PUBLIC INTERNATIONAL LAW NOTES (SOURCE: BERNAS) LANDAS, M.B.

THE NATURE OF INTERNATIONAL LAW • Generally discredited since international law is

not seen as commands but as principles for
free and orderly interaction
What Is international law?
(b) Consensual theory – international law derives its
• Body of rules and principles of action which are binding force from the consent of states
binding upon civilized states in their relations to one
another (traditional definition) • Treaties and voluntary adherence to common
practices are seen as expressions of consent,
• Today, sovereign states remain as principal however, there are binding rules which do not
subjects of international law, but now joined by derive from consent
international organizations and individuals, giving
way to this definition: (c) Natural theory – law is derived by reason from the
nature of man
Law which deals with the conduct of states and of
international organizations and with their relations • Application of natural reason to the nature of
inter se, as well as with some of their relations with the state-person
persons, whether natural or juridical (Restatement
of Foreign Relations Law of the US) • Most customary law and generally accepted
principles of law are expression of what
Scope of international law traditionally was called natural law
The expansion of the scope is revolutionary, as affected by Note: In the ultimate analysis, however, the best answer is
various factors such as rapid changes in technology; pragmatic. Fundamentally, there is a general respect for
multiplication of the number of states with differing law and also there is concern about the consequences of
backgrounds and achieving loose forms of cooperation; defiance either to oneself or to the larger society.
fear of war; rising demands for social reform. International law is law because it is seen as such by states
and other subjects of international law.
Topics covered: (Re-Di-Pro-Ma-Re)
Public and private international law
(a) Regulation of space expeditions
(b) Division of the ocean floor Public international law – governs relationships between
(c) Protection of human rights and among states and also their relations with international
(d) Management of the international financial system organizations and individual persons
(e) Regulation of the environment
Private international law – domestic law which deals with
Is international law a law? cases where foreign law intrudes in the domestic sphere
where there are questions of the applicability of foreign law
The basic challenge to international law as law is the claim or the role of foreign courts
that there can be no law binding sovereign states. There
exists no international legislative body (GA-UN resolutions Brief historical development of international law
generally not binding) nor international executive (Security
Council is often restricted by the veto power, nor a central From ancient law to the League of Nations
authority that can make judgments binding on states (states
are bound only when they consent the same). • Ancient international law governed exchange of
diplomatic emissaries, peace treaties, etc. Jus
These objections are based on an exaggerated notion of gentium, seen as a law “common to all men,”
sovereignty as embodying an individualist regime. became the law of the vast Roman empire
However, the reality is social interdependence and the
predominance of the general interest. There is general
• Modern international law began with the birth of
respect for law because of the possible consequences of
nation-states in the Medieval Age. Governing
defiance either to oneself or to the larger society.
principles were derived from Roman Law or Canon
Law.
Theories about international law

(a) Command theory – law consists of commands • Milestones: Peace of Westphalia (1618-1648)
originating from a sovereign and backed up by ending the 30 Years War; Congress of Vienna
threats of sanction if disobeyed (1815) ending the Napoleonic Wars; Covenant of
the League of Nations (1920) ending WWI, which
• Not law, it does not come from a command of consisted of 43 states
a sovereign; also treaties and customs
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From end of WWII to end of Cold War ART. 38, Statute of the International Court of
Justice.
The UN was formed in 1945, marking the shift of power
away from Europe and the beginning of a truly universal 1. The Court, whose function is to decide in
institution. From such bore 3 major groupings of states: accordance with international law such
disputes as are submitted to it, shall apply:
• Western states – in international legislation,
insisted on 2 points: (1) legal provisions must be (a) international conventions, whether general
clear and precise and (2) any substantive rule must or particular, establishing rules expressly
be accompanied by an implementation mechanism recognized by contesting states;
that can spot and correct violations (b) international custom, as evidence of a
general practice accepted as law;
• Socialist states – led by Soviet Union; sought to (c) the general principles of law recognized by
avert Western intrusion into domestic affairs while civilized nations;
maintaining good relations for the sake of (d) subject to the provisions of Article 59,
economic and commercial interchange judicial decisions and the teachings of the
most highly qualified publicists of the various
• Developing countries – formed the majority; nations, as subsidiary means for the
consisted mainly of former colonies determination of rules of law.

The end of the Cold War 2. This provision shall not prejudice the power
of the Court to decide ex aequo et bono, if
The dissolution of the Soviet Union resulted in the end of the parties agree thereto.
the Cold War with re-emergence of international relations
based on multiply sources of power and not mainly on
ideology. Restatement (Third) of Foreign Relations Law of
the US
At present, there is only one superpower – US, acting as
world policeman and global mediator. 1. A rule of international law is one that has
been accepted as such by the international
SOURCES OF INTERNATIONAL LAW community of states

(a) in the form of customary law;

What sources are (b) by international agreement; or
(c) by derivation from general principles
In the absence of a centralized legislative, executive and common to the major legal systems of the
judicial structure, there is no single body able to legislate world.
and there is no system of courts with compulsive power to
decide what the law is nor is there a centralized repository 2. Customary international law results from a
of international law. general and consistent practice of states
followed by them from a sense of legal
Classified into: obligation.
Formal sources – various processes by which rules come 3. International agreements create law for the
into existence (ex. legislation, treaty, judicial decision states parties thereto and may lead to the
making; practice of states) creation of customary international law
which such agreements are intended for
Material sources – referred to as ‘evidence’; concerned adherence by states generally and are in
with the substance and content of the obligation (state fact widely accepted.
practice, UN res, treaties, etc. insofar as they identify what
the obligations are. 4. General principles common to the major
legal systems, even if not incorporated or
Sources: (CTGJ) reflected in customary law or international
agreements, may be invoked as
(a) Custom supplementary rules of international law
(b) Treaties and other international agreements where appropriate.
(c) Generally recognized principles of law
(d) Judicial decisions and teachings of highly qualified
and recognized publicists

