pil midterm notes

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Public International Law Midterm Notes 2013 As usual, we will start with the definition of PIL. Any volunteer? Who has any idea of what PIL is? The beauty of PIL is that a lot of concepts are not defined in a box type definition. Authors, publicists and jurists also give their own definition of what PIL is. The traditional definition is that PIL is the law that governs the relations between states. This definition is not wrong, only that it is the traditional way of looking at PIL. The view then was to look at PIL as a body of rules that governs relationship between states. The definition is specific as to the actor in that particular legal system. Because when we talk about legal system, then we talk about actors in the legal system. So, who are the actors in the legal system? In the definition, it seems that the states are the actors in that kind of legal system. And that legal system that we are talking about is PIL. That is correct but there are modifications of the definition because of the development in PIL. Why is this traditional? Because maybe, the modern definition is no longer focused on the states as actors. Maybe there are other actors in public international law. Other than the states. What about international organizations? Don’t you think PIL also deals with international organizations? For instance: how states deal with international organizations and vice versa? For example, the United Nations, the World Trade Organization. If these organizations are part of the study of international law, then it must be an actor in PIL. What about multinational companies, do they play a role in PIL? What about individuals? Is PIL a kind of a legal system that deals with individuals? Yes or No? If your answer is YES, then in what sense are individuals considered actors in PIL? These are your guide questions. Most authors however agree on what they consider as a more appropriate definition of PIL. I’m not saying it is the correct but at least more appropriate, comprehensive definition of PIL. It’s quite ironic because this Thru the efforts of Room 405. Special Thanks: Sanchez; Balt; Verador; Bristol; Digaum; Gregorio; Pena; Plaza; Regudo; Sayson; Susvilla; Tampus; Toledo; Seville; Sy; Mabano; Otero This material is for review purposes only, exlusively for the benefit of: USC College of Law Second Year AY 2012-2013 Page 1

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Public International Law Midterm Notes

Public International Law Midterm Notes2013

As usual, we will start with the definition of PIL. Any volunteer? Who has any idea of what PIL is?

The beauty of PIL is that a lot of concepts are not defined in a box type definition. Authors, publicists and jurists also give their own definition of what PIL is.

The traditional definition is that PIL is the law that governs the relations between states. This definition is not wrong, only that it is the traditional way of looking at PIL. The view then was to look at PIL as a body of rules that governs relationship between states. The definition is specific as to the actor in that particular legal system. Because when we talk about legal system, then we talk about actors in the legal system.

So, who are the actors in the legal system? In the definition, it seems that the states are the actors in that kind of legal system. And that legal system that we are talking about is PIL. That is correct but there are modifications of the definition because of the development in PIL.

Why is this traditional? Because maybe, the modern definition is no longer focused on the states as actors. Maybe there are other actors in public international law. Other than the states.

What about international organizations? Dont you think PIL also deals with international organizations? For instance: how states deal with international organizations and vice versa? For example, the United Nations, the World Trade Organization. If these organizations are part of the study of international law, then it must be an actor in PIL.

What about multinational companies, do they play a role in PIL?

What about individuals? Is PIL a kind of a legal system that deals with individuals? Yes or No?

If your answer is YES, then in what sense are individuals considered actors in PIL?

These are your guide questions.

Most authors however agree on what they consider as a more appropriate definition of PIL. Im not saying it is the correct but at least more appropriate, comprehensive definition of PIL. Its quite ironic because this definition is taken from a document of the Dept. of Foreign Affairs of the United Statesa highly controversial actor of the international legal system.

So this is the definition given in the Restatement of the law by the American Institute of Foreign Relations law of the United States Section 101. It is in your outline. IF you want to read the whole restatement, then by all means go ahead.

[Now refer to the definition above: that not typed in italized format]

The Restatement is a document that some sort of declaring the understanding of the US government about PIL. Something we do not have. But this is accepted by many authors as the comprehensive and more appropriate definition.

As can be gleaned from the definition, the actors of PIL include the following:

States

International Organizations

Persons (Natural and Juridical)

Now, since we have the traditional definition of PIL, we can therefore say that it started with a type of legal system that deals with states only. And so, dealing with international organizations and persons is more of a modern approach to the study of PIL.

Now, go over this problem class:Problem:

The Chief UN Truce Negotiator Count Bernadotte, a Swedish national, was killed on September 17, 1948 in Jerusalem. The assassins were allegedly a gang of terrorists. Israel was not a member of the UN at the time of the incident.

Issue:

1. WON the UN had legal personality to bring a claim with the view to obtaining reparations in respect to the damage caused to itself, to the victim or persons entitled through the victim.

Discussion:

[Atty Largo reads the problem verbatim] Then proceeds to discuss:

Do you know the idea of Reparation for Damages?

This is a civil law concept but it is also a concept in PIL. You talk about Reparation for Damages when, for example, a citizen of a state suffers damage in a foreign state. An American for example gets killed in foreign soil. So we will study about the possible responsibility of the Philippines for example, and on the part of the US, it may bring a claim for and in behalf of the American victim. The process is called reparation for damages. US will ask for the payment of compensation for the injury inflicted on its citizen.

But this is not a situation where the compensation is given to the victim or the heirs of the victim. This is considered as an injury suffered by the state. So it just depends on whether there is a domestic law in the US for example that allows the payment of compensation after the US successfully recovers from the Philippines by way of compensation. So we call it Reparation for Damages.

So why is that relevant to this problem? This is relevant because in this problem, it is not a state that acts for reparations, but only or merely an international organization. And so we ask the question: Can the UN pursue a claim applying international law for and in behalf of its officer or employee?

If we say YES, then we are saying that the United Nations possesses what we call International Legal Personality. That is the idea. If you are able to insist on a claim through the process of Reparation for Damages, then you possess an International Legal Personality. That is akin to the proper party or locus standi in constitutional law, or real-party-in-interest in civil law.

So, does the UN have personality to ask for Reparation for Damages for and in behalf of its officer or employee? What is the answer? Sige daw, try lang class.

Sir, naa na man to sa definition sir: Dili lang kay states but also international organizations.

Correct!

But what do you think is the best justification for the answer? Why say that the UN and international orgs have international legal personality when it is not a state?

This is the first case that you will have to study. The is the Reparation for Injuries Case ICJ Advisory Opinion in 1949. So, we will try to answer that as we proceed with our discussion.

But the other concern, if you want to understand the concept of PIL, is to study the Subjects of PIL. And how do we distinguish Subject from Objects of International Law?

Authorities in PIL agree that states are the Primary Subjects of international law. And then we have some subjects that we have to treat as secondary. So in the MCQ, if the question goes: Which of the following is not a subject of international law?

a. States

b. UN

c. Individual

d. None of the above

So you of course know the answer.

But the next question is what makes it Primary or Secondary?

The idea class is, if you are the main actor in international law and therefore you are the main subject of international law, then you can go directly to an International Tribunal like the ICJ and seek relief. You can go there directly because you have the personality as a State, assuming you are a member of the UN. Now, whether or not the jurisdiction is compulsory is another thing. You will learn later on that the jurisdiction of the ICJ is not compulsory. There are instances that it is compulsory but generally, it is based on consent. This is why it is really hard to enforce international law because of lack of a centralized legislative department. There is no legislative department that creates Public International Law. We will study later on how PIL is formed and enforced.

So if you can go directly to an international tribunal and seek for relief, then we can say that you are a Primary Subject of International law, because the definition says capable of possessing international rights and duties, including the right to bring international claims.

Now, if you are an individual, you suffered injuries at the hands of authorities in the Philippines and you are an American, what is the proper way of repairing the damage or the injuries caused you? I mentioned Reparation for Damages. So, what does it take to repair a damage caused to a foreigner? Can an individual go directly to the ICJ and sue the Philippines and claim that Philippines have committed an Internationally Wrongful conduct attributable to the Philippines?

