CHAPTER I

INTERNATIONAL LAW : ITS DISTINCTIVENESS

Written Report Submitted by:

Caguete, Alyssa Marie D.
Flores, Noel R.

In partial fulfillment of the requirements for Special International Law

Submitted to:
Atty. Ma. Cristina Gimenez

CHAPTER I INTERNATIONAL LAW ITS DISTINCTIVENESS

I.

The Notion of Public International Law

1. There is a relation between the emergence of international law and emergence of the
State.
International Law is the law that governs and structures the relations between states and
entities analogous to states.
Jus Gentium (Latin, "law of nations") - is a concept of international law within the ancient
Roman legal system and Western law traditions based on or influenced by it. The ius
gentium is not a body of statute law or a legal code, but rather customary law thought to be
held in common by all gentes ("peoples" or "nations") in "reasoned compliance with
standards of international conduct."
According to Gaius:
Every people that is governed by statutes and customs observes partly its own peculiar law
and partly the common law of all mankind. That law which a people established for itself is
peculiar to it and is called ius civile (civil law) as being the special law of that state, while
the law that natural reason establishes among all mankind is followed by all peoples alike,
and is called ius gentium (law of nations, or law of the world) as being the law observed by
all mankind. Thus the Roman people observe partly its own peculiar law and partly the
common law of all mankind.

In the sense that international law, specially customary law, is the common law of
the community of nations, it is the Jus Gentium, but insofar as a considerable body
of treaty or conventional law has emerged, it has grown beyond the natural
convictions that govern the community of nations.

2. Sovereignty in relation to international law

Sovereignty refers to the whole body of rights and attributes which a State possesses in
its territory, to the exclusion of other states, and also in its relations with other States.

Since each state is a sovereign, then international law must be a law of coordination.
States invoke sovereignty to avoid applicability of international law to matters of
domestic competence.
International law can be a guarantee of sovereignty. How? One of the peremptory
norms of international law is the prohibition of encroachment of territorial integrity of
a state. Hence, it guarantees most concrete manifestation of sovereignty which is
territory.

3. International politics vs. international law

International politics - is the way in which sovereign states interact with each other.
International Politics
1.

Maxims or postulates (e.g.

balance of power, principle of selfdetermination) appear to be
norms, but they are not.

2. No clear system of penalties.

International Law
1. Maxims or postulates are norms of
international law.

2. There are penalties and sanctions for

infractions.

4. Claims under international law vs. appeals to international morality

Claims under international law
Reference is made to precedents,
treaties and juristic writings

Appeals to international morality

Reference is made to conscience or justice

5. In international law, normativity is not monolithic

Monolithic - constituting a massive, undifferentiated and often rigid whole / acting as a
single, rigid, uniform whole.
Normatives - standard or norm. Examples are:
Issuances of International bodies (e.g. General Assembly of UN)
Advisory opinions of the ICJ
Nomativity is not monolithic in the sense that there is strictly no infraction resulting from
contrary position. States that comply enjoy the presumption of good faith.
6. Enforcement of international law

In determining whether international law is truly a law, what matters is that whether
or not international law is reflected in the policies of nations and relations between
nations.
According to Rosalyn Higgins (President of ICJ) international law is a process of
decision-making more than it is set of norms.
There is no police forces that goes after recalcitrant nations nor compel compliance,
but simply points to the fact that in every society, there are law breakers.
Whether or not there is a system of penalties is not determinative of the existence of
the law, rather what establishes international law is that it governs behavior.

System of Enforcement
International legal system is decentralized which means that each subject
recognizes no government superior to it.
How does one identify violations of law in such a decentralized system?
Rules of restraint make their influence felt both in self-restraint and in
reconciliation.
Does UN provide for a system of sanctions?
Yes, but only against a particular law-breaking (e.g. act of aggression or
commiting breach of peace)
Horizontal Enforcement of International Law - means that observance of international
law is guaranteed by the disadvantages incurred in its breach, including the termination of
the relations regulated by it and retaliation.
Domestic Legal Operators - refers to the entire state machinery for the enforcement and
application of law. It is the prime enforcement mechanism; has a binding character of
international law.

The enforcement of international law then depends on the resolve of domestic legal
operators to apply to the limits of the mechanisms of the municipal legal system.
Domestic Legal Operators in the Philippines
1. Incorporation clause (Article II, 1987 Constitution)
2. Transformation clause (Article VII, 1987 Constitution)
3. Enactment of domestic legislation giving force to international covenants
4. The adoption of jurisprudential policy of construing statutes to comply with
international law.
5. Crediting ratified treaties with a force and strength equal to statutes
6. The promulgation and adoption of administrative rules pursuant to requirements
of international law
7. Providing in the Rules of Court that courts shall take mandatory judicial notice of
law of nations
8. Constitutionally providing that challenges to the constitutionality of a treaty or
international agreement are dealt with by the Supreme Court en banc.
7. Sources of international law
Article 38 of the Statute of International Court of Justice provides for the sources of
international law. These are:
1. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
2. international custom, as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law.