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Custom or customary law The Martens Clause (1899 Hague Peace Convention)
Custom – a general and consistent practice of states Until a more complete code of laws of war has been
followed by them from a sense of legal obligation issued, the High Contracting parties deem it expedient to
declare that, in cases not included in the Regulations
Elements: adopted by them, the inhabitants and belligerents remain
under the protection and the rule of the principles of the
(1) material (state practice) law of nations as they result from the usages established
(2) subjective factor (opinio juris) among civilized peoples, from the laws of humanity, and
the dictates of the public conscience.
(a) Material factor – the practice of states (usus);
basically, how states behave
• Also found in 1949 Vienna Convention and First
Elements: Additional Protocol of 1977

(i) Duration (diuturnitas) • Put the laws of humanity and the dictates of public
conscience on the same level as usages of states
Long – almost immemorial – even without practice or usus, there can emerge
a principle of law based on the same.
Short – does not exclude possibility of practice
maturing into custom provided other conditions Treaties
are satisfied
Treaties determine the rights and duties of states just as
(ii) Consistency – continuity and repetition individual rights are determined by contracts. Their binding
force comes from the voluntary decision of sovereign states
(iii) Generality of the practice of states – need to obligate themselves to a mode of behavior.
not be in absolute conformity, but must be
substantial Generally, it binds only the parties, however, the number of
contracting parties and generality of its acceptance can
Sample evidence: may be treaties, diplomatic have the same effect of creating a universal law.
correspondence, statements of national leaders
and political advisers, conduct of states Treaty v. custom

(b) Psychological or subjective factor – why they Normally, both can be complimentary in a way that treaties
behave the way they do can be indicative of adherence to practice as opinion juris.

Opinio juris (or opinio juris sive necessitatis), or In cases where a TREATY COMES LATER THAN A
the belief that a certain form of behavior is CUSTOM, the TREATY SHOULD PREVAIL because the
obligatory, is what makes practice an international former manifests (a) a deliberate choice of the parties and
rule. (b) the principle of pacta sunt servanda should be followed

• Dissenting states may be bound by custom, In cases where a LATER TREATY IS CONTRARY TO A
unless they had consistently objected to it CUSTOMARY RULE THAT HAS THE STATUS OF JUS
while the custom was merely in the process of COGENS, the CUSTOM WILL PREVAIL as provided for in
formation. This protects only the dissenter and Article 53 of the Vienna Convention on the law of Treaties:
does not apply to other states.
Article 53, Vienna Convention on Law of Treaties
• Subsequent contrary practice casts doubt as
on the alleged law on account of conflicting and A treaty is void if, at the time of its conclusion, it conflicts
discordant practice of states. If contrary with a peremptory norm of general international law. For
practice should gain general acceptance, it the purposes of the present Convention, a peremptory
might instead become the law. norm of general international law is a norm accepted
and recognized by the international community of States
Sample evidence: consent to UN resolutions (note: as a whole as a norm from which no derogation is
matter of proof burdened upon the state claiming) permitted and which can be modified only by a
subsequent norm of general international law having the
Instant custom same character.

It is not the product of constant and prolonged practice, In cases where CUSTOM DEVELOPS AFTER A TREATY,
rather, from a spontaneous activity of a great number of the rule is not clear. In practice, attempt is made to KEEP
states supporting a specific line of action. THE TREATY ALIVE BY EFFORTS AT RECONCILING A
TREATY WITH THE DEVELOPING CUSTOM.
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General principles of law recognized by civilized (e) Annual Publication of the Hague Academy of
nations International Law

This has reference not to principles of international law but Equity

to principals of municipal law common to the legal systems
of the world. ICJ has not been expressly authorized by its Statute to
apply equity as distinguished from law. However, the Court
They belong to no particular system of law but are evidence has some freedom to consider principles of equity as part
rather of the fundamental unity of law, which most, have of the international which it must apply. (equity has an
either become part of customary law or incorporated into established place in the legal system in many nations)
conventional international law.
Equity, when accepted, is an instrument whereby
Examples: conventional or customary law may be supplemented or
modified in order to achieve justice.
(a) Renunciation of war as an instrument of national
policy • Procedural aspect – a mandate given to a judge to
(b) Principle of sovereign immunity exercise discretion in order to achieve a
(c) A person’s right to life, liberty and due process determination that more equitable and fairer
(d) Pacta sunt servanda
Kinds:
Judicial decisions
(a) Intra legem (within the law) – adapted to the facts
As provided for in Article 38, such is the subsidiary means of the case
for the determination of the rules of law, subject to Article
59, which reads: (b) Praeter legem (beyond the law) – used to fill the
gaps within the law
ART. 59, Statute of the International Court of
Justice (c) Contra legem (against the law) – refusal to apply
the law which is seen as unjust
The decisions of the court have no binding force
except between the parties and in respect of that Other supplementary evidence
particular case.
UN Resolutions
Meaning, the decisions of the International Court of Such are considered merely recommendatory. But if they
Justice (ICJ) DO NOT constitute stare decisis. are supported by all the states, they are an expression of
opinio juris communis.
However, the decisions are regarded as highly persuasive
in international law circles and have contributed to the “Soft Law” or (Non-Treaty Agreements)
formulation of principles that have become international
law.
• May be international agreements not concluded
as treaties and therefore not covered by the
The teachings and highly qualified writers and
Vienna Convention on the Law of Treaties
‘publicists’
• May be administrative rules which guide the
The ICJ is generally reluctant to refer to writers, but they
practice of states in relation to international
are often taken into consideration. The extent to which they
organizations (in this case, may eventually ripen
are referred to depends on the tradition of the court or of
into customary law or formalized in treaties)
individual judges.

