PUBLIC INTERNATIONAL LAW Q&A

2C - Atty. Christian Drilon

THE BASICS 5. What is a jus cogens norm?

According to Art. 53 of the Vienna Convention on the Law of
1. What is international law? Treaties, jus cogens norms are peremptory norms which may be
According to the Restatement of Foreign Relations Law of the United States, invoked for the nullification of treaty clauses or obligations when
international law is the law which deals with the conduct of states and these are inconsistent with a recognized peremptory norm.
of international organizations and with their relations inter se, as well
as with some of their relations with persons, whether natural or 6. What is an erga omnes obligation?
juridical. An erga omnes obligation is one owed by States towards the
community of States as a whole. Some of these include protection
2. Differentiate public and private international law. from slavery, racial discrimination and outlawing genocide.
Public international law governs the relationships between and among
states and also their relations with international organizations and THE SOURCES OF INTERNATIONAL LAW, IN GENERAL
individual persons. Private international law is domestic law which deals
with cases where foreign law intrudes in the domestic sphere, where 1. Differentiate formal and material sources.
there are questions of the applicability of foreign law. Formal sources are the various processes by which rules come into
existence (i.e. treaty-making, legislation)
3. What are the theories about international law?
• Command theory (John Austin) – law consists of commands Material sources are the substance and content of the obligation. These
originating from a sovereign and backed up by threats of include treaties, case law and custom
sanction if disobeyed. Thus, international law is not law because
it does not come from a sovereign commander. 2. What are the sources of international law? PCT GJ
• Consensual theory – International law derives its binding force from According to Art. 38 of the Statute of the ICJ, the following are the
voluntary adherence to common practices. sources of international law:
• Natural law theory – International law is an application of natural a. International conventions, whether general or particular,
reasons to the nature of the state-person. establishing rules expressly recognized by contesting states
(Treaties)
• Dissenters – International law has no objective basis. It is only a
b.International Custom, as evidence of a general practice accepted
combination of politics, morality and self-interest
as law
smokescreened by legal language.
c. The General principles of law recognized by civilized nations
d. Subject to the provisions of Art. 59, Judicial decisions and the
4. What is a peremptory norm?
teachings of the most highly qualified Publicists
A peremptory norm is one where from which no derogation is
(MHQPs) of the various nations, as subsidiary means for the
permitted.
determination of rules of law

Note: a, b, and c are formal sources of International Law while d

are subsidiary means for the determination of rules of law.
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 • Collaborative mechanism –these operate to state organs and
3. Is there a hierarchy among art. 38(a), 38(b), and 38(c)? may be universal or regional (e.g. fishing agreements)
No, but the draftsmen intended to give an order by expressly stating • Bilateral treaties – contractual agreements which create shared
so in the original draft. Draftsman M. Ricci-Busatti of Italy opposed expectations. They are sometimes called “contract treaties”
the proposal saying giving the sources that the sources may be (e.g. Mutual Defense Treaty, Visiting Forces Agreement)
applied simultaneously and that the nature of each source differs.
Other members of the committee drafting the Statute agreed, and the 8. Who are bound by treaties?
statement was omitted. In general, only the parties are bound. However, the number of the
parties and the generality of the acceptance of the rules under the
4. Wbat happens when there is a conflict between a treaty and a treaty can create customary law.
custom?
In general, treaties and custom can be complementary. When there 9. What is pacta sunt servanda?
are conflicting sources of the international law, one must look at the This is the obligation of parties to comply with their obligations in
more specific or more recent source. A more specific treaty must good faith. According to Art. 26 of the VCLT, every treaty in force is
prevail since it is the more recent manifestation of the parties' binding upon the parties to it and must be performed by them in
choices. However, if a treaty is contrary to a customary rule of a jus good faith.
cogens status, custom will prevail according to Art. 53 of the VCLT.
10. What is a reservation?
5. Is equity applicable in international law? According to Art. 2 of the VCLT reservation is a unilateral statement,
According to Art. 38(2) of the Statute of the ICJ, the principle is however phrased or named, made by a State, when signing, ratifying,
applicable as ex aqueo et bono. However, the ICJ may only exercise its accepting, approving or acceding to a treaty, where it purports to
equity jurisdiction when all parties agree thereto. Otherwise, it may exclude or modify the legal effect of certain provisions of the treaty
not apply equity. in their application to that State.
TREATIES 11. When are reservations disallowed? SIP
• The reservation is Prohibited by treaty
6. What is a treaty?
• The treaty provides only Specified reservations, which do not
According to Art. 2 of the Vienna Convention on the Law of
include the reservation in question, may be made;
Treaties (VCLT), a treaty is: ISAW
• In cases not falling under sub-paragraphs a and b, the reservation
• An international Agreement
is Incompatible with the object and purpose of the treaty.
• Concluded between States
• In Written form, and 12. Does a reservation require acceptance by the other contracting
• Governed by International law states?
Art. 20 of the VCLT states the rules:
7. What are the types of treaties? • A reservation expressly authorized by a treaty does not
• Multilateral treaties – open to all states of the world (e.g. UN require any subsequent acceptance by the other contracting
Charter, ICCPR, WTO Agreement) States unless the treaty so provides.