Did you remember the case of the Comfort Women? Filipino women had been abused by Japanese Military officers during WW2. So what did the victims do? Did they go to the ICJ and ask for compensation? They coursed their claim thru the Philippine government because only the Philippine state can represent them in an international tribunal. The Philippines is a state and therefore it is that entity that possesses international legal personality. You cannot go directly to the ICJ. You have to ask for compensation. You have to course thru the Philippine government your claim. It is the Philippine government that will bring your claim to the ICJ. Except that in this case, the Philippine government refused because at that time, rape was not considered as Erga Omnes or Jus cogens norm. Jus Cogens is of course a peremptory norm that no state is allowed to violate. It is a non-derogable norm at that time. Maybe now, had the incidence happened at present, maybe the Philippine government will be compelled to bring the claim before the International tribunal.

So individuals are treated as secondary because they cannot pursue or bring international claims directly but only thru the instrumentality of the state. So states are the primary subjects. Individuals can be considered as actually objects of international law in that situation. So the individual is not a subject but merely an object from that perspective.

But in some instances, even individuals can bring international claims directly. But only in specialized circumstances. You think of National Liberation Movements for example. Have you heard of the right to self-determination? In fact, the right to self-determination has already ripened into a customary norm. It is already part of customary international law. Have you ever heard of what happened to Cosovo in the former Yugoslavia?

Groups of people, who share the same history, the same origin, culture may find themselves the minority in a particular community. It may happen that the particular community, lets say a state tends to disregard the unique culture. As a result this particular state or government will only pass one set of laws, one set of legal system, one set of policy and disregarding the unique culture of this minority groups. It can happen. Now, if that happens, after attempts for example by this group, to be recognized by the majority, it may happen that in PIL, they want to secede. And this is the usual problem in state or territorial secession. They cannot continue to live along with the majority with just one set of laws because they have their own culture and practices, traditions. They want that the national government will also address that. So that failure to do so would be a violation of their right to self-determination.

That is the idea of the right to self determination. They want to have their own laws, system, etc.

That is why in the Philippines, we address that. We have our civil law for the vast majority Christian citizens. For our Muslim brothers and sisters, we also have different sets of legal system. We have in fact different procedures in Sharia courts. And they have their own personal laws. If the national government is unable to address that, then it may be a case of violating their right to self determination.

Are you following? Ok

But that is not my point because my point is: Suppose attempts to secede fail because any state also has the right in international law to territorial integrity. That is also a right of any state. So this is one situation that will require a lot of balancing. You have one group trying to separate because they want to exercise their right in customary international law to self determination on one hand. And on the other hand, you also have the state which has the right to territorial integrity.

There is one case that I will ask you to read. This is about Quebec trying to secede from Canada. You try read how the Supreme Court of Canada decided on the right to secede by Quebec.

So assume for example that this conflict between the right of the state to its territorial integrity and the right of the minority to self determination escalates into an armed conflict. Mind you, in public international law, specifically in international humanitarian law, there is also a specific definition of an armed conflict. There are standards and we will study that in IHL. So let us assume that there is already an armed conflict. There is intensity in the fighting and there is uncertainty of winning. So we have one group trying to insist that they separate from the state.

So with the existence of an armed conflict, what happens after?

There are at least three kinds of legal systems in PIL. You have the Laws of Peace, meaning when there is no war. We have of course the opposite, the Laws of War, meaning there is an armed conflict. And the third, the Laws of Neutrality. States not participating in the armed conflict, they are also governed by a different system.

So when there is armed conflict, there is a new set of Law that operates between the participants in the armed conflict.

So what are we doing here?

We are trying to pick a branch of PIL and make it applicable to individualsthose armed groups! They are not states. They are not even organizations. They are just individuals. But why ask them to observe the laws of war?

We have rules in the conduct of war. For example, when you capture a combatants, they are to be treated as Prisoners of War. There are rules under the Geneva Convention on the treatment of Prisoners of War. Civilians also enjoy rights during an armed conflict. There are various principles governing the conduct of war. For example, the principle of proportionality, the principle of military necessity. Theseprinciples are PIL principles but we are making them applicable to individuals. To that extent, individuals become Subjects of PIL because they too are compelled to observe the Laws of War.

Are you following? Well, as if you have a choice noh.

So, you have to distinguish therefor Subject from Object. The Object does not possess international legal personality and therefore it cannot bring international claims. States are the primary subjects while individuals normally are mere objects of PIL. But in some instances, they may be regarded as subjects, that is when they exercise their right to self-determination. They may be treated as subjects when there is already an armed conflict. But in this instance, they may be treated only as secondary subjects.

So a simple question in the essay: How do you treat individuals in public international law? How do you deal with that question? Sir, give me ten pages and I will answer that! Haha

That is why I would say that states are primarily the subjects of PIL, and these are some of the reasons why:

States still primarily the subjects of PIL because:

International law is predominantly made and implemented by states

International organizations are still dependent to a large extent on the willingness of states to support them

Only states can be members of the UN

Only states are entitled to call upon the UN security council under the UN charter in case of threat to peace and security.

Only states may appear in contentious proceedings before the ICJ

Only states can present a claim on behalf of a national who has been injured by another state

Generally, individuals do not possess individual rights. Only to certain instances that they may be regarded as subjects albeit secondary subjects.

So in that case of Reparations for Injuries Case that one involving a truce negotiator of the United Nations, who was killed in Israel, the UN espoused a claim (we call this Espousal of Claim). The UN tried to sue Israel for compensation to represent the victim and the heirs of the victim. It is in this case that the ICJ defined the meaning of International Legal Personality.

So that definition of International Legal Personality is not taken from an author. It is taken from the ICJ advisory opinion. You will notice here that the ICJ is a special kind of body because if you remember Consti 1, our Supreme Court is prohibited from giving advisory opinions. Otherwise, there will be violation to separation of powers. Thus, before judicial review can be exercised, there must be an actual case or controversy first. The ICJ is a different body because it can give advisory opinion.

Maybe we can say that this is a biased opinion because the ICJ is an organ of the UN. Plus, you have the question of WON the UN has international legal personality. But obviously, the ICJ will say, Yes it has. This is what the ICJ said:

What the ICJ is trying to say, although it did not mention in its opinion is that there is such a thing as Derivative International Legal Personality. This is according to some authors about the opinion of the ICJ. So there is such a thing as Derivative International Legal Personality. And this is the kind of personality that the UN possesses that enabled it to espouse the claim of its employee or officer. So the importance of the Reparations for Injuries Case is that it defined International Legal Personality. Second, we also learned tonight that while the UN is not a state, it possesses International Legal Personality by way of a Derivative International Legal Personality.

We now go to the next Topic:One important characteristic of PIL is that that kind of legal system is Horizontal.

First, what do we mean by vertical legal system? It means you have a higher law, you have an inferior law. You have hierarchy of authority. You also have hierarchy of institutions. You have a supreme institution, which enacts laws and commands obedience. This is typical of a domestic legal system. Thus, under our jurisdiction, if the statute violates the constitution, the statute is null and void.

But we dont see this kind of system in public international law. Some authors even call it the Billiard Ball Theory. In billiards, you hit one ball with another ball without affecting the inside or the interior of the ball. It only affects the outside of the ball.

International Law therefore deals with States as a whole and not dealing with what is inside that state. It does not deal with the domestic law of that state.

However, recent development shows that in some instances, international law problems are solved by looking at domestic legal systems. And when we study later on the Sources of Public International Law, we have one source called General Principles of Law. And where do we get General Principles of Law as a source of PIL?

They are usually found in decisions of Local Courts. That is why, on the controversial issue for example of the validity of Transnational Abduction of Criminals, (as invented by the US. They even killed Bin Laden in a foreign soil) there may perhaps be a situation where an International Legal problem is solved by the application of a domestic legal system.

For example, let me go back to espousal of claims. Reparations of damages when a foreigner gets injured in a foreign soil. The process is for the state to bring the claim to the international tribunal. But espousal of claims has requirements before it can be done. Reparations for damage requires:

1. That the victim must be a national of the espousing state. [a state cannot espouse a claim if the victim is not a national of that state. The term national has a different definition in PIL. Mere citizenship is not sufficient. There is a requirement of Effective Nationality]

2. Prior exhaustion of administrative remedies. [You cannot go directly and espouse a claim in the international level if it can be shown that you have available remedies in the local or domestic level. Here you have to look into the law of the offending state.]