Publicists – institutions which write on international law; • States prefer such as a simpler and more flexible
generally government sponsored, hence, they bear a foundation for their future relations so as to exclude
potential for national bias the application of treaty or customary law on the
consequences of a breach of obligations
Examples:

(a) International Law Commission (UN)

(b) Institut de Droit International
(c) International Law Assoc. (multinational body)
(d) (Revised) Restatement of Foreign Relations Law of
the United States;

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 THE LAW OF TREATIES Function of Treaties

They are multi-functional – sources of international law;

Definition of Treaties charter of international organizations; used to transfer
territory, regulate commercial relations, settle disputes,
An international agreement concluded between States in protect human rights, guarantee investments, etc.
written form and governed by international law, whether
embodied in a single instrument or in two or more related (a) Multilateral treaties – open to all states, which
instruments and whatever its particular designation. (1969 create norms that are the basis for a general rule
Vienna Convention on the Law of Treaties) of law; either codification treaties, or law-making
treaties, or both
Vienna Convention on the Law of Treaties (VCLT)
(b) Treaties creating collaborative mechanism –
• Governs treaties between states may be universal or regional of scope; operate
through the organs of different states
• Entered into force in January 1980; adopted on
March 26, 1986 (c) Bilateral treaties – in the nature of contractual
agreements which create shared expectations (ex.
• Not retroactive in effect, but contains customary trade agreements); “contract treaties”
law precepts antedating 1969
Note: Number of contracting parties + generality of
• Applies to international agreements that satisfy the acceptance of specific rules = may create a universal law
above definition, specifically:
Making of Treaties
(1) It be in writing;
(2) Reflective of intention of parties to be bound; 1. Negotiation
(3) Governed by international law.
Either through foreign ministries (bilateral and multilateral)
Form of Treaties or through diplomatic conferences that run like a legislative
body (large multilateral treaties). Negotiators must possess
No particular form is prescribed. However, only written powers to negotiate.
agreements that are new, come under the provisions of the
Vienna Convention. Article 7. Full Powers
Qatar v. Bahrain: The Minutes referring to the consultation 1. A person is considered as representing a State for the
between the two states’ foreign ministers are commitments purpose of adopting or authenticating the text of a treaty
accepted by their governments and is considered an or for the purpose of expressing the consent of the State
international agreement. The exchange of letters to be bound by a treaty if:
reaffirming their obligations also constitute an international
agreement creating rights and obligations for the parties. (a) he produces appropriate full powers; or
(b) it appears from the practice of the States concerned
Norway v. Denmark: The declaration of the Norwegian or from other circumstances that their intention was
Minister (he told the Danish Minister that his government to consider that person as representing the State for
would not make any difficulty in the settlement of the issues such purposes and to dispense with full powers.
over the sovereignty in Eastern Greenland) is sufficient to
bind the Norwegian government. 2. In virtue of their functions and without having to produce
full powers, the following are considered as
Nuclear Test Cases: The unilateral declaration of France representing their State:
announcing it would conduct no further tests may create
legal obligations as (1) the commitment was very specific, (a) Heads of State, Heads of Government and Ministers
and there was (2) a clear intent to be bound. for Foreign Affairs, for the purpose of performing all
acts relating to the conclusion of a treaty;
European Union v. USA: The statements made by the US (b) heads of diplomatic missions, for the purpose of
(concerning Sec. 301-310 of the Trade Act of 1974) before adopting the text of a treaty between the accrediting
the Panel were a reflection of official US policy, intended to State and the State to which they are accredited;
express US understanding of its international obligations as (c) representatives accredited by States to an
incorporated in domestic US law. The statements did not international conference or to an international
represent a new US policy but the bringing of a pre-existing organization or one of its organs, for the purpose of
US policy made in a domestic setting into an international adopting the text of a treaty in that conference,
forum. organization or organ.

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 Article 8. Subsequent Confirmation of an Act Article 12. Expressed by Signature
Performed Without Authorization
1. The consent of a State to be bound by a treaty is
An act relating to the conclusion of a treaty performed by expressed by the signature of its representative when:
a person who cannot be considered under article 7 as
authorized to represent a State for that purpose is without (a) the treaty provides that signature shall have that
legal effect unless afterwards confirmed by that State. effect;
(b) it is otherwise established that the negotiating States
2. Authentication of Text were agreed that signature should have that effect;
or
Negotiations conclude with the signing of the document. (c) the intention of the State to give that effect to the
The signatures serve as authentication. signature appears from the full powers of its
representative or was expressed during the
negotiation.
Article 9. Adoption of the Text
2. For the purposes of paragraph 1:
1. The adoption of the text of a treaty takes place by the
consent of all the States participating in its drawing up
(a) the initialling of a text constitutes a signature of the
except as provided in paragraph 2.
treaty when it is established that the negotiating
States so agreed;
2. The adoption of the text of a treaty at an international
(b) the signature ad referendum of a treaty by a
conference takes place by the vote of two thirds of the
representative, if confirmed by his State, constitutes
States present and voting, unless by the same majority
a full signature of the treaty.
they shall decide to apply a different rule.

Article 13. Expressed by Exchange of Instruments

Article 10. Authentication of the Text
Constituting a Treaty
1. The text of a treaty is established as authentic and
The consent of States to be bound by a treaty constituted
definitive:
by instruments exchanged between them is expressed by
that exchange when:
(a) by such procedure as may be provided for in the text
or agreed upon by the States participating in its
(a) the instruments provide that their exchange shall
drawing up; or
have that effect; or
(b) failing such procedure, by the signature, signature
(b) it is otherwise established that those States were
ad referendum or initialling by the representatives of
agreed that the exchange of instruments should have
those States of the text of the treaty or of the Final
that effect.
Act of a conference incorporating the text.

3. Consent to be Bound Article 14. Expressed by Ratification, Acceptance or

Approval
The most important step is the consent to be bound. There
are various ways to express the same. 1. The consent of a State to be bound by a treaty is ex-
pressed by ratification when:
Note: If states consent to be bound by part or choose to
differ provisions, Article 17, VCLT provides that such is (a) the treaty provides for such consent to be expressed
effective only: by means of ratification;
(b) it is otherwise established that the negotiating States
(a) if the treaty so permits were agreed that ratification should be required;
(b) the other contracting parties so agree (c) the representative of the State has signed the treaty
(c) if it is made clear to which of the provisions the subject to ratification; or
consent relates (d) the intention of the State to sign the treaty subject to
ratification appears from the full powers of its
representative or was expressed during the
Article 11. Means of Expressing Consent to be
negotiation.
Bound by a Treaty
2. The consent of a State to be bound by a treaty is ex-
The consent of a State to be bound by a treaty may be
pressed by acceptance or approval under conditions
expressed by signature, exchange of instruments
similar to those which apply to ratification.
constituting a treaty, ratification, acceptance, approval or
accession, or by any other means if so agreed.

