Republic of the Philippines
Western Mindanao State University
COLLEGE OF LAW
PUBLIC INTERNATIONAL LAW
COURSE OUTLINE
I. General Nature- Definition and Function
A. International Law Defined
- Restatement (Third) of Foreign Relations Law of the United States, which U.S. courts
generally consider as the most authoritative work on the subject, defines international law
as the law which deals “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.”
- a body of rules and principles of action which are binding upon civilized states in their
relations to one another.
- States are the sole actors
- sovereign states remain as the principal subjects of international law; but they are now
joined by international organizations and even by individuals.'
B. Need for International Law
- Regulation of space expeditions, the division of the ocean floor, the protection of human
rights, the management of the international financial system, and the regulation of the
environment. Beyond the primary concern for the preservation of peace, it now covers all
the interests of contemporary international and even domestic life.
C. Function of International Law
- To maintain International Peace and Security. To provide fundamental freedom and
human rights. To refrain from the threat or use of force by a state against the territorial
integrity or political independence of any State.
D. International Law as True Law
- There is a conflicting view: For older theorists like Thomas Hobbes, Samuel Pufendorf
and John Austin – It is not true law because there is no sovereign supranational body to
enforce International law and that there is a lack of an enforcement mechanism. For the
recent thinkers – it is recognized as law in practice and the sanctions for failing to comply,
although often less direct, are similar to those of municipal law.
- THEORIES ABOUT INTERNATIONAL LAW (not part of the course outline, for my own
consumption only)
If international law is a law, what is its theoretical basis or what makes it a law?
a. Command theory. law consists of commands originating from a sovereign and
backed up by threats of sanction if disobeyed. In this view, international law is not law
because it does not come from a command of a sovereign. Neither treaties nor
custom come from a command of a sovereign. This theory, however, has generally
been discredited. The reality is that nations see international law not as commands
but as principles for free and orderly interaction.
b. Consensual theory. Under this theory, international law derives its binding force from
the consent of states. Treaties are an expression of consent. Likewise, custom, as
voluntary adherence to common practices, is seen as expression of consent.5 In
reality, however, there are many binding rules which do not derive from consent.
c. Natural law theory. The natural law theory posits that law is derived by reason from
the nature of man International law is said to be an application of natural reason to
the nature of the state-person. Although the theory finds little support now, much of
customary law and what are regarded as generally accepted principles of law are in
fact an expression of what traditionally was called natural law.
d. In the ultimate analysis, however, the best answer is pragmatic. Fundamentally, there
is a general respect for law and also there is concern about the consequences of
defiance either to oneself or to the larger society. International law is law because it is
seen as such by states and other subjects of international law.
E. Binding Force of International Law
- Brierly adds: “The ultimate explanation of the binding force of all law is that man, whether
he is a single individual or whether he is associated with other men in a state, is
constrained, in so far as he is a reasonable being, to believe that order and not chaos is
the governing principle of the world in which he lives.”
- Generally, the purpose of international law is to regulate the relationship between States
and, therefo re, it is binding upon States. By signing and ratifying the Charter, countries
agreed to be legally bound by resolutions passed by UN bodies such as the General
Assembly and the Security Council.
F. International Law Distinguished from Other Subjects
- Public and private international law.
A distinction should be made between public international law, sometimes referred to only
as international law and which is the subject matter of this book, and private international
law, more commonly called conflict of laws. Public international law governs the
relationships between and among states and also their relations with international
organizations and individual persons. Private international law is really domestic law
which deals with cases where foreign law intrudes in the domestic sphere where there
are questions of the applicability of foreign law or the role of foreign courts.
G. Conflict between International Law and Municipal Law
H. Doctrine of Incorporation vs Doctrine of
Transportation
II. Sources of International Law
A. Codification of International Law
- codification of international law refers to the more precise formulation and
systematization of rules of international law on subjects that have already been
extensively covered by State practice, precedent and doctrine.
B. Conventions and Treaties – read further on the reviewer page 322 & 325
Another important source are treaties or international agreements, whether bilateral or
multilateral. Treaties determine the rights and duties of states just as individual rights are
determined by contracts. Their binding force comes from the voluntary decision of sovereign
states to obligate themselves to a mode of behavior. While treaties are generally binding only
on the parties, the number of the contracting parties and the generality of the acceptance of
the rules created by the treaty can have the effect of creating a universal law in much the
same way that general practice suffices to create customary law.
