existing obligations to d. executive decisions and practices,
facilitate simplicity, as in the case of the 1982 UNCLOS. e. judicial decisions,
 Crystallization is done to formalize as an obligation existing State practice, as in the f. legislation, and
case of the 1958 Geneva Continental Shelf Convention. g. resolutions of the UN General Assembly, among others.
 Creation is done where the treaty itself is the first time wherein such obligation was
created between the parties, as is usually the case in bilateral trade agreements.  Although a large number of state performing the same conduct may create a
 Treaties, just like domestic law are governed by the rules on Lex Posterior and Lex presumption that there is in fact a custom in existence, such presumption is not
Specialis. conclusive and may be rebutted with a wide range of evidence.
Lex Posterior Lex Specialis
A later treaty overrides a prior treaty in A more specific treaty should be  Baxter Paradox
case of incompatibility followed if in conflict with a more  As more and more States subscribe to a treaty, the understanding of the contemporary
general treaty. status of customary international law will decrease because the actions of States are
 Treaties may be bilateral or multilateral, depending on how many parties are already expressly guided by a real obligation under the treaty and not a mere sense of
involved. opinion juris.
Bilateral Multilateral
Usually for the regulation of Usually general in nature and establish  State Practice
particular consduct such as trade. common principles of law.  Consists not only of what States say or do but also what they fail to say or do.
  Has 3 sub-elements which are:  It is one who objects to the practice from the early stages of the practice and
a. Generality maintains the said objection consistently.
b. Uniformity
c. Duration  Exception to Persistent Objector
 Mere objection at the beginning is not enough for a State to claim it is a persistent
 Uniformity objector; a state cannot claim to be a persistent objector when the practice being
 Although uniformity is required absolute uniformity by all States is not. objected to has already attained status of jus cogens.
 Substantial Uniformity of a given practice among state is enough.
 Actual uniformity is not required provided that the practices of the State are extensive  Relationship between Treaty and Custom
and virtually uniform with one another.  If there is a conflict between a treaty and a custom, a treaty is superior.
 Held: some degree of uniformity amongst State practices is essential before a custom  The exception to this rule is if the custom involved in jus cogens.
can exist.  Also, a treaty may create custom, provided it was intended to be norm-creating, and a
State may be bound by both a treaty and a custom at the same time insofar as they do
 Generality not conflict with each other.
 Given that a custom can be either general or regional, the practice under consideration  The mere fact that a custom is enshrined in a treaty does not prohibit the Court from
must be widespread among the States that are particularly involved in the relevant entertaining a claim seeking relief base on violation of custom.
activity.
 Thus universality of a given practice is not a requirement.

 Duration
 Although the length of time required for a practice to crystallize into State practices
varies from situation to situation.
 The time period must be long enough to show that other requirements are satisfied.

 Instant Custom
 Although scholars have been arguing for the existence of an instant custom,
especially in the aftermath of the 9/11 terrorist attacks, the ruling of the ICJ in North
Sea Continental Shelf Case 1969 should still be controlling indofar as it prescribes
that a length of time, regardless of how short, within which the other elements of
uniformity and generality are shown to exist, must still take place before a practice
can crystallize into State practice.

 Opinio Juris
 Constitute a State’s belief that it is acting due to a legal obligation.
 The fact that a State is acting in accordance with opinion juris is never presumed and
must always be proven.

 Legal Conundrum
 Should opinion juris precede State practice or should it already be present when the
practice is performed?
 Although this question has not yet been formally resolved, it must nevertheless be
understood that custom can only arise once both elements concur.

 Persistent Objector
 The mere existence of a custom may not necessarily be enough to bind States,
particularly those who qualify as persistent objectors.