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Note: No treaty or international agreement shall be (c) in cases not failing under subparagraphs (a) and (b),
valid and effective unless concurred in by at least two- the reservation is incompatible with the object and
thirds of all the Members of the Senate. (Sec. 21, Art. purpose of the treaty.
VII, Consti)
Note: A state which has made and maintained a reservation
After ratification, Article 16, VCLT provides that for
which has been objected to by one or more parties to the
exchange (bilateral treaties) or deposit (case of multilateral Convention but not by others, can be regarded as a party
treaties) of ratification by: to the Convention if the reservation is compatible with the
object and purpose of the Convention (ICJ on Reservations
(a) their exchange between the contracting States; to the Genocide Convention) – reflected in (c)
(b) their deposit with the depositary; or
(c) their notification to the contracting States or to the Thus, it is possible for different legal relationships to arise
depositary, if so agreed. among parties to the same treaty.

The provision also applies to instruments of acceptance, Article 20. Acceptance of and Objection to
approval or accession. Reservations

Article 15. Expressed by Accession 1. A reservation expressly authorized by a treaty does not
require any subsequent acceptance by the other
The consent of a State to be bound by a treaty is ex- contracting States unless the treaty so provides.
pressed by accession when:
2. When it appears from the limited number of the
(a) the treaty provides that such consent may be negotiating States and the object and purpose of a
expressed by that State by means of accession; treaty that the application of the treaty in its entirety
(b) it is otherwise established that the negotiating States between all the parties is an essential condition of the
were agreed that such consent may be expressed by consent of each one to be bound by the treaty, a
that State by means of accession; or reservation requires acceptance by all the parties.
(c) all the parties have subsequently agreed that such
consent may be expressed by that State by means 3. When a treaty is a constituent instrument of an
of accession. international organization and unless it otherwise
provides, a reservation requires the acceptance of the
competent organ of that organization.
Note: Parties who did not participate in the initial negotiation
may express their consent via accession.
4. In cases not falling under the preceding paragraphs and
unless the treaty otherwise provides:
4. Reservations
(a) acceptance by another contracting State of a
A unilateral statement, however phrased or named, made
reservation constitutes the reserving State a party to
by a State, when signing, ratifying, accepting, approving or
the treaty in relation to that other State if or when the
acceding to a treaty, whereby it purports to exclude or to
treaty is in force for those States;
modify the legal effect of certain provisions of the treaty in
(b) an objection by another contracting State to a
their application to that State. (Art. 2, VCLT)
reservation does not preclude the entry into force of
the treaty as between the objecting and reserving
• Different from ‘interpretative declarations’ – not States unless a contrary intention is definitely
meant to be a derogation from the treaty but an expressed by the objecting State;
expression of how a state understands its adoption (c) an act expressing a State’s consent to be bound by
of the treaty. the treaty and containing a reservation is effective as
soon as at least one other contracting State has
• Meant only for multilateral treaties, since a accepted the reservation.
reservation by one party in a bilateral treaty means
rejection of the same and necessitates negotiation 5. For the purposes of paragraphs 2 and 4 and unless the
treaty otherwise provides, a reservation is considered
Article 19. Formulation of Reservations to have been accepted by a State if it shall have raised
no objection to the reservation by the end of a period of
A State may, when signing, ratifying, accepting, approving twelve months after it was notified of the reservation or
or acceding to a treaty, formulate a reservation unless: by the date on which it expressed its consent to be
bound by the treaty, whichever is later.
(a) the reservation is prohibited by the treaty;
(b) the treaty provides that only specified reservations,
which do not include the reservation in question, may
be made; or

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 Article 21. Legal Effects of Reservations and of Illustration: Philippines and the 1982 Convention of the
Objections to Reservations Law of the Sea – “Archipelagic Waters”

1. A reservation established with regard to another party The provision on “archipelagic waters” under the 1982
in accordance with articles 19, 20 and 23: UNCLOS conflict with the Philippines’ claim in Art. I of the
Constitution (“waters connecting the lands, irrespective of
(a) modifies for the reserving State in its relations with their breadth and dimension, are internal water”).
that other party the provisions of the treaty to which
the reservation relates to the extent of the Thus, upon ratification of the UNCLOS (Aug. 5, 1984), the
reservation; and Philippines made the following reservations:
(b) modifies those provisions to the same extent for that
other party in its relations with the reserving State. 1. The signing of the Convention by the Government
of the Republic of the Philippines shall not in any
2. The reservation does not modify the provisions of the manner impair or prejudice the sovereign rights
treaty for the other parties to the treaty inter se. of the Republic of the Philippines under and
arising from the Constitution of the Philippines;
3. When a State objecting to a reservation has not
opposed the entry into force of the treaty between itself 2. Such signing shall not in any manner affect the
and the reserving State, the provisions to which the sovereign rights of the Republic of the Philippines
reservation relates do not apply as between the two as successor to the United States of America,
States to the extent of the reservation. under and arising out of the Treaty of Paris
between Spain and the United States of America of
December 10, 1988, and the Treaty of Washington
Article 22. Withdrawal of Reservations and of between the United States of America and Great
Objections to Reservations Britain of January 2,1930;
1. Unless the treaty otherwise provides, a reservation may 3. Such signing shall not diminish or in any manner
be withdrawn at any time and the consent of a State affect the rights and obligations of the
which has accepted the reservation is not required for Contracting Parties under the Mutual Defense
its withdrawal. Treaty between the Philippines and the United
States of America of August 30, 1951, and its
2. Unless the treaty otherwise provides, an objection to a related interpretative instruments; nor those under
reservation may be withdrawn at any time. any pertinent bilateral or multilateral treaty or
agreement to which the Philippines is a party;
3. Unless the treaty otherwise provides, or it is otherwise
agreed:
4. The provisions of the Convention on archipelagic
passage through sea lanes do not nullify or
(a) the withdrawal of a reservation becomes operative in
impair the sovereignty of the Philippines as an
relation to another contracting State only when
archipelagic State over the sea lanes and do not
notice of it has been received by that State;
deprive it of authority to enact legislation to
(b) the withdrawal of an objection to a reservation
protect its sovereignty, independence, and
becomes operative only when notice of it has been
security;
received by the State which formulated the
reservation.
5. The concept of archipelagic waters is similar to
the concept of internal waters under the
Article 23. Procedure Regarding Reservations Constitution of the Philippines, and removes straits
connecting these waters with the economic zone or
1. A reservation, an express acceptance of a reservation high sea from the rights of foreign vessels to transit
and an objection to a reservation must be formulated in passage for international navigation
writing and communicated to the contracting States and
other States entitled to become parties to the treaty. The USSR filed a formal protest against the reservations.
However, the reservation was not necessary because the
2. If formulated when signing the treaty subject to new rule applies only to ‘areas which had not previously
ratification, acceptance or approval, a reservation must been considered as internal waters.’ The 1973 Constitution
be formally confirmed by the reserving State when pre-dates the 1982 Convention.
expressing its consent to be bound by the treaty. In
such a case the reservation shall be considered as
having been made on the date of its confirmation.
3. An express acceptance of, or an objection to, a
reservation made previously to confirmation of the
reservation does not itself require confirmation.