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 • When it appears from the limited number of the negotiating • An express acceptance, objection or reservation made
States and the object and purpose of a treaty that the previously to the confirmation of the reservation does not
application of the treaty in its entirety between all the parties itself require confirmation.
is an essential condition of the consent of each one to be • The withdrawal of a reservation or of an objection to a
bound by the treaty, a reservation requires acceptance by all reservation must be formulated in writing.
the parties.
• When a treaty is a constituent instrument of an international 14. When is a reservation considered to have been accepted?
organization and unless it otherwise provides, a reservation Unless the treaty otherwise provides, a reservation is considered to
requires the acceptance of the competent organ of that have been accepted by a State if it: OE
organization. • Shall have raised no Objection to the reservation or
• In cases not falling under the preceding paragraphs and • By the date on which it Expressed its consent to be bound by
unless the treaty otherwise provides, the treaty, whichever is later.
o Acceptance by another contracting State of a
reservation constitutes the reserving State a party to 15. What are the legal effects of reservations and of objections to
the treaty in relation to that other State or when the reservations according to Art. 21 of the VCLT?
treaty is in force for those States. • Modifies for the reserving State in its relations with that other
o An objection by another contracting State to a party the provisions of the treaty to which the reservation
reservation does not preclude the entry into force of relates to the extent of the reservation; and
the treaty as between the objecting and reserving • Modifies those provisions to the same extent for that other
states unless a contrary intention is definitely party in its relations with the reserving State.
expressed by the objecting state
• However, it does not modify the provisions of the treaty for
o An act expressing a State's consent to be bound by
other parties to the treaty inter se.
the treaty and containing a reservation is effective as
soon as at least one other contracting State has • When a State objecting to a reservation has not opposed the
accepted the reservation. entry into force of the treaty between itself and the reserving
State, the provisions to which the reservation relates do not
13. What is the procedure for making, accepting or objecting to apply as between the two States to the extent of the
reservations? reservation.
According to Art. 23 of the VCLT, the procedure is as follows:
16. When can reservations and objections thereto be withdrawn?
• They must be formulated in writing and communicated to the
According to Art. 22 of the VCLT, unless the treaty otherwise
contracting States and other States entitled to become parties
provides, a reservation may be withdrawn at any time and the
to the Treaty.
consent of the State which has accepted the reservation is not
• If formulated when signing the treaty, a reservation must be required for its withdrawals.
formally confirmed by the reserving State when expressing its
consent to be bound by the treaty. The reservation shall be Further, unless the treaty provides, an objection to a reservation may
considered as made on the date of its confirmation. be withdrawn at any time.

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17. When do withdrawals of reservations and objections thereto • Agreements relating to the treaty made between all
become operative? the parties in connection with the conclusion of the
According to Art. 22 of the VCLT, the withdrawal of a reservation treaty
becomes operative in relation to another Contracting State only when • Any Instrument which was made by one or more
notice of it has been received by that State. parties in connection with the conclusion of the treaty
and accepted by the other parties as an instrument
The withdrawal of an objection to a reservation becomes operative related to the treaty
only when notice of it has been received by the State which 3. There shall be taken into account, together with the context:
formulated the reservation. PAR
• Any subsequent agreement between the parties
18. Do the above provisions on reservations apply to bilateral regarding the interpretation of the treaty or
treaties? application of its provisions
They are only required for multilateral treaties. A proposed
• Any subsequent practice in the application of the
reservation to a bilateral treaty is a proposal for amendment.
treaty which establishes the agreement of the parties
regarding its interpretation
19. What is the effect of the absence of a reservation clause?
According to Art. 20 of the VCLT, a reservation would not require • Any relevant rules of international law applicable in
acceptance by the other states unless the treaty so provides. the relations between the parties
4. A special meaning shall be given to a term if the parties
20. When is a reservation allowed to be made? intended to give it one.
According to Art. 23 of the VCLT, a reservation may be made on
signature, ratification, or on the occasion of any other act by which a Art. 32 of the VCLT, on the other hand, shows the subsidiary means
state gives its consent to be bound. A reservation that is formulated for the interpretation of treaties. The following may be used as
on signature of a treaty that requires ratification must be confirmed supplementary means: PC
on ratification. reservation may not be made after expressing its • Preparatory work (traveaux preparatoires)
consent unless treaty provides or none of the other contracting states • Circumstances of its conclusion
oppose the late reservation.
Recourse to supplementary means of interpretation, including the
21. How are treaties to be interpreted? preparatory work and the circumstances of its conclusion may be
Art. 31 of the VCLT is the primary means for the interpretation of used if the interpretation according to Art. 31: AOAU
treaties. • Leaves the meaning Ambiguous or Obscure; or
1. Treaties must be interpreted in good faith with the ordinary • Leads to a result which is manifestly Absurd or Unreasonable
meaning to be given to the terms of the treaty in their context
and in light of its object and purpose. 22. What are the grounds to invalidate a treaty? JF2EC2
2. In addition to the text, the context for the purpose of • Error
interpretation include its: PAAI • Fraud
• Preamble • Corruption of a representative of a State
• Annexes • Coercion of a representative of a State

