Public International Law Definition the body of laws that govern the relationship between states (traditional definition which focuses on the states as the actors)Comment by msgk-4: The body of rules and principles of action which are binding upon civilized states in their relations with one another (Brierly)It regulates the relations of states and other entities which have been granted an international personality (Hackworth)A transnational law which regulates actions/events that transcend national frontiers (Jessup). Jessup did not like the term international law.Private International Law rules in the application of domestic law.Decisions of ICJ are applicable only to the parties and to the particular case. Stare Decisis is not applied. In common law, stare decisis is used.Customary International Law not found in conventionsPIL also governs things. Can UN bring an international claim?The Court has come to the conclusion that the Organization is aninternational person.That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State.Still less is it the same thing as saying that it is 'a super-State', whatever that expression may mean.It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims. modern definition: rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical (Section 101, Restatement (Third), American Law Institute of Foreign Relations Law of the US)Comment by msgk-4: One important source of International Law modern definition includes not only states but international organizations such as the UN and personsInternational law is rather developing. It develops with the changes of the states.

Subjects of International Law those that enjoy international legal personality and being capable of possessing international rights and duties, including the right to bring international claims

Primarily: states can directly come before an international tribunal (if the state is a member of the UN)Secondarily: international organizations (e.g. UN, WTO), individuals (protected persons of International Humanitarian Law, insurgents and national liberation movements, minorities), juridical persons (multinational companies), and NGOs (International Committee of the Red Cross, Greenpeace, Amnesty Intl)Comment by msgk-4: Maybe subject to international law under specific provisions.An exercise of the right to self-determination can be done under certain framework. If the government becomes oppressive to the national liberation movements of the minority group, such minority group can be subject of international law. Such conflict will be considered as international armed conflict under the 1949 Geneva Convention.- secondary subjects are objects of PIL but in some instances may be subjects of PIL in the cases aboveComment by msgk-4: If object, an international claim can only be brought by government/state. An individual is an object.

*from Reparation for Injuries case (ICJ Advisory opinion 1949)

States, still primarily the subjects of PIL international law is still 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 may appear in contentious proceedings before the International Court of Justice only states can present a claim on behalf of a national who has been injured by another state, if there is no treaty to the contraryMeaning of International Legal Personality: the ability to possess international rights and duties and the power to sustain these rights by bringing international claims (ICJ advisory opinion 1949)

Derivative International Legal Personality the kind of personality that UN, one of the objects, or secondary subjects, possesses

Characteristics of IPL horizontal legal system (billiard ball theory (state as a whole and not dealing with the inside of the state) vs. transnational law (you have to look at the laws of the state first because you cant go to the ICJ directly if you have not exhausted domestic remedies))vertical legal system - hierarchy of authority, hierarchy of laws; typical of a domestic legal system lacks a supreme authority, except to the extent that states may have subjected themselves to certain compulsory processes and consequences under treaties and conventions self-help, unlike in domestic sphere applying domestic law, is normally the means by w/c states enforce their rights: e.g. retorsion (a lawful act designed to injure the wrongdoing of another state), reprisal (act that is normally illegal but rendered legal by a prior illegal act committed by another state)

November 12/14 (Lower Portion of Slides PIL)

Public International Law v Private International Law:

No legal system governs the private international law. There are rules that say that this domestic law should be applied. If we talk of how to determine which rules to apply, there is a conflict of law. Public International Law a different legal system; a separate law. In Private International Law, there are rules for the application of the domestic law; governs activities of multinational corporations.

A public international problem:

A relationship between States A and B. Whose State is bound to recognize the liabilities of the ambassadors?

The ambassador died in State A and was found that he had properties in State B. What law with regards to estate should be applied? This is a Private International Law.

A very common norm in private international law is the concept of renvoi.

Significance of the Peace of Westphalia to Public International Law paved way for Public International Law; it ended the 30-year war. It recognized the sovereignty of the states.

The Significance of the Lieber Code: provided greater respects of war.

History of Public International Law:

Hugo Grutious founder of modern international law.

Started from religious war between Protestant States and the Roman Catholic States for 30 years.

1518-1548 Religious WarNatural Theory of Law a law existedTreaty of Westphalia origin of monopoly of power sovereignty; ended the 30-year war because states agreed to respect the monopoly of power; states should not intervene. Sovereignty cannot be dimisnished.

1789-birth of the term inter-national law by J. Bentham1863 Lieber Code (Lincolns General order no. 100 or the lieber instructions, the first document that governs conduct of warComment by msgk-4: It played a vital role in the establishment of public international law for it was one of the basis for the formation of the rules of warComment by msgk-4: Codified already in the 1949 Geneva Convention.The mankind is lucky enough to have Abraham Lincoln for he could have exercised the special power to defeat the Southern insurgents. 1899- permanent court of arbitration1907- Hague and Geneva conventions (there were four geneva conventions)Comment by msgk-4: Created by powerful states

Treaty of Westphalia- ended the war since the states realized to respect the monopoly of power. In a given territory, theres only source of authority. Sovereignty itself cannot be limited.

The Lieber Code the precursor of the rules of war; these are codified thru geneva conventions and other conventions; mankind is lucky enough to have A. Lincoln because during the civil war he could have wielded power to defeat the South but instead freed the slaves. Lincoln issued orders to soldiers to follow in the conduct of war. The Lieber code played as the basis of the formation of the rules of war.

1948 to prevent a third world war the powerful states codified the conduct of war.1959 Vienna Convention on the Law of Treaty, it was a 20-year in the making. It codified the existing customary international law about treaty and some rules of the conduct of war19th-20th centuries- the increase in global trade, armed conflict, environmental deterioration on a worldwide scale, awareness of human rights violations, rapid and vast increases in international transportation and a boom in global communications saw the importance and usefulness of PIL, which at the time began to establish new and modern areas in international law (trade, technology, human rights, immigration, outerspace)

ILC played vital role in interpreting treaties and understanding the Public International Law.

November 15, 2014 Discussion

Is public international law a law?Comment by msgk-4: The PIL cannot be considered a law:The PIL cannot be a law because of the lack of sanctions and penalties for violation of international law. If we talk of law, domestically and on the basis of the classical theory of the nature of law, a law is imposed, it is a command, there is a higher authority deciding for the consequence. PIL does not have international legistion, international courts. There might be organizations creating similar mechanisms of law-making, law-implementing, and law-interpreting but the power of these institutions are not similar to the power of the institutions at the domestic level. Ie. in law-making, except in cases where states enter into conventions, refer to resolutions issued by the General Assembly while these may be considered manifestation or evidence of international, these are not legally-binding principles found in the General Assembly, unlike statutes of the domestic legal system.Talking of the execution even the implementation of the functions of the Security Council will encounter problems and obstacles; most of its functions are discharged in accordance to the willingness of the states to cooperate. States can invoke the functions of Security Council but there military functions can only be had when there is unanimous decision of the members. A single veto will paralyzed the military function.ICJs jurisdiction is based on consent; the only instance when there is compulsory jurisdiction is when the state declares in advance that it submits to its jurisdiction.Thus, international law cannot be considered a law under the context of law understood domestically.In any case that PIL can be considered as a law: Which provides the sanctions? If you think of law as something that traverses those that are governed by the law. The element of coercion only as in determining factor of the conception of law, we ask the second question because states do observe international law. If you think that it is a form of coercion, something that generates specific conduct, provides for expectation of the conduct, whether it has the ability to command obedience, if yes, then why do states obey IL? How nations behaved? It is more of a fact that IL is a law because almost all of the nations obey/observe the general principles of IL. It is a law, in fact, it is found in domestic legal instruments. It is more of a fact that it is a law.