International law will sometimes look at the inside of the billiard ball in order to apply it into international controversy. Thus, some authors suggest that the definition of international law should be changed. There are some also who resist the idea of using the term international law because international law, whether it is a law or not is still debatable even up to the present, because of the difficulty of enforcing it etc. etc. Some authors suggest why not call it transnational law.

This brings me to my next question: Have you ever heard of Private International Law or the so called Conflict of Laws? How do we distinguish this from Public International Law?

Private International Law deals with individuals, private corporation when there is a foreign element or when it crosses a border. Example, A German corporation and an Australian corporation entered into a joint venture agreement in the Philippines. The contract was prepared in the US, and perfected, consummated in the Philippines. This is a typical problem of conflict of laws. This is how we distinguish private international law from public international law.

And we should also distinguish it from Trans-National Law where Public International Law still makes use of domestic laws to solve a public international law problem, as opposed to the Billiard Ball Theory in public international law where PIL is not supposed to be dealing with internal or domestic legal system.

[the class stares blankly at Atty Largo]Why is that your reaction class?

The next time we meet, you should be able to answer the following questions:

Some questions during the Oral recit:

Is PIL a law?

Is PIL a binding law?

For as long as it is part of PIL, then it is binding to all states?

Class, in a particular legal system, like the Philippines for example, when we talk about domestic legal systems, and I believe this is true also in most jurisdictions, especially the democratic ones, we subscribe to the majority rule. We are governed by the majority rule. Even if some segments of the society will not agree on the RH bill, we have no choice but to abide when it becomes a law. We have to abide by the voice of the majority.

Is this also true in PIL? In what sense?

If for example there are 50 states agreeing on a particular principle in a convention, non-member states to the convention are also bound?

Is there a majority rule in PIL?

So here, we will have to go back to the definition of Public International Law. You cannot therefore conclude right away that the moment it is considered part of PIL, it becomes binding upon all states.

Or maybe you should ask first the question: Sir, what kind of public international law sir? Because under Article 38 Par. 1 of the Statute of the ICJ, there are various sources of PIL that may be used by the ICJ in deciding contentious cases. So that if you are talking of a treaty or convention, then the treaty or any provision in the constitution is public international law in so far as the member or contracting states are concerned.

So that gives you an idea that it doesnt necessarily follow that majority rule applies in PIL. Did you remember the Anglo Fisheries Case (UK vs Norway), what was this all about?

UK vs Norway:

-Didnt the UK attempt to impose upon Norway a particular principle in the delimitation of its maritime authority?

-What was the 10-mile rule that UK tried to impose upon Norway?

-Was Norway considered bound to observe the principle that the UK wanted to be implement in the controversy?

-Didnt the ICJ mentioned of the fact that it cannot be applied to Norway because this principle had been consistently rejected by Norway? Therefore we have this principle called the Persistent Objector Principle. The other term for this is Persistent Dissenter.

Anyway, I am just testing whether PIL is really a law. At least now, we learned that in so far as a particular international norm is observed and considered binding by states then they may be considered as law. But to say that it is law is not to say that it is applicable and binding on all states. Not necessarily. It depends on what kind of norm or PIL that we are talking about.

Can you think of a particular norm or PIL that perhaps may be binding on all states?

You must have encountered in your readings the prohibition against torture, slavery, genocide. How do we call them in PIL? This we call the Jus Cogens.

So going back, is PIL a Law? It is a law between states that are compelled to obey it by reason of being a party to a treaty or convention; or because the norm or the PIL partakes the nature of a Jus Cogens norm that had been treated by all civilized states as non-derogable.

And so this brings me to the next question: Why do sovereign states obey international law? Is this not contradictory because when you are sovereign, you should not be subject to any higher authority?

One theory offers: States obey PIL because probably they will be benefited by the practice of obeying it. Or some states obey because there might be perhaps adverse consequences to disobedience, and so it is the interest of that state to obey because of fear of adverse consequences to disobedience. For stronger states, maybe their interest is perhaps expansion of possible peaceful agreements to be able to enter into more commercial treaties and agreements. If you are known to be a disobedient state, it may be hard for you to enter into such kind of agreements. That is self-interest that we are talking about. These are based on human behavior. Why do people obey laws? Because we are governed by natural law. We know what is right and wrong. We know the consequences of our actions. This theory on why States obey public international law can somehow be likened to human behavior.

How is international law formed and enforced?

Is formed by agreement of states? If so, are we saying PIL is a positive law? (this is a highly controversial question in international law)

Public International Law may be enacted or by agreement by a group of states. It may be considered a positive law by the contracting parties. Thats correct! How else is PIL formed other than enactment?

PIL may come into existence as a result of a practice of states coupled with the belief that it is practiced by states because the norm or conduct is binding upon states.

So it may be by convention, by treaties, by practice.

Now, the other concern is the enforcement. If it is really a law at least for those who are bound to obey this law, how is it enforced?

Retorsion and Reprisal. How do you distinguish them?

Retorsion is a lawful act which is designed to injure the wrongdoing statefor example cutting off economic aid (this is lawful because there is no legal obligation to provide economic aid, apart from under special treaty provisions).

Reprisals are acts which would normally be illegal but which are rendered legal by a prior illegal act committed by the other state. For instance, if state A expropriates property belonging to state Bs citizens without compensation, State B can retaliate by doing the same to the property of State As citizens. This must be proportional though.

We call this in PIL as Self-Help measures. You will notice that there is no international police or a sheriff that implements or executes the judgment. There is no writ of execution that will be issued by the international tribunal.

So that is one problem in PIL, that is how to enforce the norms effectively. There is no problem if states obey them. The problem is if they dont.

Other than self-help measures, what else? What are other ways of enforcing?

Are you familiar with WTO? What is this organization all about? Member states of the WTO are not supposed to distinguish between foreign goods and local goods to the extent that it will restrict the trade of these goods or hamper trade transactions between member states. The very idea of WTO is trade liberalization. Now, what happens if a member state of the WTO passes a law that effectively prejudices or unfairly treats foreign products in favor of locally produced products and in violation of the WTO?

It is possible that states have entered into a conventional way or mode of enforcing certain international norms. Under the WTO, there are procedures by which a particular norm may be enforced as against a member state. So in this case, the affected foreign state will be allowed to also do the same to the product of the offending state. How is it done? It is allowed by the WTO itself.

So aside from self-help, there are conventional modes or methods of enforcing PIL as borne out by treaties, conventions, mostly multilateral treaties. It is also a fact in international relations that some states are bound to obey PIL because of bar of the public opinion. Some states easily comply with certain norms for fear that they may be the subject of international criticism. Or, states of course may just voluntarily comply with a public international norm.

These are some of the reasons why somehow, though not a product of deliberate enactment or not a product of a higher authority imposing a law upon subservient entities yet, these laws get enforced just the same.

So these are some of the reasons why sovereign states obey. You mentioned about Self Interest theory. That is well accepted. Others offer what we call acculturation theory, meaning it is just part of the culture of states that they easily obey to certain norms. In fact, even in the matter of the true concept of the rule of law there has been a suggestion that rule of law is dependent on culture. Do you believe in that? If you are familiar with the way laws are implemented in Singapore, it is hard to imagine why the Singaporean government is able to do that. Is it just part of the culture of Singaporeans that they obey these kinds of laws, while Filipinos dont? Is it cultural?

There is also the Legitimacy Theory. There is this feeling that a particular norm is maybe because it is just, right, reasonable, or pragmatic. Even if we talk about certain policies in our company, there are rules that we easily obey. It is not because we are compelled to obey it but sometimes, we obey the law because we feel that it is a good law or that it is a sensible law. For example, it is reasonable for the company to demand that you report on time at exactly 8:00am.

And the fourth one is the Positivist Theory. At least in so far as conventions and treaties are concerned, states obey them because of consent. This is otherwise called the consent based theory. A contracting party to a treaty of course is bound to obey because it had already consented to the terms and conditions. Then we apply here what we have already learned about pacta sum servanda. You know that if you enter into a treaty, you are to obey and comply to the terms and conditions of the treaty in good faith because that is the consequence of entering into a treaty.

So practically, there are a lot of reasons why states obey PIL and we need to know why they do because we need to be satisfied by the use of the name law in PIL to the extent that it may be binding under these theories, then we can call PIL a law.