8. The legal effect of Unilateral declarations:

Nuclear Tests Case (Australia vs. France)
FACTS:
A series of nuclear tests was completed by France in the South Pacific. This action made
Australia and New Zealand to apply to the I.C.J. demanding that France cease testing
immediately. Before the case could be completed, France announced that no further
atmospheric tests would be conducted. On French television, the government also declared
that it had endeavored to ensure that the 1974 tests would be the last atmospheric test.
ISSUE:
Whether a declaration made through unilateral act has the effect of creating legal obligation.
RULING:
Yes. Declaration made through unilateral acts may have the effect of creating legal
obligations. In this case, the statement made by the President of France must be held to
constitute an engagement of the State in regard to the circumstances and intention with
which they were made. Therefore, these statement made by the France are relevant and
legally binding.
It is well recognized that declarations made by way of unilateral acts (Unilateral
Declarations) concerning legal or factual situations may have the effect of creating legal
obligations.
When the intention of the State in making declaration is to be bound according to its terms,
the intention confers the declaration a character of a legal understanding. By this legal
understanding, the State is thenceforth legally required to follow a course of conduct
consistent with the declaration.
Unilateral declaration is BINDING when:
Given publicly
With intention to be bound
Even though not given within the context of an international obligations.
Nothing in the nature of quid pro aquo (this for that) nor any subsequent acceptance of the
declaration, nor even any reply or reaction from other States is required for the declaration
to take effect, since such requirement would be inconsistent with the strictly unilateral
nature of the juridical act by which the pronouncement by the State was made.
9. Resolutions of the General Assembly of the United Nations
The General Assembly
The General Assembly is the chief deliberative, policy-making and representative
organ of the United Nations. Comprising all 193 Members of the United Nations, it
provides a unique forum for multilateral discussion of the full spectrum of
international issues covered by the Charter.
It also plays a significant role in the process of standard-setting and the
codification of international law.

Functions and Powers

The Assembly is empowered to make recommendations to States on international
issues within its competence.
Examples:

Consider and make recommendations on the general principles of cooperation for

maintaining international peace and security, including disarmament;
Initiate studies and make recommendations to promote international political
cooperation, the development and codification of international law, the realization
of human rights and fundamental freedoms, and international collaboration in the
economic, social, humanitarian, cultural, educational and health fields;
Make recommendations for the peaceful settlement of any situation that might
impair friendly relations among nations;

Are GA Resolutions binding on States?

It depends on the nature of the resolution.
Although GA resolutions are recommendatory as a rule, the ICJ has recognized
the binding legal effect of GA resolutions pertaining to:
1.
the admission of new Member States,
2.
voting procedure,
3.
apportionment of the budget,

Resolutions of the GA have no binding effect in the operational realm of

international peace and security.

10. Custom
INTERNATIONAL CUSTOM DEFINED
Article 38, 1, b of the Statute of the International Court of Justice refers to
international custom as evidence of a general practice accepted as law.
The elements of international custom are: first, general practice; second, acceptance
as law. The first is a matter of fact; the second is a matter of intention (psychological
element).
Elements of custom:
1. Duration no particular duration is required provided that the practice be general
and consistent.
2. Uniformity and Consistency Although complete uniformity is not required,
substantial uniformity is, and lack of it is a good ground for denying the existence of
a practice acceptance as law.
3. Generality of Practice may be evidenced by:
Diplomatic correspondence

Policy statements

Press releases

Opinions of legal advisers

Official manuals on legal questions

Comments by governments on drafts produced by the International Law

Commission
Legislation

International and national judicial decisions

Recitals in treaties and other international instruments

Pattern of treaties in the same form

Practice of international organs

Resolutions relating to legal questions by the UN GA.

ILLUSTRATIVE CASES:
The Asylum Case (Colombia vs. Peru)
Facts:
Peru issued an arrest warrant against Victor Raul Haya de la Torre in respect of the crime of
military rebellion which took place on October 3, 1949, in Peru. 3 months after the
rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador
confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the
Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru.
Subsequently, the Ambassador also stated Colombia had qualified Torre as a political
refugee in accordance with Article 2 Montevideo Convention on Political Asylum of 1933
(note the term refugee is not the same as the Refugee Convention of 1951). Peru refused to
accept the unilateral qualification and refused to grant safe passage.
Issue:
Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum based on regional and local customs?
Ruling:
The court held that Columbia did not establish the existence of a regional custom because it
failed to prove consistent and uniform usage of the alleged custom by relevant States. The
fluctuations and contradictions in State practice did not allow for the uniform usage. The
court also reiterated that the fact that a particular State practice was followed because of
political expediency and not because of a belief that the said practice is binding on the State
by way of a legal obligation (opinio juris) is detrimental to the formation of a customary law.
The court also held that even if Colombia could prove that such a regional custom existed, it
would not be binding on Peru, because Peru far from having by its attitude adhered to it,
has, on the contrary, repudiated it by refraining from ratifying the Montevideo Conventions
of 1933 and 1939, which were the first to include a rule concerning the qualification of the
offence [as political in nature] in matters of diplomatic asylum.