Why do sovereignty states obey international law?

Self-interest theory best interest of states to observe IL; not observants of IL (based on experiences of states) resulted to adverse consequences, it could be to the best interest of the states to behave properly. The problem of IL is on the enforcement of sanctions. If one commits an internationally wrongful act, then under customary international law, there should a state liability.

Who determines state sanctions? State practices.

The Doctrine of Self-help if you do not observe IL, states can apply self-help doctrine: retorsion legal act to address improper act (cutting off an econcomic aid to the wrongdoer); a more drastic punishment is reprisal an illegal act rendred legal by a prior illegal act committed by the wrongdoer (ie. expropriation of the property of the foreigners in the offending state without just compensation).

Acculturation theory with or without sanctions, states do observe IL out of habit. It becomes a culture of the states to be good.

How is public international law formed and enforced to make it a law?

Is PIL a positive law?Some reason why sovereign states obey PIL

-self-interest theory-acculturation theory-legitimacy theory some provisions in the IL are good in the sense that they are approved by so many states-positivist theory similar to a domestic law in a way that states agreed that they may be subjected to command created by themselves

Sources of Law:

Lex Lata the law as it is; the law as it stands now

Lex ferenda the law that should be, may be, or in the future normative form of IL; means moving forward.

The Sources of Law means to cover lex lata, not ferenda.

Both are relevant to PIL because:

Formal/Legal Source how the law is created; essentially talks about the formation of the IL; as undergoing a process that is solemn; how it is formed.Material Source historical (ie. labor laws arise because of past labor disputes); matter

States A and B went to a treaty. It is formal. As between the contracting parties, there is a law. It is agreed by the parties; becomes a source of law between them, (not customary, else becomes applicable to all). It is binding because of consent. That is the formal source. The material source refers to the very provisions that are found in the treaty itself.

Some forms of peaceful enforcement of PIL: voluntary compliance, force of public opinion, self-help, treaty-based enforcement

2 Stages in International Judicial Proceeding: Procedural Stage and Merits Stage there are procedural issues that must be resolved first before going to the merits stage.

Problem:

Following the overthrow of the right wing government in Nicaragua in 1979, the US in 1981 ceased economic aid on the ground that the left wing Sandinista government in Nicaragua had aided the guerillas fighting against the El Salvador government with which the US enjoyed good relations.Comment by msgk-4: The US intervened in Nicaragua. by financing, training, arming and logistically supporting the contras in Nicaragua. There was an allegation that US airforces intervened the territory of Nicaragua. It violated the non-intervention principle.The use of force principle the US engaged in cross-border confrontation with Nicaragua forces and led internal wars.The interesting point in the principle of the prohibition of the use of force was invoked by Nicaragua which found in the Article 51 of the UN Charter and Article 21 of the OAS Charter. An exception of the prohibition of the use of force is individual and collective self-defence.

The US did not participate in the procedural stage, only in the merits stage

The US questioned the jurisdiction of ICJ in matters that involved multilateral treaties. Article 36 of the ICJ Statutes, states:Article 361. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: Comment by msgk-4: The State may declare a reservation not be subjected to the jurisdiction of ICJ.a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation. 3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time. 4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court. 5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms. 6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court. Nicaragua complained of violations of customary international law when the US used armed force against it and when it provided assitance to Nicaragua guerrillas ((contras) who had been fighting to overthrow the Sandinista government. The US denied the ICJ jursidiction on the basis of a reservation it made to the jurisdiction of the ICJ in matters that involve multilateral treaty. Nicaragua argued that customary international law had not been suspended by the UN Charter.Comment by msgk-4: Nicarague did not invoke Article 24 of the UN Charter, but that customary ILComment by msgk-4: Codified in a treaty but will not cease to exist just because it was codified in the UN Charter. It can in fact co-exist with the treaty, it will remain and continue to exist as a customary IL.

The reservation made by US was of no use because Nicaragua had not confined its claims to breaches of multilateral treaties but had also invoked a number of principles of general and customary international law, as well as the bilateral Treaty of Friendship, Commerce and Navigation of 1956. These principles remained binding as such, although they were enshrined in treaty law provisions ... the claim would not be barred by the multilateral treaty reservation

The reservation in question is not necessarily a bar to the United States accepting the Courts jurisdiction whenever a third State which may be affected by the decision is not a party to the proceedings. According to the actual text of the reservation, the US can always disregard this fact if it specially agrees to jurisdiction. Besides apart from this possibility, the Court recently observed: in principle a State may validly waive an objection to jurisdiction which it might otherwise have been entitled to raise. But it is clear that the fact that the US, having refused to participate at the merits stage, did not have an opportunity to press again at that stage the argument which, in the jurisdictional phase, it founded on its multilateral treaty reservation cannot be tantamount to a waiver of the argument drawn from the reservation.Comment by msgk-4: disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdictionComment by msgk-4: In international court the proceedings had 2 phases: jurisdictional stage and the merits stage. US did not participate in the merits stage.

Concept of sovereignty in PIL states are co-equal with and independent of each other, and not that they are not subjected to higher authority (which is the concept of sovereignty in municipal law)Some reasons why sovereign states obey PIL:1. Self-interest theory possible economic or other advantages to the obedient state2. Acculturation theory part of culture3. Legitimacy theory just, right, reasonable, pragmatic4. Positivist theory consent-based theorySome forms of peaceful enforcement of PIL: voluntary compliance, force of public opinion, self-help, treaty-based enforcementSources (formal or legal) of pil:Primary: a. International conventionsb. International customc. General principles of lawSubsidiary:d. Judicial decisions and teachings of most highly qualified publicistsInternational conventions/treaties Whether general or particular and establishing rules expressly recognized by the contesting states The term convention includes and actually means treaty Other terms: agreement, pact, understanding, protocol, charter, statute, act, covenant, declaration, engagement, arrangement, accord, regulation and provision Law-making treaties vs. contract treatiesCustom Art 38 (1), ICJ Statute: As evidence of a general practice accepted as law Sec. 102, restatement: general and consistent practice of states followed by them from a sense of legal obligation

A practice that states believe themselves to be under a legal obligation to follow (opinio juris) (state immunity)

Usage or comity is a practice that states generally follow without believing themselves legally bound to do so (ex. alternat)Two elements:1. Objective element general practice2. Subjective element opinio juris-only states make customary international lawCustomary intl law evolves if enough states adopt a new practice, which is in violation of customary intl law, the new practice becomes the new customary intl lawHighest form of CIL: just cogens A peremptory norm of general intl law w/c is accepted by the intl community of states as a whole as a norm from w/c no derogation is permitted. Includes genocide, torture, slaveryBasic characteristics of customary international law:-repeated state practice-practiced out of a sense of a legal obligation - usually developed over time and-recognized as law (opinio juris)-Need not be universal