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Illustration: Reservation in Human Rights Treaties Application of Treaties

Because of the special characteristics of the Covenant as First fundamental rule: PACTA SUNT SERVANDA
a human rights treaty (not a web of inter-State exchanges
of mutual obligations, but concern the endowment of Article 26. Pacta Sunt Servanda
individual with rights), it is open to question what effect
objections have between States inter se. Every treaty in force is binding upon the parties to it and
must be performed by them in good faith.
However, an objection to a reservation made by States may
provide some guidance to the Committee in its
Second fundamental rule: CANNOT INVOKE INTERNAL
interpretation as to its compatibility with the object and
LAW AS JUSTIFICATION FOR VIOLATION OF TREATY
purpose of the Covenant.

5. Entry Into Force of Treaties Article 46. Provisions of Internal Law Regarding
Competence to Conclude Treaties
Treaties enter into force on the date agreed upon by the
parties. Where no date is indicated, the treaty enters into 1. A State may not invoke the fact that its consent to be
force once consent has been given. Multilateral treaties bound by a treaty has been expressed in violation of a
generally contain a provision which says how many states provision of its internal law regarding competence to
have to accept the treaty before it can come into force. conclude treaties as invalidating its consent unless that
violation was manifest and concerned a rule of its
internal law of fundamental importance.
Article 24. Entry Into Force
2. A violation is manifest if it would be objectively evident
1. A treaty enters into force in such manner and upon such
to any State conducting itself in the matter in
date as it may provide or as the negotiating States may
accordance with normal practice and in good faith.
agree.

2. Failing any such provision or agreement, a treaty enters Territorial scope: ENTIRE TERRITORY
into force as soon as consent to be bound by the treaty
has been established for all the negotiating States. Article 29. Territorial Scope of Treaties

3. When the consent of a State to be bound by a treaty is Unless a different intention appears from the treaty or is
established on a date after the treaty has come into otherwise established, a treaty is binding upon each party
force, the treaty enters into force for that State on that in respect of its entire territory.
date, unless the treaty otherwise provides.
Interpretation of Treaties
4. The provisions of a treaty regulating the authentication
of its text, the establishment of the consent of States to Article 31. General Rule of Interpretation
be bound by the treaty, the manner or date of its entry
into force, reservations, the functions of the depositary 1. A treaty shall be interpreted in good faith in accordance
and other matters arising necessarily before the entry with the ordinary meaning to be given to the terms of
into force of the treaty apply from the time of the the treaty in their context and in the light of its object and
adoption of its text. purpose.

Article 25. Provisional Application 2. The context for the purpose of the interpretation of a
treaty shall comprise, in addition to the text, including its
1. A treaty or a part of a treaty is applied provisionally preamble and annexes:
pending its entry into force if:
(a) any agreement relating to the treaty which was made
(a) the treaty itself so provides; or between all the parties in connection with the
(b) the negotiating States have in some other manner so conclusion of the treaty;
agreed. (b) any instrument which was made by one or more
parties in connection with the conclusion of the treaty
2. Unless the treaty otherwise provides or the negotiating and accepted by the other parties as an instrument
States have otherwise agreed, the provisional related to the treaty.
application of a treaty or a part of a treaty with respect
to a State shall be terminated if that State notifies the
other States between which the treaty is being applied
provisionally of its intention not to become a party to the
treaty.

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 Article 31. General Rule of Interpretation (CONT) Article 33. Interpretation of Treaties Authenticated in
Two or More Languages
3. There shall be taken into account, together with the
context: 1. When a treaty has been authenticated in two or more
languages, the text is equally authoritative in each
(a) any subsequent agreement between the parties language, unless the treaty provides or the parties
regarding the interpretation of the treaty or the agree that, in case of divergence, a particular text shall
application of its provisions; prevail.
(b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties 2. A version of the treaty in a language other than one of
regarding its interpretation; those in which the text was authenticated shall be
(c) any relevant rules of international law applicable in considered an authentic text only if the treaty so
the relations between the parties. provides or the parties so agree.

4. A special meaning shall be given to a term if it is 3. The terms of the treaty are presumed to have the same
established that the parties so intended. meaning in each authentic text.

4. Except where a particular text prevails in accordance

Various approaches to treaty interpretation provided above: with paragraph 1, when a comparison of the authentic
texts discloses a difference of meaning which the
(a) Objective approach – according to the ordinary application of articles 31 and 32 does not remove, the
meaning which best reconciles the texts, having regard
meaning of words
to the object and purpose of the treaty, shall be adopted.
(b) Teleological approach – according to the telos or
purpose of the treaty Note: In case of conflict among official texts, the language
that is agreed by the parties as authoritative is followed.
(c) Subjective approach – honors special meaning
Illustration: Air France v. Saks – Article 17, Warsaw
given by the parties Conv.