The question is sometimes asked whether treaties are law or are merely obligations which the
law says must be carried out. On the basis of this question, a distinction is made between
contract treaties” or “law making treaties.” The distinction, perhaps, is not very useful because
all treaties must be observed by the parties under the principle of pacta sunt servanda ----
agreements must be kept; it means that every treaty is binding upon the parties and they
must be executed in good faith. Cannot invoke domestic laws as justification.
Normally, treaties and custom can be complementary. As seen, for instance, in Nicaragua v.
United States, adherence to treaties can be indicative also of adherence to practice as opinio
juris. What happens, however, when treaty and custom contradict each other?
If a treaty comes later than a particular custom, as between the parties to the treaty, the treaty
should prevail. A treaty manifests a deliberate choice of the parties and the principle of pacta
sunt servanda should be followed.
However, if a later treaty is contrary to a customary rule that has the status of jus cogens,
custom will prevail. This is because of Article 53 of the Vienna Convention on the law of
Treaties: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the present Convention, a peremptory norm of
general international law is a norm accepted and recognized by the international community
of States as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same character.
C. Resolutions and Declarations
D. International Customs – read further in the reviewer page 322
E. General Principles of Law --- read further in the reviewer page 324
Restatement as “general principles of law recognized by or common to the world’s major legal
systems.” This has reference not to principles of international law but to principles of
municipal law common to the legal systems of the world. They may, in a sense, be said to
belong to no particular system of law but are evidence rather of the fundamental unity of law.
Most of these principles, however, have either become part of customary law or have been
incorporated into conventional international law.
The Restatement refers to them as “supplementary rules of international law.” These may be
found in “judicial decisions and the teachings of the most highly qualified publicists of the
various nations” which the Statute refers to as “subsidiary means for the determination of
rules of law.”
F. Judicial Decisions
Article 38 of the Statute directs the Court to apply judicial decisions as subsidiary means for
the determination of the rules of law. But this is made subject to Article 59 which says that
“the decisions of the court have no binding force except between the parties and in respect of
that particular case.” Hence, such decisions do not constitute stare decisis (to stand by what
has been settled).
G. Writings of Publicists
In many cases of first impression, the only authorities that can be cited are writers. The extent
to which they are referred to depends on the tradition of the court or of individual judges.
“Publicists” are institutions which write on international law. They also play a role. The more
significant ones are: The International Law Commission, an organ of the U.N.; the Institut de
Droit International, the International Law Association, a multinational body; the (Revised)
Restatement of Foreign Relations Law of the United States; and the annual publication of the
Hague Academy of International Law. It should be noted, however, that these institutions are
generally government sponsored; hence, they bear within themselves a potential for national
bias.
H. Unilateral Acts of State
A unilateral act of State may be defined as an expression of will emanating from one
State or States which produces legal effects in conformity with international law.
A unilateral declaration binds the State internationally only if it is made by an authority
vested with the power to do so. By virtue of their functions, heads of State, heads of
Government and ministers for foreign affairs are competent to formulate such declarations
III. Subjects of International Law
A. Individual as a Subject or Object of International Law
B. Individual Responsibility in International Law
C. Command Responsibility
D. International Protection of Human Rights
E. States a. Definition b. Elements c. Creation
F. The Vatican City and the Holy See
G. Colonies and Dependencies
H. Territories under International Control or Supervision
I. The United Nations
a. Historical Development
b. UN Charter
c. Purposes
d. Membership
e. Organs
i. General Assembly
ii. Security Council
iii. Economic and Social Council
iv. Trusteeship Council
v. The Secretariat
vi. International Court of Justice
J. International Administrative Bodies
a. International Law Commission