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11-19-14 (V11)Article 6, Geneva Convention on the Continental Shelf:Comment by msgk-4: In North Sea Continental Shelf Case, the Court said that Article 6 of the Geneva Convention did not consider that the first norm when there is a conflict between the two states. That the Convention recognized first the agreement between the parties and next was to look at the special circumstances. These do not reflect therefore the belief of equidistant principle because if it did, it should have stated unconditionally that the equidistant principle was a CIL. Instead, it considered the principle as not obligatory.In Northsea Continental Shelf case, the Court says that the requirement in order equidistance becomes part of customary international law is that it should be practiced extensively and uniformly by the State including that of States whose interests are specially affected.The ICJ noted that one was not the party so it tried to look at if equidistant principle was a CIL for this party to be bound with the equidistant principle. It was important for the CIJ to note whether the Convention was a codification of the equidistant principle or the equidistant principle had established a CIL. It analyzed the equidistant principle whether it was a general practice and there was opinio juris.The short period of time cannot be conclusive evidence that an act is not a CIL because even if it evolved for a short period of time, so long as there is uniform and extensive practice of the states, including those affected, it can be considered as a CIL. Time is not therefore controlling. Germany was not a party to the Convention and there was no sufficient proof that the equidistant principle was a CIL.Reasoning of ICJ showing that there was not enough basis to conclude that equidistant principle was a CIL:Opinio Juris = states practice the norm on the belief that this norm is obligatory and this can be found in the tenor of the Convention. The Convention only considered the equidistant principle was only a third option and therefor it was not the belief of the states that it was obligatory to follow equidistant principleThere are 3 layers in Article 6:1st: Consent, in absence of:2nd: Inquire special circumstance that will require boundary line, in absence of:3rd: Equidistant principle

(1) Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

(2) Where the same continental shelf is adjacent to the territories of two adjacent States, the boundary of the continental shelf shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary shall be determined by application of the principle of equidistance from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.

(3) In delimiting the boundaries of the continental shelf, any lines which are drawn in accordance with the principles set out in paragraphs 1 and 2 of this article should be defined with reference to charts and geographical features as they exist at a particul date, and reference should be made to fixed permanent identifiable points on the land.

Key Principles:1) CIL must be determined by the general practice of the states and not just by states-party of the dispute before the ICJ2) Opinio juris

11-20-14 (V15)How the norm is stated in a particular provision in a Convention one way of telling if the norm is a CIL, like in the North Sea Continental Shelf

UNCLOS III, Jamaica 1982 combined the different method of delimitations in case there is an overlapping of boundaries in continental shelf

1950 Geneva Convention on Continental Shelf provides 3 layers of which delimitation may resolve: Agreement Special Circumstances Equidistant PrincipleIn UNCLOS III more simple if there are costs adjacent, composite to each other, continental shelf should be delimited by 1) agreement between parties on the basis of equitable consideration, 2) in the absence thereof, taking considerations of equity, the parties shall now submit the question to the international tribunal (Art 83).

Article 83, UNCLOS 1982.1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in PartXV.3. Pending agreement as provided for in paragraph1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.11/19/12Nicaragua vs. usa el Salvador and us were allies; Nicaragua was supporting the rebels in el Salvador and el sal govt requested the assistance of the us; reason for us attacking Nicaragua is collective self-defense by el sal and us article 36 of the statute of the icj is regarding compulsory jurisdiction of the icj. Us made a reservation regarding jurisdiction if a multilateral treaty is to be applied, the UN charter in this case, because the us did not want the icj to apply the provisions in the un charter regarding prohibition against the use of force and non-intervention contention of Nicaragua was that, notwithstanding the provisions of the un charter, there is already a customary international law against the use of force and non-interventiongeneral principles of the case:1. general customary intl law must be determined by the general practice of the states and not just by the states party to the dispute before the icj. Opinio juris may be deduced from the attitude of the parties concerned and that of states to certain general assembly resolutions. State practice: look into the practice of those states whose interests are specially affected by the particular situation.2. The prohibition on the use of force is jus cogens3. Principle on non-intervention is CIL and therefore, not affected by treaty stipulation4. CIL can exist alongside treatiesIf not just cogens, just ordinary CIL, not all states are bound by it (applying persistent objector rule)Persistent objector rule state must have objected from the start, when there is yet no CIL So there is no such thing as majority rule in PILFisheries jurisdiction case: Rebus sic stantibus (fundamental change of circumstances) is a CIL.

How to check whether there is opinio juris:Deduced from the attitude of the parties concerned and that of states to certain general assembly resolutions there must also be overt acts following the declarationsComment by msgk-4: Basis of ICJ in ruling: evidence of that belief that these are obligatory normsWhy general assembly resolutions are a good evidence of opinio juris? Resolution agreed upon, authored, executed, made, manifested by Gen. Ass of UN members of UN, more than 190 States affirmed the resolutions, ie. Gen Ass Res 2625 universal declaration on dealing among states these are friendly relations of statesState Practice: extensive and virtually uniform including affected states

If the norm is still in the formation of CIL, non-practice of some states will not prevent the formation of CIL because of the doctrine of persistent objector so long as there is extensive practice and virtually uniform. Objection cannot bar at becoming CIL so long as there is extensive state practice and virtually uniform state practice including the states affected.

If it is already a CIL, and there is a continued non-observance of the norm, it is not sufficient to override CIL, it should only be treated as more of a violation of CIL rather than an obstacle of the continued persuasiveness of CIL.

11-24-14Legality of the threat of nuclear weapons:

The ICJ found out that the General Resolution can actually show the provision of opinio juris even not binding, there remained a normative value.

The observance of CIL may result to the restriction of the sovereignty of the states the restriction is not presumed, thus, there must be a clear restriction on the sovereignty.

Is the use of nuclear weapons equivalent to use of force?

WON, there is CIL with regards to the use/threat of nuclear weapons? Or there is a convention IL prohibiting the use of nuclear weapons? NEITHER. However, the ICJ was not unanimous on said matter.

WON, CIL also allows the use of nuclear weapons or conventional IL allows the use thereof?

Key Principles1. General assembly resolutions may show the formation of opinion juris. Even if they are not legally binding, they may sometimes have normative value.2. A state is barred to do an act only when it is so prohibited under a treaty or customary international law. Restriction of states sovereignty is not presumed.ICJ Opinion and Voting:Unanimous on the principle that there is in neither customary nor conventional IL any specific authorization of the threat or use of nuclear weapons

11-3 on the principle that there is neither customary nor conventional IL any comprehensive and universal prohibition of the threat or use of nuclear weapons

Unanimous, on the principle that a threat or use of force by means of nuclear weapons that is contrary to Art 2 par 4 of the UN Charter and that fails to meet all the requirements of Art 51, unlawfulComment by msgk-4: When article 51 (collective and individual self-defence) does not apply

Unanimous, on the principle that threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons

7-7, on the principle that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stakeComment by msgk-4: Invocation of self-defence may be exercised in not extreme methods. The attack must be massive. There is no consisitent finding that the massive attack must be such to endanger the existence of the state.The use of nuclear weapon, there is no definite answer whether it can be lawfully used in the exercise of self-defence in an extreme circumstance whereby it endangers the very existence of the state.

Unanimous, on the principle that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control

Problem (France v Turkey):Comment by msgk-4: Constructive territoriality principle because the nationals of Turkey where involved. Turkey exercised the criminal jurisdiction but France did not agree as it should be France for the captain was a French national. ICJ said that it cannot deny Turkey the jurisdiction to hear the criminal case as it makes a restriction of its sovereignty. To restrict must be grounded on CIL..Was there a CIL involved when CIJ opined? Not so much whether Turkey can have the jurisdiction but what was settled was the territoriality principle which is even recognized in CIL. To allude that Turkey has the jurisdiction means to divest France the jurisdiction. The court simply said that Turkey can try the case.The exercise of jurisdiction is an attribute of the sovereignty of the states.Lotus, a French Steamer, and a Turkish steamer, collided on the high seas. The Turkish steamer sank and eight Turkish sailors died. The French officer on watch of the Lotus was prosecuted in Turkey. French government argued that the flag state has jurisdiction. Turkey counter-argued that the flag state rule is not exclusive and that it there has been no rule of CIL which gave exclusive jurisdiction of the flag state.