And these are some of forms of peaceful enforcement. Why highlight on peaceful? Because if it is through the use of force, no less that the UN charter prohibits the use of force. So when we talk of enforcement, we have to talk of peaceful enforcement of PILVoluntary compliance, public opinion, self-help and treaty based enforcement as in the case of WTO.

Have you read the case of Nicaragua vs. USA. This is one case that you should not miss because there is a very good discussion there about customary international law.

You will notice that this problem necessitated the application and understanding of customary international law. The United States in this case argued that it made reservation in the UN charter that if what is to be applied is a multilateral treaty, then it is required that there should be a consent on the part of the USA before that multilateral treaty (the UN charter itself) may be made applicable only if the USA consents. There was an issue on whether or not the application of certain norms would have to be dependent on treaty or treaties. If we are to talk about the principle non-intervention which is another principle in PIL, is it dependent on treaty such that if the ICJ is to rule that the UN charter is not applicable or enforceable to the US because it made a reservation By the way, when states enter into multilateral treaties or conventions, chances are some member states are compelled to make certain reservations on certain provisions. You cannot expect all states to agree on all terms of the convention. A state that doesnt agree on a particular term can make a reservation. We will study later on how reservation should be done. In which case, the contracting party making a reservation becomes in fact a party to the convention but the moment that particular provision is applied by the member states it is not bound to comply with that particular provision because it has lawfully made a reservation.

This is what actually happened in here in the case of Nicaragua vs. USA. The US made a reservation as to the application of the UN charter in so far as application of it being a multilateral treaty. This is just a sort of introduction to my next topicSources of PIL.

When we speak of sources, we may refer to what we call the Formal Sources of PIL or the Legal or what your textbook mentioned as Material Source of PIL. Can you distinguish one from the other? What is Formal Source of PIL and what is Material Source of PIL?

When you say Formal, it is how international law is created or established. It is the method by which the law comes into being. So when we say formal source in regard to customary international law, then we can say: The mentioned in which Customary International Law is created is state practice.

When we speak of Material, what do we mean by that? So for example when we say, the way a particular international norm is created is through the practice but where do we see the substantive law? Probably in the decision of a Supreme Court of a particular state. In the Paquette Habana Case for example, Official Declarations of Officials of State. So we are looking at where they are found, when we talk of Legal or Material Source of PIL. So you have to be careful of the use of the term source because when you say source, you may actually be referring to the way it is formed or where it can be found. So when you say: How it is established, created, formed, you are talking about formal source. And when you say legal or material, then it is where it can be found.

Now, let us talk about the first source.

You go to Article 38 Par 1 of the Statute of the ICJ, you will notice that the statute of the ICJ classifies these sources into Primary and Subsidiary.

My next question is: Is there a hierarchy among the Sources of PIL? Since the statute mentions of conventions, does it prevail over international customs?

While there is no some sort of hierarchy between them, one stands out as a set of norms that will be considered as higher than any other international law. This is what we mentioned as Jus Cogens. This is a valid observation.

Historically, when the ICJ statute with reference to Article 38 Par 1 was formulated, there had been suggestions to come up with a hierarchy but the member states were not able to do so. But they agreed only on two kinds. The Primary and the Subsidiary.

In the Preparatory Works, which play a vital role in the way we interpret conventions and treaties. By analogy, we recall what we learned in statutory construction. In the way we interpret treaties and conventions, we also make use of the Preparatory Works that led to the treaty stipulation itself.

The ICJ statute uses the term convention but this of course includes treaties. In PIL, the terms agreement, pact, charter, statute, covenant, treaty, convention, they do not matter at all. There is no specific and peculiar treatment different from the others the moment a term is used in one agreement and a different term is used in another agreement. Unlike in the Philippine Practice, we do make a distinction between treaties and international agreements. And what is the relevance of distinguishing international agreements from treaties? It is the requirement of concurrence by the Senate will be applicable only if what is entered into by our executive department partakes the nature of treaty. So that if it is not a treaty based on our evaluation or judgment, and may only amount into an international agreement under our standards, domestically we do not require the concurrence of the Senate. So if it is an international agreement, then the signature of the President is all that is required. But if it is a treaty, then we need the concurrence of the Senate before it can be considered binding in out jurisdiction. So domestically, we find relevance to that distinction. But not in PIL.

After treaties or conventions, we go to Customs.

In Article 38.1 of the ICJ Statute, it is described as a custom as evidence of the general practice accepted as law. Then the Restatement of the US Document on Foreign Relations Law, Section 102 defines the term Customary International Law results from a general and consistent practice of states followed by them from a sense of legal obligations. There is practically no difference between both.

Even the US recognizes that these are the elements of Customary International law. [refer above]

So you have the objective element and the subjective element.

Why is it called the Objective Element? Objective because it is factual. You will see whether or not a particular norm is being practiced by states. And where do we see that? How do we know whether a particular norm had been practiced by states? Are there ways to determine how?

Let me go straight to the case of Nicaragua vs. USA. There was a contention on the part of Nicaragua that the United States violated the Principle of Non-intervention when it aided the so-called Contras who were then trying to overthrow the newly installed left-wing government of the Sandinista. And so there was an intervention according to Nicaragua and this intervention violated customary international law. But the US said this principle of Non-intervention that you are talking about is only based on the provision of the UN charter which we have made a reservation that this is not applicable to us. And so the ICJ was confronted with the question of Whether or not customary international should be dependent or independent of treaty. And of course, I think you have encountered from your readings that the ICJ said No, customary international law is not dependent on any treaty. In fact, it can co-exist with any treaty stipulation. And so, when the ICJ said that somehow the reservation is applicable to the USA. And so, we have to rule WON the principle of Non-intervention and other principles such as the prohibition against the use of force, are independent of the UN charter because if they are independent of the UN charter, then that argument of the USA becomes immaterial. With or without application of the UN charter, customary international law can be applied. And so the ICJ went into visiting practices of the USA itself, WON it even adhered to the principle of Non-intervention, the principle on the Prohibition on the Use of Force.

The ICJ did as that. The ICJ found out that there was in fact a State Practice on the principle of non-intervention, use of force, respecting sovereignty of other states, etc.

What is the meaning of General Practice? This is the perspective of the ICJ: If some states do not follow the norm, that should not be treated as an obstacle to that norm becoming a customary international law. If it is not an obstacle, so how do we treat that? The non-practice may be considered violation or breach of the norm. That is the better view: to call it a breach of that norm.

What is the requirement of General Practice as an Objective Element?

What do we mean by uniform and consistent practice? When we say consistent, can it be determined in a short period of time? Because it is hard to tell that it has been consistently practiced by states when the norm had been there by just 5 years. Is there such a thing as an Instant Customary Law? What did the ICJ say in the North Sea Continental Shelf Cases (Norway vs. Denmark and Germany vs. Netherlands)? The case mentioned of a possible Instant Customary International Law.

Very briefly, we have the Federal republic of Germany on one hand and Denmark on the Other and Netherlands on the other. There was an issue as to the extent of the Continental Shelf. What is a continental shelf? It is the extended territorial mass of a particular state. Of course, the landmass, when it goes down towards the sea naa pa nai nahabilin nga extended foot sa continent. Below is a basic illustration of a Continental Shelf:

Before the 1982 UN Convention on the Laws of the Sea (UNCLOS), there had been several issues as to how the continental shelf should be computed. And one of the states which was heavily involved in the controversy were these states of Germany, Denmark and Netherlands. Apparently, there was this convention in 1958 that dealt with continental shelf. And what was the substance of that convention that dealt with the continental shelf? How was the continental shelf supposed to be divided if for example you have two states that are very close to each other and we cannot with precision determine the extent of the continental shelf of one state? The 1958 Convention provided for the Equidistant Principle. And the main objection to the 1958 Convention on the Continental Shelf is that it had been there for a period of just 5 years. So how can you invoke a provision in that convention (because at that time it did not take effect yet). They said simply that the convention may not have been effective yet but it consisted of customary international norm. And therefore, pursuant to the Nicaragua Case, it should be independent of any treaty. And so on the question of WON it is possible to have an instant customary norm, what did the ICJ say about it? The ICJ said that it may be possible to have an instant customary international law. But under what condition?

