Usus – STATE PRACTICE

The initial factor for determining the existence of custom is the actual behavior of
states(usus), This includes several elements, duration, consistency and generality
of the practice of states.

Duration (diuturnitas) can either be short of long. (Long example pacquete havana
case)
(fishing smacks were subjected to the capture of armed vessels of the US during its
war with spain.)

By an ancient usage among civilized nations, beginning centuries ago, and gradually
ripening into a rule of international law, coast fishing vessel, pursuing their vocation
of catching and brining in fresh fish are excempt from capture as prize of war..

Uniformity and Generality, need not be complete but it must be subtantial

In order to deduce the nexistence of custmary ruels, the court deems it
sufficient that the conduct of state should , in general, be consistent with such
rules, and that instances of state conduct inconsistent with a given rule should
generally have been treated as breaches of that rule, not a indications of the
recognition of a new rules

(short Example) Continental Shelf cases

Does State Practice include only, Acts of States? Or does it include Declaration of
States?

Opinio Juris Meaning?

One the existence of state practice has been established it becomes necessary
to determine why states behave the way the do. Do satte behave the way the do
because it is obligatory or as a matter of courtesy.

Opinio Juris – or the belief that a certain form of behavior is obligatory is what
makes practice an international rule, without it practice is not law.

Pacquete habana Casess/ LOLA CASE

During the Spanish American war 2 fishing vessels owned by Spanish subjects who
ere residing in Javana went to spain to catch fish. Upon their return they were
captured by a US Squadron.
The two ships were later sold at auctions as prizes of war upon the order of the
District court of the US

ISSUE WON COASTAL VESSELS OF AGGRESSOR MY BE SUBJECT TO CAPTURE

BY ANOTHER AGGRESSOR DURING TIMES OF WAR.

HELD: NO,
According to international custom.
 An ancient usage among civilized nations, accordingly and that a rule in
international law that coastal fishing vessesls have been recognized as excempt by
their cargoes and cruises from capture.

This usage can be traced by means of documents as far back as 1403 ad and
subsequent evidence also shows that other states have followed the same usage and
even well known writers have indicated that this usages became general in scope.
Coastal fishing vesseels cannot be seized as a prize of war according to International
Custom.

Instant Custom
spontaneous activity of a great number of state supporting a specific line
of action.
Similar to the World Trade Center Attack in New York, a coalition of forces
arose ina matter of months supporting action to be taken against Osama Bin Laden.
(however, do note that the collective action was that the object of the defense was
not due to an attack from another state but due to an attack from a non state
organization)

President who declared Continental Shelves., sovreignity over continental

shelves.
Harry S Truman – codified the rules of international law relationg to continental
shelves. June 10, 1964
established rights of a state over continental shelves surrounding it, if any.
The treaty was one of the 3 agreed upon at the first UNCLOS I

The treaty dealt with seven topics: the regime governing the superjacent
waters and airspace; laying or maintenance of submarine cables or pipelines; the
regime governing navigation, fishing, scientific research and the coastal state's
competence in these areas; delimitation; tunneling.

(CASES)
check pictures

ROLE OF THE INTERNATIONAL LAW COMMISSION

ELEMENTS OF A STATE (p72)

People or Population
A community of people sufficient in number and capable of maintaining
the permanent existence of the community and held together by a
commong bond of law. (racial/ cultural diversity or economic
interest is of no legal consequence, nor is a minimum population
required.

Territory
A defninite territory over which an entity exercises permanent
sovereignty is another element of a state.
 Government
Institution or aggregate of isntitutions by which an independent society
makes and carries out those rules of action which are necessary to enable ment o
live in a social state, or which are necessary to enable men to live in a socail state,
or which are imposed upon the people forming that society by those who possess the
power of authority of prescribing them.

International law does specify what form a government should have, it is the
national government that has legal personality and it is the national governmanet
that is internationally responsbile for the actions of other agencies and
instrumentalites of the sate.

Sovereignty
meaning independence from outside control.
Montevideo Convention – the capacity to enter into relations with other
States,
however the 2nd definition requires recognition.