Lotus case:1. Restriction of states sovereignty not presumed. Where there is no CIL that restricts the states sovereignty then it should not be restricted.2. Jurisdiction is territorial, but in the high seas, it is not prohibited for another state to exercise jurisdiction over another states national3. No definite rule of customary international law regarding collusion cases in the high seas (note there are some rules now on collision cases in the high seas under UNCLOS III of 1982). What about abstention by some states to practice a norm, does it offer evidence that the norm is practiced because it is obligatory?Sources of PIL:Primary: international conventions, international custom, general principles of lawSubsidiary: judicial decisions and teachings of most highly qualified publicists

General Principles of LawRecognized by international nationsRefers to both international and common municipal laws.As source of IL: to treat general principles of law, some may have denominated as domestic laws, but transplanted to IL ie. equity a general principle of law, not really a domestic law and used by ICJ as an international law. International law cannot avoid some duplication of the domestic laws.

11-26-14Barcelona Traction Case (Belgium v Spain, 2nd Phase)Comment by msgk-4: The allegation was that Spain committed an internationally wrongful act as it deprived Belgium to institute the case for and in behalf of the Belgian nationals.The ICJ did not find a concrete rule in IL applicable to the issue whether Belgium has the personality to institute the case, but found a municipal rule that was applied by ICJ: only the corporation has the personality to institute as it involved stockholders

Key principles:

In the absence of applicable international law, cognizance msut be given to the relevant institutions of domestic law, otherwise, the ICJ would lose touch with reality, particularly as there are no corresponding institutions of international law to which the Court could make references.

Q: What general principle of law was applied in this case?

In the field of diplomatic protection, international law was in continuous evolution and was called upon to recognize instituions of municipal law. In municipal law, the concept of the company was founded on a firm distinction between the rights of the company and those of the shareholder. Only the company which was endowed with legal personality, could take action in respect of matters that were of a corporate character. A wrong done to the company frequently caused prejudice to its shareholders, but this did not imply that both were entitled to claim compensation. Whenever a shareholder's interests were harmed by an act done to the company, it was to the latter that he had to look to institute appropriate action. An act infringing only the company's rights did not involve responsibility towards the shareholders, even if their interests were affected. In order for the situation to be different, the act complained of must be aimed at the direct rights of the shareholder as such (which was not the case here since the Belgian Government had itself admitted that it had not based its claim on an infringement of the direct rights of the shareholders).

Judicial Decisions and Publicists:Subsidiary means onlyComment by msgk-4: Actually source direct but only subsidiary absence of clear and appropriate primary sources; the first interpretation/treatment: it is a source of IL but the school of thought is it provides guidances, where to locate the norms of IL, instead looking at it as a legal source, it should be looked at as a material source. Some authors would suggest that this would be perceived as a material source as they are only opinions but IL talks of acts done by states.There is no stare decisis in IL and it is confirmed by Article 59 of the ICJ Statute. The decision of the court has no binding force except those of the parties.Subject to article 59 of the Statute of the ICJ (the decision of the Court has no binding force except between the parties and in respect of that particular case); in other words, there is no doctrine of stare decisis in ICJ decisionsICJ decisions are independent of judicial decisions of other newly created tribunals such as the ICC, etc for lack of formal relationships between these tribunals

Other Possible Sources of PIL:Acts of International Organization (ie. UN and its Organs like General Assembly Resolutions)Soft Law (guidelines of conduct which are neither strictly binding norms of law nor completely irrelevant political maxims, ie. UN Declarations, Covenant on Social Economic and Social Rights)Comment by msgk-4: Norms not legally binding but offers a rule of conduct, guidance, that is more relevant in ILEquity (Justice) see The River Meuse Case; Ex aequo et bono: Art 38 (2) ICJ Statute

Ex aequo et bono (Art 38(2), ICJ Statute): a decision in which equity overrides all other rulesComment by msgk-4: Applied to the parties of the case.If equity is general principles of law, why it requires agreement before it is to be applied to the parties? Ex aequo et bono presupposes that there is IL but the parties would agree not to adhere to such rules but adhere instead to the application of equity and justice. If there are no ILs then go to general principlesIn the case of Barcelona Traction, River Meusse, they involved the application of equity (general principles of law) but such equity is not ex aequo et bono under Article 38 (2), ICJ Statute.

Art 38 (2), ICJ Statue:The list of sources in Art 38 (1) shall not prejudice the power of hte Court to decide a case ex aequo et bono, if the parties agree thereto

Q: if equity is a general principle of law and therefore a source of IL that the ICJ can apply, why require agreement by the parties before equity in art 38 (2) may be applied by the ICJ?

Hierarchy of the Sources (Primary and Subsidiary) of PIL:In the travaux preparatoires (prepatory work) of Art 38, it was suggested that the sources as listed should indicate hierarchy of sources but it was not carried out. There was only the agreement to categorize these sources as either primary or subsidiary

Hence, except for just cogens (peremptory and non-derogable norms of general international law), one source is not to be treated as always superior to the other. The sources of international law are not therefore arranged in a strict hierarchical order.

Guidelines in determining which source of PIL prevails over the other:just cogens norms always prevail (Art 53 of the Convention on the Law of treaties, 1969)lex posterior derogat prioriComment by msgk-4: Later law prevails over the earlier lawlex posterior generalis non derogat priori specialiComment by msgk-4: A general law does not abrogate any prior special lawlex specialis derogat legi generaliComment by msgk-4: A special law prevails a general law, regardless of timeconsider desueted (mutual rejection by the parties of a treaty usually due to the emergence of new norm)Bernhardt(1992): if there is a clear conflict, treaties prevail over custom and custom prevails over general prinicples and the subsidiary sourcesComment by msgk-4: Presupposes that the application of a treaty by specific parties.Treaty is a manifestation of the intent of the parties as it is deliberately entered into by the parties and the moment they ratify it, the intent is clear. It is understood by the parties as an exception to the CIL with regard to state-parties.In general, not in the context of applying it as to between parties, CIL may prevail over the treaties.A new CIL will be formed if there is enough practice by the states contrary to the existing CIL.

Just Cogens and Erga OmnesArt 53, Convention on the Law of Treaties (vienna, 1969):A treaty is void if it conflicts with a peremptory norm of general international law, 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.

Examples: prohibition on the use of force, of genocide, slavery, gross violation of the right of people to self-determination, racial discrimination and torture.

Erga Omnesobligations of a state to the international community (ex Not to commit/fail to punish international crimes, not to violate peoples right to self-determination)Comment by msgk-4: Triggered by the application of jus cogens, ie. genocide is jus cogens. Genocide should be punished erga omnes duty toward the international community

Philippine Practice on Sources of ILSec 2 Art II (1987 Constitution):The Philipines renounces war as an instrument of national policy, adopts the generally accepted principle of IL as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.Comment by msgk-4: Incorporation Clause

2 Important Principles:1) Treaties and ILs when they are incorporated in the Phil legal system, they are treated as ordinary statutes. Generally, a later law will have to repeal, amend, modify an earlier law.2) If the law was passed as an exercise of police power, it cannot be departed away by a treaty.

Kuruda v Jalandoni:In accordance with the generally accepted principles of IL of the present day, including the Hague Convention, the Geneva Convention and significant precedents of international jurisprudence established by the United Nations, all those persons, military of civilian, who have been guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses consequential and incidental thereto, in violation of the laws and customs of war, of humanity and civilization, are held accountable therefor. In the promulgation and enforcement of EO No. 68, the President of the Phils. has acted in conformity with the generally accepted principles and policies and international law which are part of our constitution.