You will notice here class that when we talk of general practice, we are talking of practice of states. When we talk about opinio juirs, then we are talking about (because it is subjective) how it is perceived by states. All these elements necessarily require state participation. That is why it may be said that only states make customary international law. Because you require state practice, you require opinio juris and these are matters which only states can provide. And customary international law therefore is a result of state practice and therefore it is a creation of states.

Take note also that customary international law evolves. This is the beauty here. It is evolving and therefore one customary international law may be superseded by another customary international law provided that the two elements are present. The new practice becomes the new customary international law. That is possible but hard to achieve.

Your classmate was right in saying that Jus Cogens is the highest form of customary international law. How is Jus Cogens defined? [refer to the definition above]

How do you test the validity of the terms and provisions of a treaty? Remember, there is no supreme law, there is no constitution from which we can base the validity or invalidity of a particular treaty, unlike in a domestic legal system. And so the states in coming up with one ground to invalidate a provision in the treaty is when that provision violates jus cogens.

Jus cogens is a peremptory norm, a non-derogable norm. The problem of course is how to identify norms that may have achieved the status of jus cogens norm. Probably, we can rely on state practice, we can rely on opinions of international tribunals. And so authors of PIL will all agree that these three for example are jus cogens norms: Genocide, Torture, Slavery.

So if you enter into a treaty that allows torture, it may be invalidated on the basis that it violated jus cogens norm. So that the legitimacy of torture may be questioned by the victim, even if it is so allowed under a treaty. It is non-derogable. By analogy, we can also apply this domestically. How do we determine the validity or invalidity of a constitutional provision when it is already the highest law? The Supreme Court said in the case of Planas, we may be able to do so if a constitutional provision violates jus cogens norm.

Considered the most important source of international legal obligations. It doesnt have to be universal. What is required is generality of the practice. There is wide acceptance of states involved in the activities.

Discussion:

Here, we have the basis characteristic of Customary International Law (CIL). Take note of the requirement of repeated state practice.

Cases on Custom as Sources of PIL

[Atty. Largo enumerated here the cases but you may just refer to your syllabus]

Discussions:

Let me talk about the Paquette Habana Case, and how it is related to customary international law?

This involves privately owned commercial vessels. These fishing vessels were under the Spanish Flagship and these were taken by US ships and deemed as prices of war. What happened back then was that there was a war between Spain and USA. The owners of the commercial fishing vessels should not be considered as prices of war because it has been a practice in customary international law that private commercial vessels are not to be considered as prizes of war. Was it shown that the USA had also agreed on that kind of norm that fishing vessels may not be considered as prizes of war and exempt from capture? The US Supreme Court said that even the USA had believed and in fact practiced such customary norm. The US Supreme Court went into mentioning various treaties entered into by the US that involved the recognition of exempting fishing vessels from capture as price of war.

Barcelona Traction case

Our main concern here is the propriety of Belggium as a State to represent the Belgian nationals stockholders of the company in asking for compensation. What was the pronouncement of the ICJ in this matter?

Classmate: The ICJ thought that initially the Belgian government has the legal standing in representing the case of the Belgian nationals because if they dont have the standing then it would be tantamount that claims are not taken but then in the second case which was decided on 1966, the ICJ reversed its previous ruling and held that Belgian Government had no legal standing and..1970? (sir clarified the year). In this case the ICJ said that ..diplomatic ... international law are continuously evolving and that municipal legal system must be applied. It was shown later that there is a firm distinction between a companys right and right of that of a stockholder. And in the international level, the State can seek redress for any injuries or damages obtained by the company in that said state, but then nowhere in international law that can be said that the state can represent the shareholders interest.

Sir: the reason why you were ask to read the Barcelona Traction case is to learn the possibility of applying a law that is neither customary nor conventional, correct? And in fact as you have learned last time, the reason, general principle of law are included as the third primary source of international law is because of the possibility that indeed, there may be a controversy where no customary international or conventional international law like a treaty law, may be applied to the case. And the difficulty here lies in the fact that, specially at the time the statute of ICJ was created or the ICJ was established through that statute, because only the ICJ which was accepted and recognized as an international tribunal. Okay? In the past there had been ad hoc tribunals but which were created only for a particular purpose. Notably for the prosecution of certain war crimes, rights against humanity, genocide and all those atrocities committed usually during the First World War and up to the Second World War. Because only very recently that we successfully after many attempts to create another permanent court in international criminal court or the ICC as created by the Rome Statute. Okay?

And so the thinking then was it would be hard for the ICJ to look into possible references from decisions of another international tribunal because there was no other international tribunal at that time. And so it is expected that the ICJ will have to look into principles of law that have been practiced by domestic courts. Okay? Mixed principles of law of course are generally practiced that why the are called general principles of law. But since their applications are domestic then they may not have attained the status of a customary international law. Principles such as what? Equity, prescription, estoppels, prior exhaustion of administrative remedies, sot those are examples of general principles of law.

Now, all these principles of law as you will observe are most likely applied in a domestic controversy, because seldom it is applied in an international controversy. Now, in this case of Barcelona Traction case, what principles of law were applied? Which is not customary nor conventional?

Classmate: in this case the ICJ applied the municipal law with regard the State in representing the Spain. Whose municipal law?(sir ask) Municipal law of Belgium sir. Of Belgium, or is it the municipal law of any state for that matter? If you are to talk about rules governing, who among you here studied corporation law? Nagjoke si sir..nangatawa ang klase. Katong nay background sa commercial law, are you familiar with what is called or termed as a derivative suit? Have you ever heard of derivative suit in corporation law? Who remembers? Who eats onions a lot?

Did I show this last time? And the pronouncement of the ICJ? The ICJ made mention of the need to apply municipal law. So in a derivative suit for example which I believe is a common practice among civilized states. Whether you are probably democratic state or non democratic for as long as there is commercial activity, for as long as there are corporation participating in commerce, I believe the concept of corporation is similar anywhere in the world. Maybe a being that youve create a new personality and so if there is an incorporation or creation of a new personality, can that personality may also have the characteristics or the treats of any person? This type of course as a juridical entity and therefore it can acquire assets. The properties of the corporation do not belong to the stockholders, do not belong to the officers, theyre owned by the corporation as an artificial being. I think you have that principle learned in other subjects without having studied corporation law. Yes? That the idea of distinct and separate personality , I believe is a general principle of law in any corporation practice, otherwise, usual distinction between a partnership and a corporation. And so if Barcelona Traction companies suffered losses as result of what was alleged to be unreasonable refusal on the part of Spain to credit its foreign currencies in the investment of sterling bonds. It was the company which actually suffered losses and of course eventually, that will have to cause the losses also to the stockholders. If that is the idea and if there are acts that are considered done against the company then it should be the company that has the personality to claim that suit.

Are wrong done to the company frequently cause prejudice to its shareholders but this did not imply that both were entitle to claim compensation. Whenever theres interest were harm not done to the company towards the company that has to look to institute appropriate action. This is actually derivative suit. This happen usually for example here, very common in family corporations. Some directors, stockholders, will go out of the country leaving for example the elder brother or sister as the president, the CEO and the COO at the same time of the company because there are no other siblings around. After five years, perhaps the company will now go bankrupt and so the other siblings will start to investigate what happen and when for example they realize that a lot of assets had been disposed of without the consent of the majority of the stockholders. Many operations had resulted to loses not to mention that perhaps the president may have misappropriated millions of company funds. If one stockholder may have the guts to sue the elder brother or sister in order to prevent further loses to the company then he may institute derivative suit in court. That derivative suit actually is filed for and in the name of the corporation and not by the stockholder in his personal capacity. You will learn that in your corporation law. Okay? So instead of saying, X as a stockholder against Y, president of ABC company, its going to be, ABC company represented by stockholder X against etc. as a derivative. That is the principle practiced in, I believe in most countries, especially in developed country. It was used by the ICJ because there is no available principle that will apply to the question of whether or not Belgium would have the personality to bring the suit for and in behalf of its nationals. But this is not to say that States cannot bring the suit for and in behalf of national because you have learned in espousal claims the State is the proper party. In cases where another State for example offends, violates the right of another citizen, of the citizen of that State rather then it may espouse a claim. But this is different story because it involves a company. What about this case of Southwest Africa? Let me just lead you right away to this principle on actio popularies. What is action popularies and what is the status of action popularies in international law?