The Paquete Habana and the Lola, 175 U.S. 677 (1899)

Doctrine:
When there is no treaty and no controlling executive or legislative act or judicial decision,
resort must be had to the customs and usages of the civilized nations.
Facts:
The district court condemned two fishing vessels and their cargoes as prizes of war. Each of
the vessel running in and out of Havana and sailing under the Spanish flag was a fishing
smack which regularly engaged in fishing on the coast of Cuba. Inside the vessels were
fresh fish which the crew had caught. The owners of the vessels were not aware of the
existence of a war until they were stopped by U.S. squadron. No incriminating material like
arms were found on the fishermen.
When the owners appealed, they argued that both customary international law and writings
of leading international scholars recognized an exemption from seizure at wartime of coastal
fishing vessels.
Issue:
Are coastal fishing vessels with their cargoes and crews excluded from prizes of war?
Ruling:
Yes. The doctrine that exempts coastal fishermen with their vessels and crews from capture
as prizes of war has been known by the U.S. from the time of the War of Independence and
has been recognized explicitly by the French and British governments. It is an established
rule of international law that coastal fishing vessels with their equipment and supplies,
cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and
bringing in fish are exempt from capture as prizes of war.

The Case of the S.S. Lotus (France v. Turkey), PCIJ, Ser. A, No. 10 (1927)
Doctrine:
The rules of law binding upon States emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law .
Facts:
A collision occurred on the 2nd of August 1926 between the French mail steamer Lotus and
the Turkish collier Boz-Kourt. The French mail steamer was captained by a French citizen by
the name Lt. Demons while the Turkish collier Boz-Kourt was captained by Hassan Bey. The
Turks lost eight men after their ship cut into two and sank as a result of the collision.
Lt. Demons was placed under arrest without informing the French Consul-General. Lt.
Demons was convicted by the Turkish courts for negligence conduct in allowing the accident
to occur.
This basis was contended by Demons on the ground that the court lacked jurisdiction over
him.
With this, both countries agreed to submit to the Permanent Court of International Justice,
the question of whether the exercise of Turkish criminal jurisdiction over Demons for an
incident that occurred on the high seas contravened international law.

Issue:
Does a rule of international law which prohibits a state from exercising criminal jurisdiction
over a foreign national who commits acts outside of the states national jurisdiction exist?
Ruling:
No. It is impossible to hold that there is a rule of international law that prohibits Turkey from
prosecuting Lt. Demons because he was aboard a French ship.
Hence, both states here may exercise concurrent jurisdiction over this matter because there
is no rule of international law in regards to collision cases to the effect that criminal
proceedings are exclusively within the jurisdiction of the state whose flag is flown.
PCIJ ruled that Turkey may use the territoriality rule to obtain jurisdiction over Lt. Demons.

Case Concerning Right of Passage over Indian Territory, Portugal v. India (1960)
ICJ 6
Doctrine:
International custom resulting to international law.
Facts:
Portugal had several small enclaves of territory within India, one on the coast but the others
inland.
Portugal alleged that they have right of passage over Indian land which they alleged India
interfered with, violating sovereign rights of Portugal. Portugal alleged that the restrictions
India had imposed in regard to the passage of Portuguese through Indian territory made it
impossible to exercise her sovereign rights over the Portuguese enclaves that surrounded
the Indian territory through which passage was sought.
Issue:
Whether Portugal has a customary right of passage over Indian territory to administer the
enclaves.
Ruling:
Yes due to constant and uniform practice.
India argued before the Court that practice between only two states was not sufficient to
form a local custom. The Court rejected this reasoning, finding no reason why a century and
a quarter of practice based on mutual rights and obligations was insufficient for local custom
to arise. This local practice, thus, prevailed over any general rules.
The court observes that with regard to private persons, civil officials and goods, there
existed during the British and post-British periods a constant and uniform practice allowing
free passage of Portuguese between Daman and the enclaves. In this way, the established
practice, well understood between the Parties, allowed Portugal to acquire a right of passage
in respect of private persons, civil officials and goods in general.