Self-determination
a principle where all peoples have the right to self-determinations, by
virtue of that right they freely determine their political status and freely pursue their
economic, social and cultural development.

2 categories
Establishment of new states
a group break away and form a new entity

Claim to overthrow the effective ruleers and establish a new

government. (thru revolution)

TYPES OF DOCTRINES

WILSEN
The Wilson Doctrine is a convention in the United Kingdom that restricts the police
and intelligence services from tapping the telephones of members of the House of
Commons and House of Lords. It was introduced in 1966 and named after Harold
Wilson, the Labour Prime Minister who established the rule. Since it was
established, the development of new forms of communication, such as mobile
phones and email, has led to extensions of the doctrine. However, it was never
extended to cover members of the new devolved legislatures.

TOBAR
a political principle in the Americas, enunciated in 1907 by C. R. Tobar, the minister
of foreign affairs of Ecuador, proscribingthe extension of recognition to any governm
ent that accedes to power by other than constitutional means. Tobar proposedthat t
he American states sign an agreement allowing for intervention in the internal affair
s of Latin American countries withsuch a government.

The Tobar Doctrine was incorporated in two agreements concluded by Costa Rica, El
Salvador, Guatemala, Honduras, andNicaragua in December 1907 and November 19
23. The agreements stipulated that the signatories would withholdrecognition from a
government established in any of the five republics as a result of a coup d’etat or rev
olution. The USA,although it refrained from signing the agreements, nevertheless fre
ely invoked them in the pursuit of its policies during thefirst half of the 20th century
.

States that a goveernemnt need pupular consent or approval of the people and does
not recognize a government that arose from revolution. And if it does arise from
revolution there mest be a freely contested election in order for it to be recognized.

WEBSTER

JEFFERSON – US Deals with any government which is in effective power.

STAMSON – Government which is formed from external aggression shall not be
recognized.
ESTRADA – Recognition should not be used as a tool for the advancement of
interest, the Government whould continue to deal with others without raising the
issue on recognition. Otherwise, There would be an attempt to pass judgement on
the internal governance of other states. Governments should adopt a policy to never
explicitly recognize another government nnd continuing its relations with it.

SOVREIGNITY VS INDEPENDENCE
The main difference between Sovereignty and Independence is that
the Sovereignty is a concept that a state or governing body has the
right and power to govern itself without outside
interference and Independence is a condition of a nation, country,
or state which exercises self-government, and usually sovereignty,
over the territory.

Sovereignty
Sovereignty is the full right and power of a governing body over
itself, without any interference from outside sources or bodies. In
political theory, sovereignty is a substantive term designating
 supreme authority over some polity. It is a basic principle
underlying the dominant Westphalian model of state foundation.
Independence
Independence is a condition of a nation, country, or state in which
its residents and population, or some portion thereof, exercise
self-government, and usually sovereignty, over the territory. The
opposite of independence is the status of a dependent territory.

What are these doctrines

CONSEQUENCES OF RECOGNITION (p74)

Insurgency means rebellion, riot or mutiny by portion of the citizens of a State against the
established government. It indicates armed struggle by dissident forces the established
government in a state.
Belligerent signifies a stage of the civil war in which there are two contenders for power that
can be placed on a platform and there is something like a state of war, and not only civil
conflicts. Despite conflicting opinions as to the exact definition of "insurgency" there is a
consensus that the insurgency can become belligerency.

INSURGENCY

CONSEQUENCE STAGE OF BELIGERENCE

belligerence has a formal status that implies rights and duties. However, if the rebels are
granted the status of belligerents, they shall become subjects of international law and may be
responsible for their actions.

IS THE NPA STAGING AN INSURGENCY OR BELLIGERANCEY

IS THE MILF REACH THE STAGE OF BELLIGERANCY OR INSURGENCY

CONSEQUENCE OF CONFLICT REACHING THE STAGE OF BELIGERENCE

EFFECTS UNDER INTERNATIONAL LAW