Article 32. Supplementary Means of Interpretation Saks had become permanently deaf in her left ear during
her flight from LA to Paris. She filed a suit against Air
Recourse may be had to supplementary means of France, alleging that her hearing loss was caused by
interpretation, including the preparatory work of the treaty negligent maintenance and operation of the jetliner’s
and the circumstances of its conclusion, in order to confirm pressurization system.
the meaning resulting from the application of article 31, or
to determine the meaning when the interpretation
It was held that Liability under Article 17 arises only if a
according to article 31:
passenger’s injury is caused by an unexpected or unusual
(a) leaves the meaning ambiguous or obscure; or event or happening that is external to the passenger, and
(b) leads to a result which is manifestly absurd or not where the injury results from the passenger’s own
unreasonable. internal reaction to the usual, normal, and expected
operation of the aircraft, in which case it has not been
caused by an accident under Article 17.

(a) It is the cause of the injury that must satisfy the

definition rather than the occurrence of the injury
alone – the intention of the continental jurists by
using the French word (legal meaning)

(b) Interpretation is consistent with the negotiating

history of the Warsaw Convention, conduct of
parties, and weight of precedent

(c) An injured passenger is only required to prove that

some link in the chain of causes was an unusual or
unexpected event external to the passenger.

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Invalidity of Treaties whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of
The usual ground for invalidation of contracts can also general international law having the same character.
invalidate a treaty: error of fact, fraud, corruption or duress.
Note: There is no derogation allowed because it is jus
Article 48. Error cogens. It is the intrinsic nature of the rule that disallows
derogation.
1. A State may invoke an error in a treaty as invalidating
its consent to be bound by the treaty if the error relates While there is wide acceptance of the existence of jus
to a fact or situation which was assumed by that State cogens, there is wide dispute as to what principles rank as
to exist at the time when the treaty was concluded and such. The International Law Commission decided not to
formed an essential basis of its consent to be bound by stipulate a list of jus cogens rules for fear of being
the treaty. misunderstood and for fear of prolonged debate.

2. Paragraph 1 shall not apply if the State in question States Right to Assert Invalidity of Treaty
contributed by its own conduct to the error or if the
circumstances were such as to put that State on notice Article 45. Loss of Right to Invoke a Ground for
of a possible error. Invalidating, Terminating, Withdrawing From or
3. An error relating only to the wording of the text of a Suspending the Operation of a Treaty
treaty does not affect its validity; article 79 then applies.
A State may no longer invoke a ground for invalidating,
Article 49. Fraud terminating, withdrawing from or suspending the operation
of a treaty under articles 46 to 50 or articles 60 and 62 if,
If a State has been induced to conclude a treaty by the after becoming aware of the facts:
fraudulent conduct of another negotiating State, the State
may invoke the fraud as invalidating its consent to be (a) it shall have expressly agreed that the treaty is valid
bound by the treaty. or remains in force or continues in operation, as the
case may be; or
Article 50. Corruption of a Representative of a State (b) it must by reason of its conduct be considered as
having acquiesced in the validity of the treaty or in its
If the expression of a State’s consent to be bound by a maintenance in force or in operation, as the case
treaty has been procured through the corruption of its may be.
representative directly or indirectly by another negotiating
State, the State may invoke such corruption as invalidating
its consent to be bound by the treaty. Article 46. Provisions of Internal Law Regarding
Competence to Conclude Treaties
Article 51. Coercion of a Representative of State 1. A State may not invoke the fact that its consent to be
bound by a treaty has been expressed in violation of a
The expression of a State’s consent to be bound by a provision of its internal law regarding competence to
treaty which has been procured by the coercion of its conclude treaties as invalidating its consent unless that
representative through acts or threats directed against him violation was manifest and concerned a rule of its
shall be without any legal effect. internal law of fundamental importance.

Article 52. Coercion of a State by the Threat 2. A violation is manifest if it would be objectively evident
or Use of Force to any State conducting itself in the matter in
accordance with normal practice and in good faith.
A treaty is void if its conclusion has been procured by the
threat or use of force in violation of the principles of Article 47. Specific Restrictions on Authority to
international law embodied in the Charter of the United Express the Consent of a State
Nations.
If the authority of a representative to express the consent
Article 53. Treaties Conflicting With a Peremptory of a State to be bound by a particular treaty has been
Norm of General International Law (“jus cogens”) made subject to a specific restriction, his omission to
observe that restriction may not be invoked as invalidating
A treaty is void if, at the time of its conclusion, it conflicts the consent expressed by him unless the restriction was
with a peremptory norm of general international law. For notified to the other negotiating States prior to his
the purposes of the present Convention, a peremptory expressing such consent.
norm of general international law is a norm accepted and
recognized by the international community of States as a
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Amendment and Modification of Treaties Article 41. Agreements to Modify Multilateral Treaties
Between Certain of the Parties Only
Amendment – formal revision done with the participation,
at least in its initial stage, by all the parties to the treaty 1. Two or more of the parties to a multilateral treaty may
conclude an agreement to modify the treaty as between
Modification – involves only some of the parties themselves alone if:

Article 39. General Rule Regarding the Amendment (a) the possibility of such a modification is provided for
of Treaties by the treaty; or

A treaty may be amended by agreement between the (b) the modification in question is not prohibited by the
parties. The rules laid down in Part II apply to such an treaty and:
agreement except insofar as the treaty may otherwise
provide. (i) does not affect the enjoyment by the other
parties of their rights under the treaty or the
performance of their obligations;
The process for such is simple with regard to bilateral
treaties. In the case of multilateral treaties, the ff. provisions (ii) does not relate to a provision, derogation
shall apply: from which is incompatible with the effective
execution of the object and purpose of the
Article 40. Amendment of Multilateral Treaties treaty as a whole.