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 • Coercion of a State by the threat or use of Force • If the fundamental change is the result of a Breach by the
• Violation of a Jus Cogens norm party invoking it

23. What are the grounds for the termination of a treaty? P3CBRT 28. Is municipal law a defense for failure to perform a treaty?
• Terms of the treaty provide for termination No. According to Art. 46 of the VCLT, a party may not invoke the
provisions of its internal law to justify breach of treaty obligations.
• Consent of the parties
• Treaty with a definite Period 29. If a restriction on a representative’s consent is not expressed,
• When the Purpose has been achieved does this invalidate his consent?
• Material Breach No, according to Art. 47 of the VCLT, if the authority of a
• Impossibility of Performance representative to express the consent of a State to be bound by a
• Rebus Sic Stantibus (change of fundamental conditions) particular treaty is restricted, his omission to observe that restriction
does not invalidate consent unless the restriction was notified to the
24. What qualifies as a material breach of a treaty according to Art. other negotiating States prior to his expressing such consent.
60 of the VCLT? RE
• A Repudiation of a treaty not sanctioned by the VCLT CUSTOM
• A violation of a provision Essential to the accomplishment of
the object or purpose of the treaty 30. What is custom?
According to the North Sea Continental Shelf Cases, custom consists of
25. What is the principle of rebus sic stantibus? unwritten rules evinced from the generality and uniformity of the
According to Art. 62(1) of the VCLT, it is a fundamental change of practice of states and is adhered to by such states out of a sense of
circumstances which was occurred with regard to those existing at legal obligation or opinio juris.
the time of the conclusion of a treaty and which was not foreseen by
the parties. 31. What are the elements of custom?
According to the Legality of Nuclear Weapons case, the substance of
26. When does rebus sic stantibus apply? customary rules is to be found in: PO
According to Art. 62(1)(a)&(b) of the VCLT, it applies: ET (when a. Actual state Practice
your treaty is now something you used to know) b.Opinio juris or a sense of legal obligation
• When the existence of those circumstances constituted an
According to the North Sea Continental Shelf case, they are: DUGO
Essential basis of the consent of the parties to be bound by
a. Duration
the treaty; and
b.Uniformity and consistency
• The effect of the change is radically to Transform the extent c. Generality
of obligations still to be performed under the treaty d. Opinio juris et necessitates
27. When is rebus sic stantibus inapplicable? (Fun fact: celebrating peace agreements with bloodletting was a
According to Art. 62(2) of the VCLT: BB common custom in pre-colonial Philippines)
• If the treaty establishes a Boundary

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32. What is opinio juris? According to the dissenting opinion of Judge Tanaka in the South
Opinio juris is the state’s belief that a certain form of behavior is West Africa Cases, Article 38(1)(b) of the ICJ Statute does not exclude
obligatory. This is a sense of legal obligation. the possibility of a few dissidents. For the State to be exempt, it
should have dissented while the law is still in the process of
33. How does one prove opinio juris? development to qualify as a persistent objector not bound by the rule
According to the dissent of Judge Sorensen, citing MHQP even after it matures.
Lauterpacht, in the North Sea case¸ opinio juris may be presumed to
exist if a uniform practice is proven. However, the main decision However, according to the International Law Commission’s Draft Articles
required the State to prove that the constant and uniform practice of Responsibility of States, a persistent objector cannot escape being
resulted from a feeling of obligation. The dissenters all think that bound by a new rule of customary international law that has the
opinio juris, being a subjective element, is very hard to prove. character of jus cogens.