My understanding of actio popularies is this is a question of the propriety or validity of filing a suit in international courts. Being a suit in international courts for and in behalf of the victims, when the one bringing the suit is not wanted. So what is actio popularies?

Classmate: actio popularies is that when a State represent a, like in the case of Southwest Africa wherein the Liberia and the Ethiopia. So this involves nominee states binding Liberia and Ethiopia? So what was the claim all about? They claim that Southwest Africa, they had the duty to promote the interest and wellbeing of the inhabitants. Ethiopia and Liberia said that southwest Africa, they did not comply with the requirement to enhance the wellbeing of the inhabitants.

And you mention of that its not recognize principle of law, so actio popularies is a municipal law, its a local law actually, that has not yet ripen into a general principle of law as source of international law. So let me go straight to the case of Netherlands vs. Belgium. Once again the, this time around the PCIJ, because this is an earlier case, so before the ICJ, we have the PCIJ under the League of Nations, the same principle was declared that the statute or the charter directs the application of the general principles of law recognized by the civilized nations. I want to know what general principle was applied in this case.

(Classmate answered) The general principle that was applied in that case is the principle of equity. The principle of equity is a broad principle and there could be so many specific principles that are basically principles of equity. So in this case what is the specific and particular principle of equity that was applied? Im sure this principle, you had already learnt in your civil law. It is recognized as one of the principle involving estoppels. What about those who come to court must bring a rubbing alcohol.

So the complainant here is Netherlands because what did Belgium do that impelled Netherlands to bring the suit? It is about a canal. A canal by the way class is not the canal we see here. We never you heard about canal rest assured that is not the kind of canal that we see in Colon. Any man-made river is a canal, ok? If its a man-made river, its a canal. And so what happened to the creation of a canal? What did it cause Netherlands? What was the effect of building a canal by Belgium? Belgium had a defense that Netherlands cannot complain because some time earlier, before the filing of the case Netherlands had also did something similar to what Belgium did. Also in violation of the Treaty. And so resolving on the propriety of bringing a suit by one who is also equally guilty, the CIJ or the ICJ rather applied that general principle of law. That if you are equally guilty because you have also performed more or less similar violation complained of by the other party then you are not a party who come to court with clean hands. So another principle that is not of international law origin but practiced by municipal courts. But then again, for lack of principle in international law then the International Tribunal applied general principle of law.

So lets go back to the sources of public international law. In the context of course of ICJ resolving the controversy, the following are the sources as you already learned. 1.) international conventions 2.) international custom 3.) general principles of law.

For international conventions, this concept includes treaty. International conventions or treaties are sources of international law of course only in so far as the parties are concerned. Is it possible for a non-party to be bound by the norms in the convention? If the norm is originally a customary international norm then the non-party may still be bound not by the treaty norm but by the customary international norm. Although there had been so many conventions and therefore treaty norms that have incorporated and transformed customary international norms, always remember your case of Nicaragua vs. US that the same customary international norms have not lost their applicability. They can therefore co-exist alongside treaty norms so that in the event and for whatever reason the treaty norm may not be applied the customary norm from which that treaty norm had been established may still be made applicable. That is why the most important area of the study of international law would have to be the study of all customary international law. That is why I invited you to read a book, we have a book there in the library just about customary international law. Unya na sir when I pass the subject and I will have the time I will read that. My concern now sir is to be able to learn as many principles as possible before going deeper into each one. Bitaw sad, sakto na.

International custom no. Remember always your elements, Objective element, the state practice and the subjective element of opinio juris. For the objective element of state practice, remember always that you have to look into the relevant state practice not just any practice but what is important is for you to look for the relevant state practice and the relevant state practice of course would be the practice of states involved in the activity regulated by the norm. but you dont necessarily determine or evaluate state practice of those states that are not involved in that activity governed by the norm but you have to look into the states that are affected by the practice. So if for example the practice is to exempt commercial vessels as subject of capture in times of war then it is relevant to look into the practice of those states engaged in war in the past. That is the relevant state practice. Then as for opinio juris its an additional element. Even if it is generally practiced by the states, if the practice is not by reason of the belief of the practicing state that the norm is a binding law then there is no opinio juris. So that is an important and in fact an indispensable element. And you need to know how to look into the proof of that opinio juris in the same manner that you also have to know how to look into state practice. I think I showed you the way to look for the state practice and to look for opinio juris. General assembly resolutions have been considered as perhaps the best manifestation of the belief of states to a particular norm whether it is a belief that the norm is a binding law or not. And in view of the possibility that controversy may not be actually covered by customary norm or by conventional or a treaty law, then there is a need for the ICJ to apply general principles of law which are normally municipal law practiced by civilized states and this is expected because the ICJ does not have the venue to look for possible sources other than conventions and customary international law. But you can include the practice of domestic courts of states. So these are the primary sources of international law.

If, after the attempt to look for customary, conventional and general principle of law, the IVJ cannot still resolve international controversy then it may resort to what we call the subsidiary means of looking for the sources of international law. It has been said however class that judicial decision and teachings of most highly qualified publicists are not in themselves the sources of the law. They are but the means and tools by which these sources of international law may be discovered. So you dont say for example that this is the norm because this is what Antonio Cassesi said because what Antonio Cassesi said, a well-known authority in international criminal law , may perhaps be based on state practice, observations, and other acts of the international players. So authors agree that the better approach is not to look at these decisions and teachings as the sources of the law themselves. Unlike international customs and international conventions where you can invoke a provision as the international law as between the parties in so far as the conventional law is concerned. You can say Ahh, that section 1 is our law because we are parties to the contract. But you cannot say that what Cassessi said is the law. What he said would only be based on international law as he observed it. You have to take note of that. That is why it has to be treated as subsidiary and by subsidiary we only refer to the tool by which you can discover and look for international law applicable to a case.

Question during class: Once the ICJ invokes the teaching of the highly qualified publicist Sir in its decisions, can we say that once the ICJ uses it and how it interprets it, it becomes an international law Sir?

Atty Daryl: No. because what the most highly qualified publicists, we have to use this term jud huh kai mao jud ni ang wording, what the most highly qualified publicists. The ICJ is not invoking, its like including what this most highly qualified publicist say not because what they say is the law but because they have observed that that is the law. Kakuha kas difference? So you cannot say that is the norm according to Cassesi but you can say that is the norm as observed, opined and evaluated by Cassesi. Because its hard to imagine that a person is the source of international law. To put it differently ba.

It has been said and it has been asked in the bar exam many times that the principle of stare decisis is not observed in ICJ decisions. First lets take a look at the legal basis for that. Is that true? Sir, you said it already. Ahh, ok but what is the basis for that? By the way what is your understanding of stare decisis?

To be accurate at least in so far as the Philippines is concerned when we say decisions forming part of the judicial system we of course refer to the decisions of the Supreme Court. So decisions of Court of Appeals and trial courts even after they have become final and executor will not form as part of the law of the land. But forming part of the law of the land is not the idea of stare decisis. Just so I can make that clarification, when we talk about forming part of the land we are only talking about Supreme Court decisions. But is stare decisis? Maayo pa lgi ug nag assign ko ug case ana. If in one case we have a controversy and we brought that case to SC for example and on the process of resolving that conflict the court made a pronouncement about our relationship whether we are partners or not in a business etc. And it so happened that a case involving different issue but more or less the same facts but different issue, ok. Then what the SC said about our relationship, lets say SC said that we are partners in the business so I dont owe you money because we are partners. So in another controversy, that pronouncement by the court that we are partners will have to be considered as the law of the case between us. That is the law of the case.