1. Unless the treaty otherwise provides, the amendment of 2. Unless in a case falling under paragraph 1 (a) the treaty
multilateral treaties shall be governed by the following otherwise provides, the parties in question shall notify
paragraphs. the other parties of their intention to conclude the
agreement and of the modification to the treaty for
2. Any proposal to amend a multilateral treaty as between which it provides.
all the parties must be notified to all the contracting
States, each one of which shall have the right to take Termination of Treaties
part in:
A treaty may be terminated or suspended according to the
(a) the decision as to the action to be taken in regard to
terms of the treaty or with the consent of the parties. A
such proposal;
treaty with a definite period may also expire. It may also end
(b) the negotiation and conclusion of any agreement for
the amendment of the treaty. when the purpose for the treaty has already been achieved.
But a mere change of government or severance of
3. Every State entitled to become a party to the treaty shall diplomatic relations does not terminate or suspend a treaty.
also be entitled to become a party to the treaty as
amended. Modes: material breach; impossibility of performance;
change of fundamental conditions (rebus sic stantibus)
4. The amending agreement does not bind any State
already a party to the treaty which does not become a
party to the amending agreement; article 30, paragraph
4 (b), applies in relation to such State.

5. Any State which becomes a party to the treaty after the

entry into force of the amending agreement shall, failing
an expression of a different intention by that State:

(a) be considered as a party to the treaty as amended;

and
(b) be considered as a party to the unamended treaty in
relation to any party to the treaty not bound by the
amending agreement.

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 A. Material Breach B. Impossibility of Performance

Article 60. Termination or Suspension Article 61. Supervening Impossibility of Performance

of the Operation of a Treaty
as a Consequence of its Breach 1. A party may invoke the impossibility of performing a
treaty as a ground for terminating or withdrawing from it
1. A material breach of a bilateral treaty by one of the if the impossibility results from the permanent
parties entitles the other to invoke the breach as a disappearance or destruction of an object indispensable
ground for terminating the treaty or suspending its for the execution of the treaty. If the impossibility is
operation in whole or in part. temporary, it may be invoked only as a ground for
suspending the operation of the treaty.
2. A material breach of a multilateral treaty by one of the
parties entitles: 2. Impossibility of performance may not be invoked by a
party as a ground for terminating, withdrawing from or
(a) the other parties by unanimous agreement to suspending the operation of a treaty if the impossibility
suspend the operation of the treaty in whole or in part is the result of a breach by that party either of an
or to terminate it either: obligation under the treaty or of any other international
obligation owed to any other party to the treaty.
(i) in the relations between themselves and the
defaulting State; or C. Change of Fundamental Conditions (Rebus sic
(ii) as between all the parties; stantibus)
(b) a party specially affected by the breach to invoke it
as a ground for suspending the operation of the Article 62. Fundamental Change of Circumstances
treaty in whole or in part in the relations between
itself and the defaulting State; 1. A fundamental change of circumstances which has
occurred with regard to those existing at the time of the
(c) any party other than the defaulting State to invoke conclusion of a treaty, and which was not foreseen by
the breach as a ground for suspending the operation the parties, may not be invoked as a ground for
of the treaty in whole or in part with respect to itself terminating or withdrawing from the treaty unless:
if the treaty is of such a character that a material
breach of its provisions by one party radically (a) the existence of those circumstances constituted an
changes the position of every party with respect to essential basis of the consent of the parties to be
the further performance of its obligations under the bound by the treaty; and
treaty. (b) the effect of the change is radically to transform the
extent of obligations still to be performed under the
3. A material breach of a treaty, for the purposes of this treaty.
article, consists in:
2. A fundamental change of circumstances may not be
(a) a repudiation of the treaty not sanctioned by the invoked as a ground for terminating or withdrawing from
present Convention; or a treaty:
(b) the violation of a provision essential to the
accomplishment of the object or purpose of the (a) if the treaty establishes a boundary; or
treaty. (b) if the fundamental change is the result of a breach
by the party invoking it either of an obligation under
4. The foregoing paragraphs are without prejudice to any the treaty or of any other international obligation
provision in the treaty applicable in the event of a owed to any other party to the treaty.
breach. 3. If, under the foregoing paragraphs, a party may invoke
a fundamental change of circumstances as a ground for
5. Paragraphs 1 to 3 do not apply to provisions relating to terminating or withdrawing from a treaty it may also
the protection of the human person contained in treaties invoke the change as a ground for suspending the
of a humanitarian character, in particular to provisions operation of the treaty.
prohibiting any form of reprisals against persons
protected by such treaties. Note: The provision is a codification of the common law
principle of rebus sic stantibus (“things thus standing”).

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Procedure for the Termination of Treaties Article 67. Instruments for Declaring Invalid,
Terminating, Withdrawing From or Suspending the
Article 65. Procedure to be Followed With Respect to Operation of a Treaty
Invalidity, Termination, Withdrawal From or
Suspension of the Operation of a Treaty 1. The notification provided for under article 65, paragraph
1, must be made in writing.
1. A party which, under the provisions of the present
Convention, invokes either a defect in its consent to be 2. Any act of declaring invalid, terminating, withdrawing
bound by a treaty or a ground for impeaching the validity from or suspending the operation of a treaty pursuant to
of a treaty, terminating it, withdrawing from it or the provisions of the treaty or of paragraphs 2 or 3 of
suspending its operation, must notify the other parties article 65 shall be carried out through an instrument
of its claim. The notification shall indicate the measure communicated to the other parties. If the instrument is
proposed to be taken with respect to the treaty and the not signed by the Head of State, Head of Government
reasons therefor. or Minister for Foreign Affairs, the representative of the
State communicating it may be called upon to produce
2. If, after the expiry of a period which, except in cases of full powers.
special urgency, shall not be less than three months
after the receipt of the notification, no party has raised Article 68. Revocation of Notifications and
any objection, the party making the notification may Instruments Provided for in Articles 65 and 67
carry out in the manner provided in article 67 the
measure which it has proposed. A notification or instrument provided for in Article 65 or 67
may revoked at any time before it takes effect.
3. If, however, objection has been raised by any other
party, the parties shall seek a solution through the
means indicated in Article 33 of the Charter of the Authority to Terminate
United Nations.
While it does not say who may terminate a treaty, it is logical
4. Nothing in the foregoing paragraphs shall affect the that the authority to terminate should also belong to the one
rights or obligations of the parties under any provisions who has the authority to enter into the treaty.
in force binding the parties with regard to the settlement
of disputes. In the Philippines, the authority to conclude treaties is
shared between the Senate and President.
5. Without prejudice to article 45, the fact that a State has
not previously made the notification prescribed in Succession to Treaties
paragraph 1 shall not prevent it from making such
notification in answer to another party claiming
performance of the treaty or alleging its violation. Article 16. Position in Respect of the Treaties of the
Predecessor State