The rules and regulations of the Hague and Geneva Conventions form part of and are wholly basaed on the generally accepted principles of IL. In fact, these rules and principles were accepted by the two belligerent nations, the US and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of IL as contained in treaties to which our government may have been or shall be a signatory.

12-03-14US v GuintoComment by msgk-4: State Immunity from Suit maybe justified in 2 reasons: no right can be invoked against the source of that right; not a pragmatic policy to allow people to sue the State because it is wasting the time of the state for public welfare; the state cannot be sued without its consent.The state cannot be sued without its consent is a CIL and the basis is the principle of the co-equality of the states and therefore no local court can exercise a jurisdiction over the sovereignity of another state. This is the basis in IL all states are sovereign.State immunity is CIL and its another aspect is to distinguish between jus imperii and jus getionis. These are the restrictive theory of state immunity. The rule that a state may not be sued without its consent, now expresed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles of international law that we have adopted as part of the law of our land under Article II, Section 2. Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine of incorporation. Under this doctrine, as accepted by majority of states, such principles are deemed incorporated in the law of every civilized state as a condition and consequence of its membership in the society of nations. Upon consequence of its membership in the society of nations. Upon its admission to such society, the state is automatically obligated to comply with these principles in its relations with other states.

In the case of the foreign state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A contrary disposition would, in the language of a celebrated case, "unduly vex the peace of nations."

Jus imperii (governmental) v Jus gestionis (proprietary): there is no question that the USA like any other state, will be deemed to have impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity. It is only when the contract involves its sovereign or governmental capacity that no such waiver may be implied. This was our ruling in US v Ruiz, where the transaction in question dealt with the improvement of the wharves in the naval installation at Subic Bay. As this was a clearly governmental function, we held that the contract did not operate to dives the US of its sovereign immunity from suit.Comment by msgk-4: If the state is engaged in governmental function, it can invoke state immunity; if performing proprietary function, it cannot invoke state immunity

Two-tests to determine whether governmental or proprietary:Purpose Test disregards the nature of the contract; looks at the purpose of the contract; ie. if the purpose is for military defense, then it is governmental; for Philippines, it is more on purpose testNature Test nature of the contract/act that is considered; where the contract is in the nature that it can be performed by a private entity, it is proprietary; if can be performed only by a sovereign state, it is governmental (ie. contract of lease)

Judicial proceeding the parties have no choice as to who will render the decision

Arbitration parties can choose who will decide according to their agreement

Consider ICSID in State ImmunityThe International Center for Settlement of Investment Disputes to which the Philippines is a Party, is an international agreement between states (about 159 signatories now) allowing foreign investors to directly initiate a suit for arbitration or conciliation involving disputes against states (ie. violation by a member state of the fair and equal treatment rule involving foreign investors).

As an international agreement, states have therefore waived their immunity from suit in the cases covered by the ICSID. The ICSID rule, however, requires double consent. The arbitration case will be filed in accredited arbitral bodies (ie. Permanent Court of Arbitration in Hague), not in domestic courts.Comment by msgk-4: 1st consent: State must be a party2nd consent: There must be a infrastructure of that consent (treaty) between the states involved

Restrictive theory of state immunity: purpose test & nature test

Reyes v BagatsingComment by msgk-4: Freedom of expression vs. CILFreedom of expression is an international law and the duty to protect it is a CIL.. General principles of Law are treated as ordinary law in the Philippines.The Phils is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961... The second paragraph of its Article 22 reads: 2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of mission or impairment of its principles of international law as part of the law of the land,... To the extent that the Vienna Convention is a restatement of the generally principles of IL, it should be a part of the law of the land.

Holy See v RosarioThe right of a foreign sovereign to acquire property, real or personal, in a receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on Diplomatic Relations (Art. 20-22). This treaty was concurred in by the Phil Senate and entered into force in the Philippines on November 15, 1965. In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of the receiving state over any real action relating to private immovable property situated in the territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the mission. If this is applicable to the envoy, all the more that this rule is applicable to the sovereign itself, the Holy See.

11/26/12Actio popularis the action to obtain remedy by a person or a group in the name of the general public even without a victim (South-west Africa case); it is not recognized as a general principle of law. In international law, it refers to the action taken by a State in the name of the international community even if it is not directly the victim.Principle of equity in river meuse case: those who come to court must come with clean handsJudicial decisions ICJ decisions are independent of judicial decisions of other newly created tribunals such as icc for lack of formal relationship between these tribunals No doctrine of stare decisis Art. 59 of the statute of the icj: the decision of the Court has no binding force except between the parties and in respect of that particular case Justice Cardozo: nature of international law has an existence like the common law, hardly distinguishable from morality or justice; Justice Cardozo: international law or the law that governs between states, has at times, like the common law within the states, a twilight existence during which it is hardly distiguishable from morality or justice, til at length the imprimatur of a court attests to its jural quality (New Jersey v Delaware)Comment by msgk-4: It is something that just appear in a legal document but rather it is something to be discovered until the court applies it.

Soft law for example: declarations about the environment; UN declaration of human rights True hard laws: customary international law and conventional law (w/ legal consequences)

Judging a case ex aequo et bono important consideration is agreement of the parties

Custom is a practice that states believe themselves to be under a legal obligation to follow (opinio juris)Usage practice but w/o a legal obligation, without (absence of) opinio juris

Jus cogens is always superior to other sources of international law.

Thus, treaties and custom are of equal authority; the later in time prevails. This conforms to the general maxim of lex posterior derogat legi priori (a later law repeals an earlier law). However, in deciding possible conflicts between treaties and custom, two other principles must be observed, namely lex posterior generalis non derogat priori speciali (a later law, general in nature, does not repeal an earlier law which is more special in nature) and lex specialis derogat legi generali (a special law prevails over a general law).

However, if there is a clear conflict, treaties prevail over custom and custom prevails over general principles and the subsidiary sources.

Jus cogens e.g. prohibition on the use of force, of genocide, slaveryErga omnes norms (obligations of a state to the international community) e.g. Duty to punish genocide.

The Philippines incorporates generally accepted principles of international law as part of the law of the land and transforms other sources of international laws by a legislative act.

12-10VCLT came into force on January 27, 1980As a convention, the value of VCLT has been rather limited. Its importance lies in the fact that most of its provisions attempt to codify the customary law relating to treaties, although there are other provisions (ie. Article 9 (2)) which represent a progressive development rather than a codification of the law.

Full powers a statement that a representative is duly authorized to enter into treaty; a document emanating from the competent authority of a state designating a person or persons to represent the state for negotiating, adopting, authenticating the text of a treaty, expressing the consent of a state to be bound by a treaty, or for accomplishing any other act with respect to that treaty.

Article 7 (2) provides that heads of state, heads of government, and ministers for foreign affairs are, by virtue of their functions and without having to produce full powers, considered as representing their state for the purpose of performing all acts relating to the conclusion of a treaty.Comment by msgk-4: A person is considered as representing a State for the purpose of ... expressing the consent of the State to be bound by a treaty if:a) he produces appropriate full powers; orb) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.Comment by msgk-4: Deemed authorized even without full powers, for purpose of performing all acts

Adoption of the text of the treaty extent of no implied authority of representatives. There are several stages in the formation of a treaty and these stages are all acts. But if the representative (ie. heads of diplomatic mission) has no full authority to perform all acts, the effect is, the State is bound only up to the adoption of text of the treaty.