So stare decisis would have to mean what? (Naay nianswer ani pero di maklaro ang voice.. () I should rather say the similar facts, similar issues, should be similar issues as well but involving similar parties. Thats when our SC will say that the case before us is not novel. Diba usually ing ana. In the year 1980 in the case of blah blah blah blah bah we have ruled that blah blah blah so on and so forth. In this case, the cases of blah blah blah in 1980 and the doctrines proclaimed or pronounced therein are squarely applicable to the case. There is no reason for us to depart from this ruling. In fact we warned counsels for the petitioners not to be hard-headed and do research before filing a case in court. Stare decisis noh. Thats basically a common law concept but practiced in a civil law country as well. Although at the end of the day its not, what you called this, a super hard law that the court will always be bound by its earlier decision. In any case, the court may perhaps depart from an earlier ruling for a good cause or for a good reason. Let us not of course mention the possibility of graft and corruption but just for good reason. Probably the same case, the same facts, the same issues but with little difference in some aspects and probably because of a development at present, di ba. Pwede man na nga modepart because of that. Lahi to ang thinking sauna because then we look at the state as more of really respecting Laissez Faire and so the state was acting as referee in the international market for example or economic forces rather. But now things have changed. In the 1987 constitution we look at the state for example as more of parens patriae so may development na. So they may perhaps begin from that.

In ICJ decisions, theres no such thing as stare decisis. What is the legal basis? Is there anything in the statute of the ICJ that supports the principle that stare decisis is not observed? Thats practically my question. (read Article 59) see? Only with respect to the parties and only in a particular case. So even if two cases have practically the same issue, the ICJ is not bound. But in practice though, the ICJ cannot help but invoke, well not really invoke but perhaps apply and mention to support its ruling in a particular controversy. It shouldnt be invoking otherwise the stare decisis is being practiced. Its like the ICJ notes that in the earlier cases of..the ICJ has pointed out this and that... In this case, practically stare decisis but it shouldnt be construed as the ICJ deciding a particular case because it is bound to decide the case in the same way it resolved the controversy in the past. But the reality of course is that the ICJ cannot help but mention earlier rulings of the ICJ.

Another observation that we should take note is the ICJ decisions are independent of judicial decisions of international court tribunals such as the ICC. Remember that there is no formal relationship between these tribunals. These are practically different and independent tribunals. But then again reality as observed finds that the ICC for example finds it relevant to talk about ICJ decisions especially in the case of Nicaragua vs. USA which had been invoked in ad hoc tribunals that have jurisdictions similar to ICC. in the pas we have International Criminal Tribunal for Yugoslavia, ICT for Roanda, all these ad hoc international tribunals mentioned of self-defense, principle of intervention. All these taken from Nicaragua vs. USA ICJ decision sya but these ad hoc tribunals have been applying it. Thats the reality. Theoretically of course you do not have any formal relationship. And why should one international tribunal for example mention a ruling of another international tribunal? May be this is perceived as an international tribunal mentioning a principle in a decision by another tribunal because this may perhaps be an evidence of opinio juris, an evidence of state practice. And so they can use that, an evidence of state practice or evidence of opinio juris. Thats why let me just share this with you. I found this statement of Justice Cardozo (dili ko sure ani,pakicheck nalang () of the US Supreme Court in New Jersey vs Delaware. And this is of course I think a very good observation talking about the nature of judicial decisions in international law. If you are familiar with common law practice, that is basically the nature of the decision of the ICJ. Diba in common law, in England for example, ang tawag nato sa mga law nila dili man civil law so walay statute nga nagprovide kung unsa particular law for a particular controversy. But of their cases have been resolved by their courts on the basis of this peculiarity of the facts between the parties involved.

Many of the cases have been resolved by their courts on the basis of these peculiarities of the facts between the parties involved. And so, in fact, a case may be decided differently in another case involving different parties. Thats why it has been said that this law in England may considered judge-made law, kinsay nag himo sa law? Ni evolve lang from their decisions. Havent you noticed that in common law countries even in the US, partly civil law common law, but of common law tradition, they are fond of experimenting on legal principle, they want to test case before the Supreme Court, kita dili man ta, well settled na na, we cannot change the thinking of the Court. Ex. Suing Mac Donalds as the culprit for obesity among the youth. But that is good. They want to know the law but are also conscious on how to develop the law.

Justice Cardozos quote:

There are other possible sources, what are these?

Babasanta:.......soft law

What is a soft law as distinguished from a hard law?

has no binding effect to the parties, they have yet to decide if they are to be bound by it

Largo: maybe they are not bound by it because they have not yet reached the stage of the treaty may already be binding, ?

Yes sir,

You are agreeing with me? What is legally binding? A treaty may be a hard law or a soft law?

a hard law sir

inani na lang, What is an example of a soft law?

General principles of law?

General Principles of law are other sources of international law. And in your outline its called other sources meaning not forming part, except with equity which may still be argued as still forming part of general principles of law. Can you give an actual example?

Declaration, 1982, where it specifically states that it is a non-legally binding....

International environmental Law, class, is a new field of Public International law. Because it is just recently that states began to be concerned about global warming, in the past we didnt have that concern, so environmental principles have not been considered customary international law. States have just started to act together in a treaty, or convention, or any informal organization, usually in what we call, IGO, Inter-governmental Organizations. So states, come together, meet, come up with mutual understanding in certain areas and concerns, and mostly environmental concerns, ex. Stockholm convention.

A good example of a soft law is a UN declaration. Universal Declaration of Human Rights. While these declarations are indeed principles of law, yet states are not bound by the declaration, meaning they are not, if they do not obey, cannot make that as a basis for liability. These are declarations only of certain norms, for states to follow, how? To enact legislations at the domestic level. Thus if it states that you should not discriminate by reason of gender, if the Philippines fails to pass legislation that prevents discrimination on the basis of gender, or failing to legalize same-sex marriage, there is no liability there. What you can do perhaps, is to lobby. That is soft law.

Ang binding law ra gyud, katong sa sources. In fact, some authors say, ang true hard law, CIL, Conventional law, mao gyud na ang hard law, since its legally binding, non-observance of which has legal consequences. Soft law, pub opinion ra man na. Most of the time, you can invoke sovereignty, but it will just be public opinion or just possible in your economic relationship,. Like perhaps the suggestion in the UN declaration, there is a suggestion to adopt a democratic society, to protect freedom of expression. As a sovereign state, we can have a communist state. Liable diay ko for choosing a communist state? Dili diba. That explains why these norms could hardly pass the test of Customary International Law because of legitimate invocation of sovereignty among states. Mostly environmental law principles.

Equity is another.

What is this ex aquo et bono?

according to what is right or good

What is the rule here? When is it applicable to a controversy?

Art 38 (2) of the ICJ Statute: this provision shall not prejudice the power...........

What is the important condition? Justice, equity, dili na sila primary sources, daghan man na equity principles, estoppel, even prescription. If possible, the general concept of fairness will be applied, is it possible that the ICJ will apply that? Yes, provided?

If the parties agree. What is the paramount consideration, consent of the state? Why? Because we talk of sovereign states.

So it may be possible in which equity may be allowed to override other rules, provided that the parties agree.

What is the distinction between custom and usage?

...........

Custom is International law. Usage is just a practice, but without opinion juris. Custom is with opinion juris, usage is without opinion juris. But both are usage.

One more consideration, whether or not there is hierarchy in the sources of international law. That was previously the intention, as shown in the preparatory work of the International Law Commission, but ended up to dividing the sources to primary and secondary. While there is no hierarchy among sources, there is a consensus among states, that of these sources, jus cogens should be considered as always superior to other norms.

So how do you solve a problem where a Customary International Law runs in conflict with another CIL, it seems that a new international law had been developed to replace an old one. Akehurst mentions of the usual principle lex posterior derogate priori, lex speciali derogat legi generali, basic principles in statutory construction, a later general law cannot supercede an earlier special law. But these are just opinions, only guidlenes, not rules.

What is Jus Cogens, and where do we find this?

article 53: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.What is Erga Omnes Norm

somehow related to jus cogens but specifically pertains to a specific act of a state should do to perform

It is more of a duty towards the international community, while jus cogens are peremptory norms, derogation of which is not permitted, so it is a non-derogable. But if we talk of erga omnes norm, it is more of a duty towards the international community.