Article 66. Procedures for Judicial Settlement, A newly independent State is not bound to maintain in
Arbitration and Conciliation force, or to become a party to, any treaty by reason only
of the fact that at the date of the succession of States the
If, under paragraph 3 of article 65, no solution has been treaty was in force in respect of the territory to which the
reached within a period of 12 months following the date on succession of States relates.
which the objection was raised, the following procedures
shall be followed: Note: The “Clean Slate” rule does not apply to treaties
affecting boundary regimes.
(a) any one of the parties to a dispute concerning the
application or the interpretation of article 53 or 64
may, by a written application, submit it to the Article 11. Boundary Regimes
International Court of Justice for a decision unless
the parties by common consent agree to submit the A succession of States does not as such affect:
dispute to arbitration;
(b) any one of the parties to a dispute concerning the (a) a boundary established by a treaty; or
application or the interpretation of any of the other (b) obligations and rights established by a treaty and
articles in part V of the present Convention may set relating to the regime of a boundary.
in motion the procedure specified in the Annex to the
Convention by submitting a request to that effect to
the Secretary-General of the United Nations.

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 Article 12. Other Territorial Regimes B. Monism / Monistic Theory – International law and
domestic law belong only to one system of law
1. A succession of States does not as such affect:
“When there is a conflict between international law and
(a) obligations relating to the use of any territory, or to domestic law, which is to prevail?”
restrictions upon its use, established by a treaty for
the benefit of any territory of a foreign State and ➔ The first theory, municipal law is superior
considered as attaching to the territories in question; ➔ The second theory, international law is superior –
(b) rights established by a treaty for the benefit of any seen as flowing from a deep suspicion of local
territory and relating to the use, or to restrictions sovereigns and from the conviction that it can
upon the use, of any territory of a foreign State and imbue the domestic order with a sense of moral
considered as attaching to the territories in question. purpose

2. A succession of States does not as such affect: Municipal Law in International Law

(a) obligations relating to the use of any territory, or to The prevailing practice accepts dualism, at least in its
restrictions upon its use, established by a treaty for postulate that there are two legal systems. This follows the
the benefit of a group of States or of all States and dualist tradition and blocks domestic law from entry into the
considered as attaching to that territory; international area.
(b) rights established by a treaty for the benefit of a
group of States or of all States and relating to the use • A state which has violated a provision of
of any territory, or to restrictions upon its use, and international law cannot justify itself by recourse to
considered as attaching to that territory. its domestic law.

3. The provisions of the present article do not apply to • A state which has entered into an international
treaty obligations of the predecessor State providing for agreement must modify its law to make it conform
the establishment of foreign military bases on the to the agreement. – a principle which is self-evident
territory to which the succession of States relates. according to which a state which has contracted to
a valid international obligation is bound to make in
its legislation such modifications as may be
INTERNATIONAL LAW AND MUNICIPAL LAW necessary to ensure the fulfillment of the
obligations undertaken (Exchange of Greek and
Dualism v. Monism Turkish Population Case)

A. Dualist / Pluralist Theory – International law and Article 27, VCLT. Internal Law and
municipal law are essentially different from each other; Observance of Treaties.
differ as to source
A party may not invoke the provisions of its internal law as
“When there is a conflict between international law and justification for its failure to perform a treaty. This rule is
domestic law, which is to prevail?” without prejudice to article 46.
➔ Municipal law – dualists are positivists with a
strong emphasis on state sovereignty Article 13. Declaration of Rights and Duties of States,
International Law Commission, 1949.
Municipal Law International Law
Every State has the duty to carry out in good faith its
Product of local custom Treaties and custom obligations arising from treaties and other sources of
or of legislation grown among states international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform
Regulates relations Regulates relations
this duty.
between individual between states
persons under the state
Note: In dualism, domestic and international law are not
Law of the sovereign Law between sovereign completely separate. Art. 38, SICJ recognizes the common
over individuals states teachings of domestic law as part of international law.

Reason: The Court would lose touch with reality. It is to

rules generally accepted by municipal systems and not to
the municipal law of a particular State.

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International Law in Domestic Law Municipal Rule

International law, unless made part of the domestic system, General rule: Domestic courts bound to apply the local law.
has no role in the settlement of domestic conflicts. It
becomes part of domestic law by: • If conflict between international agreement and
Constitution – TREATY WOULD NOT BE VALID
(a) Transformation – based on strict dualist approach AND OPERATIVE AS DOMESTIC LAW
wherein it must be expressly and specifically
transformed into domestic law via appropriate The SC has the power to declare a treaty
constitutional machinery such as an act of unconstitutional pursuant to Sec. 5 (2a), Art. VIII.
Congress
• If conflict between international agreement and
(b) Incorporation – by saying the Philippines ‘adopts legislation – THE LATER ONE PREVAILS
the generally accepted principles of international
law as part of the law of the land,’ the Constitution Treaties and statutes are equal in rank and neither
manifests its adherence to the dualist theory and is superior to the other, so the rule is as follows only
adopts said theory in the domestic sphere.

• Applies only to customary law and treaties

which have become part of customary law

Cases mentioned:

Kuroda v. Jalandoni: The Court considered jurisdiction

over war crimes as part of customary law.

Agustin v. Edu: Since the Philippines ratified the Vienna

Convention on Road Signs and Signals, a presidential
Letter of Instruction prescribing the use of early warning
devices was valid. It is not for this country to repudiate a
commitment to which it had pledged its word.

Reyes v. Bagatsing: The international duty of protecting

foreign embassies is recognized.

Conflict between International Law and Domestic Law

“When international law, whether customary or

conventional, comes into conflict with domestic law,
whether constitutional or statutory, which law should
prevail?”

➔ It depends on whether the case goes to a

domestic court or to an international tribunal.

International Rule

General rule: Before an international tribunal, a state may

not plead its own law as an excuse for failure to comply with
international law.

Exception: See Art. 46, VCLT – where violation was

manifest and concerned a rule of its internal law of
fundamental importance

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