Authentication refers to the process by which the text of a treaty is established as authentic and definitive. Once a treaty has been authenticated, states cannot unilaterally change its provisions. If states which negotiated a given treaty do not agree on specific procedures for authentication, a treaty will usually be authenticated by signature, signature & referendum or the initialling by the representatives of those states.

Accession act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states.

Entry into Force means the beginning of the private force of the treaty as law between the parties

3 cases where reservation is not allowed when the treaty prohibits reservation, when the reservation is not compatible to the purpose and object of the treaty, when the treaty enumerates certain aspects where reservation is not allowed and the reservation made by the party is covered by the prohibited reservation,

Q: May the rules in the Vienna Convention on the Law of Treaties be applied in the following?a) a dispute involving a treaty between State A and the IMF-World Bankb) A dispute involving a 1960 treaty between State A and State BComment by msgk-4: (Rebuc Sic Stantibus) Article 62, VCLT:1) A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; andb) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.2) A fundamental change of circumstances may not be invoked as a ground for terminating or withdarawing from a treaty:a) if the treaty establishes a boundary; orb) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.c) A dispute involving a 1995 treaty between State A and State B which are not parties to the VCLT?

(a) Yes, there are elements of a treaty found in the VCLT but that is only for the purpose of determining if the treaty is covered by VCLT (to be governed by VCLT, that is only the purpose of the elements laid down in the VCLT). That provision is not a definition of a treaty, it is a definition only for the purposes of VCLT. The treaty between State A and the IMF-World Bank is the law between them and must be valid and respected, althought not covered by the VCLT.

(b) If there is a fundamental change that affects the very subject of a treaty, may State A asked for either determination or suspension of the treaty on account of fundamental change? And the fundamental change in the treaty as found in Article 62 of the VCLT, will that be applicable? Can that be invoked by State A?

Article 62 will not be applied but pacta sunt servanda which is actually found in Article 62 will be applied. Pacta sunt servanda (promises must be kept) is already a established law as well as rebuc sic statibus (fundamental change). These are CIL. The rule in 62 may actually be a qualification to the CIL and therefore it is still applicable.

(c) Yes those involving provisions under VCLT that are codifications of the CIL will apply to states even if not parties to the VCLT. VCLT is both a codification of CIL & progressive development of CIL. Examples of the provisions in the Vienna that are codifications of CIL are, Article 62 on fundamental change, pacta sunt servanda and material breach.

Q: Is an agreement which the nature of a treaty but is not reduced to writing a treaty? Is it binding on the state parties to the agreement?

The basic nature of a treaty is that, there is an intent to be governed by international law and intent to create a international legal obligation. If the treaty is not in writing, is it still a treaty? The elements of a treaty are not for the purpose of the binding effect, the only purpose of the enumeration of the elements, international agreements entered into by states, in writing, to be governed by international law, that is only for the purpose of applying the provisions of the VCLT. VCLT is both a codification of existing CILs and a progressive development of CIL. In fact, some authors have even indicated that probably at this time those merely evidences of the progressive development of CIL, may not actually ripen into CIL. Remember VCLT entered into force, on January 27, 1980. Mere minutes of negotiation and agreement of terms, in Qatar v Bahrain case, though not entered into as a treaty (the minutes) in accordance with the elements of a treaty under VCLT, was still considered as binding. See Article 3, either entered into by states and other subjects of international law (ie. international organization) are not covered by VCLT (because it should be between states for VCLT to cover) or those not in written form (not governed by VCLT); it provides that VCLT shall not affect the legal force of such agreements. Even if it is not in writing, even if it is entered to by and between non-states, does that not mean that it is not binding, it simply means that it is not covered by VCLT. You will see that there are provisions in the VCLT that are not codifications of CIL, good examples of the codifications of CIL, are Articles 62, rebus sic stantibus, pacta sunt servanda, material breach, reservation that is incompatible of the object and purpose of the treaty such reservation is prohibited. There are provisions however that are not codifications of CIL, examples: consent to be bound involving linkage or convention in in the international conference, in the adoption of the text of the treaty under article 9 there are two rules here involved: unanimity rule and the 2/3 rule. Under unanimity rule, the adoption of the text of the treaty takes place by the consent of all the states participating in its drawing up. Or 2/3 in the international conference.Comment by msgk-4: International Agreements Not Within the Scope of the Present ConventionThe fact that the present Convention does not apply to international agreements concluded between States and other subjects of international law or between such other subjects of international law, or to international agreements not in written form, shall not affect:a) The legal effect of such agreements;b) The application to them of any of the rules set forth in the present Convention to which they would be subject under international law independently of the Convention;c) The application of the Convention to the relations of States as between themselves under international agreements to which other subjects of international law are also parties.

Initiation of a treaty may be done at the instance by a state, international organization or by the United Nations. How it was initiated may also govern the name given to the treaty. In that situation, we can adopt the text of the treaty only when all of the parties agree on the text of the treaty, that is under the unanimity rule of Article 9 but whereas for example, all of the parties being members of an international organization, ie. WTO, every now & then member-states enter into treaties usually for trade agreements, meaning there will be conferences every now & then. So lets say theres a call for an international conference for all the members of WTO and we agree on a trade agreement and that becomes a treaty. How to conduct it will apply the 2/3 rule, that is the second way of adopting unless by the same vote of 2/3, there will be another way, ie. higher than 2/3. This rule of unanimity & 2/3 is not CIL. This is an example of progressive development. So you can argue, that from that the time the VCLT was entered into force until today, 34 years had lasted, so they could be CIL.

Q: Australia entered into agreement with the Philippines stiupulating that the Australian Naval Forces lease a Philippines Governments patrimonial property in Subic for its naval and military exercises in the Philippines for 5 years in the amount of 10 M. Is this a treaty? Why or why or not?

No. There is a core nature of a treaty and there are also elements of a treaty for the purpose of VCLT. If you talk about an agreement that is for the purpose of creating international legal obligation and of more or less permanent in nature, these are the core nature of a treaty. Agreements in compliance to the elements or to the core nature of the treaties are all considered as treaties. However, only those that comply with the requisites mentioned in Article 2 (1a) may be governed by VCLT. In this case, we can say, this agreement is not to be governed by the VCLT as it, based on the facts, is not on the nature that shall be governed by IL. Comment by msgk-4: Treaty means an international agreement concluded between States in written form and governed by IL, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

We have to look at the agreement whether the parties agree to be bound with the municipal law, the intention of the parties here, is that they shall be governed by domestic law and not IL. VCLT will not govern. The next question, is it a treaty nonetheless? Even if it is not governed by VCLT? No, it is not a treaty because it is now the core nature of the treaty that is involved, assuming from the agreement we will see the intent is not to be governed by IL and not to create international legal obligations.

Article 3, VCLTArticle 62 ie. of a codification of CILArticle 9 adoption ie of not a codification of CIL

What is the difference between a signatory from a party to a treaty?Comment by msgk-4: What is a signatory ad referendum? Subject to ratification

Signatory is one who signed while a party is one who continued to be a signatory when the treaty had already entered into force.

Distinguish signature from ratification. What is signature ad referendum?Comment by msgk-4: Where the signature is subject to ratification, acceptance or approval, the signature does not establish the consent to be bound. However, it is a means of authentication and expresses the willingness of the signatory to continue the treaty-making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty.

Referendum essentially requires some sort of approval. So when you say signature ad referendum, it is a signature that is still subject to a ratification. Philippines for example, is authorized but not on the text, signs, the Philippines is now a signatory to the treaty. But if the Philippines requires ratification, then there is another stage after the signature, the ratification. Ratification is confirming the signature of the representative, after which the instruments of ratification are exchanged, then that is the process of ratification.