b. Legality of the Threat or Use of Nuclear Weapons Opinion
IV. Recognition of States and Governments
A. Recognition of a State: Declaratory or Constitutive
B. Recognition is a Political Act
C. Recognition: De Facto
D. Recognition: De Jure
E. The Estrada Doctrine
F. Recognition of Insurgency
G. Recognition of Belligerency
H. Forms of Recognition
I. Consequences of Recognition
V. Continuity and Succession of States
A. State Continuity
B. State Succession
C. Succession as to Treaties
D. Succession of States to Membership in International Organizations
VI. Rights, Privileges and Duties of International Persons
A. Fundamental Rights of States
B. Definition of Rights and Duties of States
a. Right of Existence
b. Right of Self-Defense
c. Collective Self-Defense
d. Right of Independence and of Self-Determination
C. The Problem of Assertion of Domestic Jurisdiction
D. Right of Equality
E. Acts of the State Doctrine
F. Immunity of States and Officials
G. Foreign Minister’s Sovereign Immunity
H. Restrictive Application of State Immunity
I. Personal Immunity of Heads of State
J. Presumed Acts of Waiver
K. Immunity of International Persons
L. Duties of States
VII. State Responsibility and Treatment of Aliens
A. State Treatment of Aliens
B. Reception and Expulsion of Aliens
C. Expropriation of Alien’s Property and Nationalization
D. Nationality of Claim
E. Protection of Alien Companies and Shareholders
F. Expropriation or Nationalization of Alien Properties
G. Expropriation of Contractual Rights
H. Civil and Political Rights of Aliens
I. Duties of an Alien within the State
J. State Responsibility on Contracts with Aliens
VII. Territory of States
A. Concept of Territory
B. Acquisition of Territory
C. Title by Occupation and Prescription
D. Title by Accretion
E. Conquest and Annexation
F. Cession
IX. Jurisdiction of States
A. Personal Jurisdiction
a. The Nationality Principle
b. The Territoriality Principle
c. The Protective Principle
d. Passive Personality Principle
e. The Universality Principle
i. Slavery
ii. Highjacking
iii. International Terrorism
iv. Genocide
B. Jurisdiction over Foreign Armed Forces
C. Jurisdiction over Land Territory
D. Maritime Jurisdiction
a. UNCLOS
b. Universal Acceptance of the Convention
c. Major innovations of UNCLOS
d. Internal or National Waters
e. Innocent Passage in Territorial Sea
C. Criminal and Civil Jurisdiction Over Foreign Vessels
a. English and French Rule
E. Jurisdiction Over Warships and Government Vessels
F. Straits Used for International Navigation
a. Effect of 12-mile Territorial Sea
b. Exclusive Economic Zone Rights, jurisdiction and duties of Coastal State in EEZDelimitation
of EE
c. Continental Shelf
d. Land-locked and Disadvantaged States
e. High Seas
i. Flag of Convenience, Principle of Genuine Link
ii. Immunity of Warships and Government Non-Commercial Vessels
iii. Penal Jurisdiction in the High Seas
iv. Obligations of Ship in the High Seas
v. Right to Visit and Search on the High Seas
vi. Right of Laying and Protection of Submarine cables
vii. Right of Fishing and Obligation to Conserve Living Resources and to Prevent Pollution
viii. Nuclear Tests in the High Seas
f. International Deep Seabed Mining
X. Nationality and Statelessness
A. Multiple Nationality
B. Naturalization
C. Stateless Person
D. Dual Nationality
E. Loss of Nationality
F. Dual Citizenship of Filipinos Naturalized Abroad
XI. Diplomatic and Consular Relations
A. Conduct of Foreign Relations
B. Right of Legation
C. Functions of Diplomatic Missions
D. Consular Relations
XII. Jurisdictional Cooperation and Assistance Among States
E. Extradition
F. Right of Asylum
G. Refugees
H. Letters Rogatory
I. Prosecution of International Crimes
J. Recovery of Claims Abroad
K. Cooperation in the Protection of Marine Resources
XIII. Treaties and Other International Agreements
A. Treaty Making Power of the State
a. Capacity to Enter into a Treaty
b. Negotiation of Treaties
B. Executive Agreements
C. Ratification of Treaties
D. Pacta Sunt Servanda
E. Interpretation of Treaties
F. Principle of Jus Cogens
G. Termination, Suspension of and Withdrawal from Treaties
XIV. Peaceful Settlement of International Disputes
A. Political and Legal Disputes
a. Negotiation
b. Enquiry
c. Mediation
d. Tender of Good Offices
e. Conciliation
f. Arbitration
g. Resort to Regional Arrangements and Other Agencies
h. Judicial Settlement- International Court of Justice
B. Enforcement of Judgment
XV. Use of Force Short of War
A. Self-Help Measures Short of War
a. Retorsion
b. Reprisals Embargo
c. Boycott
d. Blockade
e. Intervention
B. Terrorism, the Latest Threats to International Security
XVI. International Wars
A. Legal Nature of International Wars
B. Renunciation of War
C. Geneva Conventions on Rules of War (1949)
XVII. Internal Armed Conflicts- The International Humanitarian Law
A. Humanitarian Law in Internal Armed Conflicts