34. Are all States bound by custom? 38. How is consent to a practice indicated?
Yes! It doesn’t matter if they expressly consented to be bound by Positive statements or other action is not required. Acquiescence is
such rule. enough. However, the Anglo-Norwegian Fisheries case held that actual
or constructive knowledge of the claim is necessary.
But there is such a thing called a local / regional custom, which
only affects a particular region or group of States. An example of this 39. Is there a time requirement for state practice?
is allowing free passage to Portuguese citizens in a certain region in There is no precise length of time during which a practice must exist,
India, according to the Case Concerning Right of Passage over Indian it simply must be followed long enough to show that the other
Territory. requirements of custom exist.

In fact, according to the Asylum case,local customs may supplement 40. Is there such a thing as instant custom?
or derogate from general customary international law, subject to rules Although in general, custom requires duration of a practice, it can
of jus cogens. come about as a spontaneous activity of a great number of states
supporting a specific line of action.
35. Are dissenting states bound by custom?
Yes, unless they had consistently objected to it while the custom was An example of this is when several nations supported the actions of
merely in the process of formation. Then these dissenters are called the USA against Osama Bin Laden in light of the 9/11 attacks.
persistent objectors.
41. How does one prove state practice?
36. Is there a number and kind of states whose practice should be According to the International Law Commision, a state may use
established for it to be a basis for custom? treaties, decisions of international and national courts, national
According to the Legality of Nuclear Weapons Test case, a practice does legislation, diplomatic correspondence, opinions of national legal
not have to be followed by all states, but rather, the practice of states advisers, or practice of international organizations. This is not an
with a particular interest in the subject matter is the most important. exclusive list.

37. Can one state, or a few states, protest a practice? According to MHQP Ian Brownlie, these may also include policy
statements, press releases, official manuals on legal questions (like

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 manuals of military law), executive decisions and practices, orders to 47. Who is an MHQP?
military forces, comments by governments on drafts produced by the A publicist is a learned writer. The writings of such persons can be
International Law Commission. evidence of customary law, like judicial decisions and can also play a
subsidiary role in developing new rules of law.
42. What is the binding effect of UN General Assembly
Resolutions? 48. What are the requisites for one to be an MHQP? A FIRe
In general, UN GARs are not binding. However, when they pertain • Fair and Impartial Representation of law
to general norms of international law, the acceptance by a majority of • Acknowledged Authority in the field
UN members shows statepractice.
THE PHILIPPINE SETTING
GENERAL PRINCIPLES OF LAW
49. What does PHIL. CONST. art. 2 §2 say?
43. What is a general principle of law? The Philippines renounces war as an instrument of national policy,
General principles are principles of municipal law common to the adopts the generally accepted principles of international law as part of
legal systems of the world. the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations.
44. What is the binding effect of soft law?
Soft law instruments (i.e. the Yogyakarta Principles on the 50. What is the doctrine of incorporation?
Application of International Human Rights Law in relation to Sexual The rules of international law form part of the law of the land, and
Orientation and Gender Identity) are recommendatory instruments no further legislative action is needed to make such rules applicable in
as they do not have the force and effect of law. the domestic sphere.

JUDICIAL DECISIONS 51. Can international law be used to settle disputes in the
Philippines?
45. Is the International Court of Justice bound by stare decisis? Yes, by virtue of incorporation. Customary law and treaties which
No. Art. 59 of the Statute of the ICJ provides that the decision of the have become customary law become part of the land by virtue of
Court only binds the parties and in respect of a particular case. PHIL. CONST. art. 2 §2.
However, it must be noted that the Court strives to maintain judicial
consistency. 52. What is the doctrine of transformation?
The generally accepted rules of international law are not per se binding
46. Can the decisions of local courts be used in arguing before the upon the State but must first be embodied in legislation enacted by
ICJ? the lawmaking body and so transformed into municipal law.
Yes. Interesting, right? But check out Art. 38(1)(d) of the ICJ Statute
or Item #2 of this Reviewer. It merely says judicial decisions without 53. How does the Philippines adopt a treaty?
qualifying the origin of such decisions. Decisions of national tribunals Treaties become a part of the law of the land when concurred in by
can be evidence of practice. the Senate in accordance with Article VII, Section 21 of the
Constitution.
MOST HIGHLY-QUALIFIED PUBLICISTS

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