Distinguish treaty law from law of treaties.

Treaty law refers to the content of the treaty, you are referring here to the specific provisions of a treaty or conventions dealing with a particular subject matter (ie. Treaty Law on Genocide, Piracy what parties have agreed upon on a particular subject). Law of treaties, you are talking about that general law on nature, effectivity, adoption and other aspects of treaties in general. VCLT is a codified law on treaties, partly.

Treaties not covered by VCLT are covered by CIL. The way to interpret VCLT would be to refer to preparatory work of international law commission.

For purposess of application of VCLT, the requisites of a treaty is found on Article 2(1a) of the VCLT.

Treaties

Treaties come in various names: agreement, pact, understanding, protocol, charter, statute, act, covenant, declaration, engagement, arrangement, accord, regulation, and provision.

Law-making treaties (vs. Contract treaties) are sources of international law as between the parties.

Treaties may be codifications of already existing CIL or are themselves evidence of the practice of an emerging CIL especially in the case of multilateral treaties;

Other agreements may be called treaties by CIL or by other international persons, but they are not covered by the VCLT.

Read: 1969 Vienna Convention on the Law of Treaties (entered into force on January 27, 1980)

VCLT applies only to treaties after entry into force (Article 4) Before the VCLT, the law of treaties had been CIL. The VCLT is both a codification work of CIL and a progressive development of IL. The travaux preparatoires was carried out by the IL Commission (ILC), so its commentary is one of the best sources of interpretation of the VCLT A treaty per VCLT is an international agreement concluded between States in written form and governed by IL, whether emodied in a single instrument or in two or more related instruments, and whatever its particular designation. The VCLT is in itself a treaty.Formation of treatiesComment by msgk-4: Formation of treaties:1) Convention2) Thru International Organizations3) Upon the instance of UN--Special Territory ie. Hongkong, Macau ( They are parties in World Trade Organization), Taiwan These are territories that are not considered as states but with international recognition but they can enter into treaties What is the importance of negotiation?The adoption of the text of the treaty will provide provisions such as how to be bound, etc. The people who can adopt have implied powers to perform all acts Proposal to draft a treaty; Negotiation and drafting of the terms; Adoption and Authentication of the text of the treaty by the individual states; Ratification of the treaty by the individual states Exchange of instruments of ratification and entry into force of the treaty Accession to the treaty by states wishing to join after its entry into force, if anyArticle 6 of VCLT declares that states have inherent capacity to enter into treaties. This is a CIL. Thats why later on when we study the elements of states, we want to know which communities or groups qualify a state. One important consideration is whether some of the inherent rights of the states can be exercised. One of the inherent rights ofcourse is its capacity to enter into treaties.

12-15

A treaty can be initiated by a state or international body. A state can propose terms to another state and if the latter agrees, a bilateral treaty is created. If there are three or more parties then, it is a multilateral treaty. Or upon the instance of the UN, then thru a resolution, member-states of UN can hold a conference where they would be negotiating terms and conditions of a treaty and usually, that is a multilateral treaty, but will bear a name called, convention. Another way of treaty proposal is, thru international organizations, can be non-governmental or other organizations, ie. Red Cross the one that initiated the formation of Geneva. You can talk of Green Peace, of Amnesty International or other non-governmental organization. You can also have a world organization, like the WTO.

Who can participate in the negotiation? In regard to states, who could participate when these states are federal states, ie. US may California as a separate state initiate the formation of a treaty? The International Law Commission wanted to specify in the 1969 VCLT that in case of federal states, there should be a provision that member-states of federal states may be allowed to initiate the negotiation of a treaty or convention which is also allowed by its Constitution but there were objections made since in that case you would be allowing an international tribunal, ie. the ICJ to interpret the Constitution of the state to determine whether the member-states of the federal states will be allowed to negotiate in the formation of a treaty.

Two kinds of authority: implied & apparent. There are officials that have implied authority to negotiate but there are officials that are considered with authority but it is only apparent and subject to limitations.

What about irregular states territories that are not states for purposes of the application of the elements of the 1933 Montevideo Convention on the rights & duties of the states but they have international personality. Special territories such as HongKong, Macau, Taiwan were allowed to enter into some treaties. Even non-state actors are allowed to enter into treaties.

What is the importance of negotiation? There is a need to know the whole process of negotiation, travaux preparatoires, for the purpose of interpretation the treaty. The difficult part is interpreting intent because some treaties have long periods of effectivity of the treaties. Therefore, negotiation is important.Comment by msgk-4: Interpretation of a treaty: Verba Legis look at the text; Next is look at the intent, contemporaneous acts, whole process of the negotiation, the preparatory work (travaux preparatoires)

Adoption of the text of the treaty two modes to adopt: consent of all parties, 2/3 rule participated in the international conference. There are two modes because the second mode is applicable in cases of international conference. What is the legal significance of the adoption of the text of the treaty? We want to know whether the treaty says that consent to be bound is obtained by signature, or by ratification or the methods of accession, or how to reserve, or who may accede. So there is a need to look into the text of the treaty to know the answers. The way to tell when there is entry into force is to go back to the treaty. Hence, the legal significance of the adoption of the text of the treaty, is that, it will now govern all other stages following the adoption of the text of the treaty.

Authentication who can adopt the text of the treaty? Head of State or Head of Government or Ministers of the Foreign Affairs they have implied authority because by the very nature of their position they have authority to perform all acts, so they can adopt the text of the treaty. And all others who have simply apparent authority, ie. heads of diplomatic missions, it has authority but limited only to the adoption.

Assume that the text of the treaty provides for signature as the mode of expressing consent to be bound, lets assume that all states have already signed the treaty and the signature is not ad referendum, is the treaty now binding between the signatories? The treaty although may not yet be binding upon states in so far as the terms and conditions of the treaty (because the treaty becomes binding only upon it has entered into force), there is this Article 18 of VCLT, upon signature, there is effectivity of undertaking that all states are barred from performing acts that will defeat the purpose and object of the treaty, what is purpose and object of the treaty? When the state signed a treaty, article 18 now comes into play, what can the state do in order not to be bound at all of article 18? It shall have made its intention clear not to become a party to the treaty.

Kinds of Full Powers: Express Powers Implied Powers Apparent PowersArticle 7, VCLT:1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:a) He produces appropriate full powers; orb) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powersComment by msgk-4: Apparent authority

2) In virtue of their functions and without having to produce full powers, the following are considered as representing their State:a) Heads of State, Heads of Government, and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;c) Representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.

There are instances, where especially if the states are very active in conferences and multinational organizations, some officials are known to be the official representative of a particular state and for that state concerned, if the states believed as a matter of practice you have been authorized, states can presume that you are duly authorized to represent the state. Its not common for states to simply rely on apparent authority.

Article 8, VCLT:

An act relating to the conclusion of a treaty performed by a person who cannot be considered under Article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State.

Article 8 is a CIL.

There are two methods of adopting: unanimity & 2/3 rules. The ILC in its commentaries, as early as 1966 characterized this variance in the method of voting as progressive development of IL. When they adopted Article 9, it was not CIL at that time. So ILC was proposing a development in IL. It is being practiced by states probably, thats why I said, that this may have become CIL.