If we talk of the obligation to punish international crimes, that is erga omnes norm. That these crimes are punishable, is jus cogens. Genocide is punishable, that is jus cogens. You cannot put in the Consti or Treaty, that you allow genocide in certain cases, since genocide is jus cogens. Duty to punish genocide is erga omnes. Duty to respect the right to self determation, is erga omnes. Thus if it is happens that in your jurisdiction, there is a well-defined minority, you should pass a law that respects that minority, their culture. That is erga mones. But that the right to self determination is worthy of respect, observance, is jus cogens. The right to self-determination is jus cogens.

In the Philippines, how do we treat international law? Are they legally binding norms? Or applicable in ceratin cases?

our country sir, as stated in the constitution, that generally accepted principles of international law form part of the law of the land

So, what does these GAPIL generally refer? Refers to what? Are we talking about Customary International law, conventions?

i believe that it does not distinguish on what type of international law, it forms part of the law of the land as long as they are generally accepted

What about treaties, how do we make treaties part of the law of the land, if they are not part of international law?

as long as the Philippines is a signatory, and ratifies the treaty,

Then it becomes part of the law of the land?I believe you have studied this in Consti 1, the doctrine of incorporation and the doctrine of transformation.

Art II, is perceived as the incorporation clause. Do we transform or just incorporate them.

we incorporate them. If it is not a GAPIL, ex. a treaty, the congress has to pass a law.....

What are automatically incorporated are GAPIL,

I believe you have studied this in your Consti 1, the Doctrine of Incorporation and the Doctrine of Transformation. I understand Section 2, Article II of the 1987 Constitution is perceived as the Incorporation clause. Do we transform international law or we just incorporate them pursuant to Section 2, Article II of the 1987 Constitution?

You know what are incorporated automatically are of course generally accepted principles of international law. If the principle of law is not a generally accepted principle of international law then in what way may be it incorporated as part of the law of the land. Well its not by incorporation because our incorporation clause only says generally accepted principles of international law. That principle of law however may still be part of law of the land if we transform them.

And by adopting incorporation clause, incorporation theory rather, it doesnt mean that we do away with transformation. We have in fact transform international law or any norm for that matter as part of the law of the land. If not by incorporation it could be by transformation. And it can be done by simply passing a statute covering the same subject matter or as evidenced by the fact that treaties when concurred by the Senate will make the Philippines binding or bound rather by the terms and conditions of the treaty. And so if that treaty had been affirmed rather concurred in by ratifying by the Senate to the extent that we are already bound by the terms and conditions of the treaty then that principle of law have been transformed. So transformation of international law that perhaps does not partake of a generally accepted principle of international law but its really controversial because were not using customary international law. Were not using principles of public international law; we simply say generally accepted principles of international law as forming part of the law of the land.

Kuroda vs. Jalandoni

We had as early as 1935, 1973 and 1987 Constitution adopted generally accepted principles as part of the law of the land. So it is immaterial whether the Philippines was a signatory to the Hague Convention because the Convention anyway covered customary international law of making liable those persons whether military or civilian whove been guilty of planning and preparing or waging war convention and of commission of crimes, that they are to be held liable or accountable therefore.

The rules and regulations of The Hague and the Geneva Convention form part of and are only based on generally accepted principles of international law.

All right, so lets take a look at some cases, domestic ones, just to see how our Philippine Supreme Court used international law with respect to the sources of public international law. So you take out of course this provision which you have already studied since first year, even in your college years. You have the provision in Section 2, Article 2, which says that the Philippines renounces war as an instrument of national policy. But lets talk about this next phrase which follows: adopts the generally accepted principles of international law as part of the law of the land. So, this is what we have already called the incorporation clause, as opposed to what we call the doctrine of transformation.

Incorporation clause

So what is the significance of an incorporation clause in the Constitution? Well it simply means that Generally Accepted Principles of International Law (GAPIL) law form part of the law of the land automatically, and without need of an affirmative act of the government. Is that necessary? Not necessarily in the case of customary international law because once an international law has attained the status of a customary international law by being a member of the family of nations, we are bound to observe any customary law, with or without domestic laws, but note that our Constitution does not use the word customary international law. It simply says GAPIL meaning, to the extent that a principle of international law may not have attained a status of customary international law, it may still form part of the law of the land because of the incorporation clause. But when the norm is settled as a customary international law, you dont need an incorporation clause. That is of course from the perspective of international law.

On the perspective of our local courts, then the effect of the incorporation clause, or the importance of the incorporation clause, is that it allows the courts to apply GAPIL law because no less than the Constitution itself acknowledges that GAPIL automatically form part of the law of the land. Thats the trouble with studying international law because you have to be conscious about your perspective. If your perspective is that of the Supreme Court, its a bit different from the perspective of an international tribunal.

TransformationWhat about Transformation? There are two ways of making, or adopting international law as part of domestic law. One is by incorporation, or when it would not require a positive act on the part of the government in order to have the international law part of the domestic law; the other kind of making international law part of domestic law is by transformation. From the word itself, you transform an international law into a domestic law. If the question is, which one is being observed by the Philippines, it would be wiser if you answered both, because transformation is an option, while incorporation is there already. There is already a declaration by our Constitution of the incorporation of the GAPIL. But is it possible to transform an international law as part of the law of the land? Well, for GAPIL, you dont need transformation because its already deemed incorporated, but if the principle of international law does not have the status of a GAPIL, may it be considered part of a domestic law? The answer is yes, by transformation, and transformation is an option, or a prerogative of the state. How is transformation done? Because we transform, it would seem that we need for a positive or an affirmative act on the part of the government. Which agency of the government may transform international law into domestic law?

Ralph answers: Legislative branch of government.

Sir: How? It can be done directly by Congress of course, by passing a law, just like what we did in our Rome Statute, the International Criminal Court. If you look at the Rome Statute, it had been copied in toto by Congress just to show that we are implementing our commitment to the Rome Statute. So the definition of genocide, the crime against humanity, war crimes, they have been copied in toto, so assume for example that those definitions do not partake of customary international law, or do not partake of a GAPIL, but just the same, these have been transformed by the direct act of Congress, or by passing a law.

TreatySecond, you know that a treaty is a source of international law, as far as the contracting parties are concerned. You have also learned that the substance of a treaty may or may not partake of the nature of customary international law. In many cases, treaty provisions are codifications of customary international law but what if the substance of a particular treaty does not partake of the nature of customary international law or a GAPIL? May it be transformed into our domestic law? Of course you know the answer to that is yes, when the Senate concurs in the ratification of that treaty entered into by our executive department. So that is one way of making an international law part of our law, or being transformed into our domestic law via the treaty-making process. Thats why it has been said that this could possibly be the backdoor to the incorporation clause, or those norms that do not partake of the nature of a GAPIL, because these practices can still be considered part of our domestic law via transformation and via the treaty-making process -- but indirect in a way. In contrast, passing a domestic law is a direct way of transforming international law.

Case: Kuroda vs JalandoniSo, what did the SC say in Kuroda vs Jalandoni? Kuroda was prosecuted after the Philippines created a War Commission through the issuance of EO 68. The prosecution is for alleged acts of atrocities committed by Kuroda by participating in the planning, the preparation, and the waging of war and aggression and the commission of offenses considered violations of international laws and the customs of war. This involved torture, rape, acts on civilians and other acts of atrocities considered by customary international law as punishable. The argument of Kuroda was that the Philippines cannot invoke that because it seems that the Philippines based its authority to prosecute him from the provisions of the Hague Convention. Its a good argument because the Philippines was not a party to the Convention, so how can a state invoke a provision of a Convention to which it is not a party? Basic is the rule that if you are not part of a Convention, then you are not bound by the basic provisions of that Convention. And if you are not bound, then you cannot avail of the provisions. But Kuroda forgot of course that, as I mentioned earlier, conventions and treaties may partake of the nature of customary international law or not. It so happened that the prosecution of war crimes is a customary international law, and therefore with or without the Hague Convention, the provisions that are there, which are of customary international norm, may still be invoked by the Philippines. The SC noticed that even Japan is a party to the Hague Convention.

Case: USA vs GuintoIn USA vs Guinto, you have the Court saying that certain principles may be applied by the SC when they partake of the nature of customary international law. There are two justifications: one, because of the incorporation clause, and second, even in the absence of an incorporation clause, it is customary international law, and being a member of the family of nations, we are bound to observe customary international law. And what custom