All other matters that relate to the formation of the treaty and should take effect before its entry into force, may be governed by the text of the treaty, such as, how to make reservation, how to accede, these are governed by the text of the treaty. So thats the legal significance of the adoption of the text of the treaty

The authentication part is not mandatory, not usually observed as a mandatory stage. It will be done for purposes of assuming the parties who adopted the text of the treaty that after adoption, the same text will be subjected to other process, such as signature. Its only purpose is to make sure that the same text adopted will be the same and will be the exact document that will be subjected to the next step. That is authentication.

How does express its consent to be bound? It depends upon the text of the treaty. Otherwise, it should be either by signature under Article 12, exchange of instruments under Article 13, Ratification, Acceptance, Approval under Article 14 when the signature is ad referendum, but if the text of the treaty will say that upon signing of the representative shall already be considered as the act of expressing its consent to be bound, then there will be no authentication, acceptance or approval. Remember that when we say ratification it is not the same as that understood in municipal laws. Accession under Article 15 is also an expression of consent to be bound.

The text of the treaty may say that its entry into force will be upon the ratification of the 20th State, or its entry into force will be made immediately upon accession of a third state. In other words, in so far as the third state is concerned, the treaty has entered into force whereas for the negotiating states, it has not entered into force. This depends upon what is found in the text of the treaty.

Ratification at this level, as defined is not the same at the domestic level. It is when the instruments of ratification are exchanged between the contracting parties. There are two ways: literal exchange or thru UN depositary. That is the operative act of ratification.

Is the consenting State bound by the terms or substantive provisions of the treaty after it has expressed its consent to be bound? Not yet, the entry into force can be duly delayed and it has to be effected first, but there is Article 18, that while the provisions are not yet operative, states are obliged to refrain from acts which would defeat the object and purpose of a treaty. This covers two situations: A) After signing the treaty and where the signature is subject to ratification, acceptance or approval (there are two kinds of signature: signature that does not need ratification, acceptance or approval and signature ad referendum; if the signature under the text of the treaty is still to be subject to approval by the concerned states, then there is a period from the signing up to approval; so if signing was last January 1, 2014 until the approval, acceptance or ratification is done, within that period, the State is obliged to refrain any act that would defeat the object and purpose of the treaty.) If it wants to defeat the object and purpose of the treaty, it may do so by stating clearly and categorically that it is no longer intending to be bound to become a party to the treaty. It shall manifest clearly its intent not to become a party. Now you can perform any act that defeats the object and purpose of a treaty without facing state responsibility. B) There is expression of the consent to be bound where for example, lets talk about the signature, and where the text of the treaty provides that expression of the consent to be bound is thru signature and no signature referendum is allowed. So upon signature, all states have expressed the consent to be bound, between expression of consent to be bound up to the time the treaty will enter into force, states are obliged to refrain from acts which would defeat the object and purpose of a treaty. The problem as observed by most authors, what do we mean by object and purpose of a treaty? It consists of both permissive (soft) and mandatory (hard) rule because the word used is refrain, that is negative, meaning doing nothing; the other word is defeat, a mandatory requirement. Examples of this would be: if a treaty involves a territory and under the treaty it says that for 50 years this particular island of state A shall be under the administration of state B and after 50 years, that will be given back to state A. If State A enters an agreement regarding the same island with state C, then such act defeats the purpose of the treaty between states A and B. If you look at the purpose of the treaty, state B will administer the island, but if within this period of time, state A ceded the same island to state C, that act is definitely an act that will defeat the purpose of the treaty. Why is that important? It is important because while the treaty has not yet entered into force, it has an obligation (Article 18) and a breach of this obligation will constitute an internationally wrongful act. In IL, the moment there is breach of the obligation, that will trigger the application of another international law document, which is the draft article of state responsibility where you can hold the breaching state responsible and you can ask various methods where such responsibility may be compensated. It could in fact ask for reparation. You can ask for repairing the damage.

Entry into force it will enter into force depending on the agreement of the negotiating parties as found in the text of the treaty. Normally, the treaty will provide. In a rare intance that there is nothing provided in the treaty, then Article 24 (2) provides that it will enter into force as soon as all the negotiating states have expressed their consent to be bound. Then we go back to the treaty again as to the type of expression of consent to be bound. What if it is also cited, so we are looking at formerly drafted treaty, there is no provision as to entry into force, and it seems like Article 24 will have to bring you back to methods of expressing consent, so it is also cited, so it will be upon the exchange of instruments of that nation. How about third states which are not parties but accede? When shall treaty enters into force with regards to third state? Go text of the treaty, if no provision, upon expression of consent found by accession.

In the signing the treaties, ie. signature, whether as expression of consent to be bound, whether ad referendum or otherwise, or signature subject to ratifcation, acceptance or approval, or in any way expression of consent to be bound is done, there are these subjects or terms: RUDs

Reservation, Understanding and Declaration. These are important.

What is the difference among reservation, understanding and declaration?

When you make a reservation, the state makes a reservation for the purpose of not applying a particular provision of a treaty, to that state. It is not that the state disagrees, only maybe there are concerns usually at the domestic level that would impel the state to make a reservation that this particular provision will not be applied to the state making the reservation.

RUDs are common especially in bilateral treaties. It would be a simple case to make a proposal, counter-proposal, etc. The problem is when it is a multilateral treaty as there are several parties involve and states have various and differing agenda. A lot of states have different interests to be protected at the domestic level and to be advanced at the international level. It is very seldom to draft a treaty where the state can have a take it or leave it provision. IL recognizes the possibility of states agreeing on certain provisions but making reservations of certain provisions that will not serve their interest.

If you say, the state makes reservation, it means a particular provision of the treaty will not apply while the rest applies.

Understanding and declaration are different from reservation because in both, the provision is not considered as not applicable to the state making understanding and declaration. They clarify under what context a particular provision will be applied to that state. In reservation, a provision will apply but in understanding or declaration it will apply but it is to be applied in a particular way or context depending on the understanding or declaration. Example: if the state making an understanding is a federal state, and under the treaty the provision that is subject of understanding requires all state parties to pass a legislation, ie. a trade treaty and there is a time-table that 2 years from now all state parties are required to pass a legislation about a particular method of trading. A federal state has at least two levels of legal sytem, one federal, the other is local. So probably, the federal states will make an understanding, that, they are willing to abide by the provision that within 2 years a legislation will be passed regarding the trading method. But our understanding for this one is, it is for the federal government to pass a legislation and therefore if some of the states will not pass certain legislation, the federal legislation will not have an effect. This is a breach.

When is reservation allowed and when is reservation not allowed?

VCLT provides for the various ways for which reservation may not be allowed. The right of the state to make a reservation, is already a CIL. It is part of the rights of states (under 1933 Montevideo Convention, one of the inherent rights & duties of the states, is right to enter into treaties, right to send diplomatic officials, to contract treaties). Corrollary to the right to enter into treaty is also the right not to be bound, to make reservation of the treaties. Hence, it is part of the sovereign powers of the state. And it is a CIL. That is why, limitations would be 1) as provided for in the text of the treaty 2) CIL: treaty itself provides that no reservation is allowed; reservation is allowed but only in regard to the different subject listed down in the treaty, so that when reservation is made but not one of those so allowed, that becomes a prohibited reservation. These are the instances when reservation is not allowed. The third instance is CIL but codified: where the reservation would be incompatible with the purpose and object of the treaty. However, reservation can be a bit complicated where it is subjected to different reactions of the states. Some states will perhaps agree, some will object.

What would be the effect if some states will object to the reservation? Between the reserving states and the parties who object? What would be there relationship? Reservation is done in signing, ratifying, accepting, acceding, approving. Whereby it purports to exclude or modify the legal effect of some provisions of a treaty in the application to the state. The advisory opinion