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PUBLIC INTERNATIONAL LAW: SOURCES - Coggle Diagram

- - - - b. Teachings of publicists may include the work of organizations, such as the International Law Commission (a UN body) and private institutions.
  - - - TREATY OBLIGATION: CONSENSUAL.
        NO CONSENT, NO OBLIGATION
        Treaty obligation is based on consent.
        No state may be bound by a treaty obligation unless it has so consented [Art. 34, VCLT].
        
        ONCE A STATE IS PARTY,
        SUCH STATE IS BOUND
        Under the principle of pacta sunt servanda, a state party to a treaty is bound to comply with the obligations it assumed under such treaty in good faith [Art. 26, VCLT].
    - - ELEMENTS
        Before a norm may become customary international law binding on all States, there must be:
        
        STATE PRACTICE
        State practice and
        
        OJSN
        Opinio juris sive necessitates.
        
        CUSTOMARY RULES NEED NO CONSENT TO BE BINDING
        Unlike treaties, customary norms are legally binding upon all States regardless of whether they gave consent, subject to the persistent objector rule.
        
        EXCEPT IF SUCH STATE HAS BEEN A PERSISTENT OBJECTOR
        
        FACTORS THAT CREATE CUSTOMARY RULES
        
        The number of parties,
        
        the explicit acceptance of rules of law, and, in some cases,
        
        the declaratory nature of the provisions
        
        produces a strong law-creating effect
        at least as great as the general practice considered sufficient to support a customary rule.
        [BROWNLIE]
        
        NO SPECIFIC LENGTH OF TIME REQUIRED
        No particular length of time is required for the formation of customary norms so long as the existence of the two elements of custom is manifest [North Sea Continental Shelf Cases (ICJ, 1969)].
      - a. STATE PRACTICE
        
        STATE PRACTICE NEED ONLY BE SUBSTANTIAL UNIFORMITY,
        NOT COMPLETE UNIFORMITY
        The practice must be consistent and general.
        Consistency requires substantial uniformity and not necessarily complete uniformity in practice.
        [Asylum Case (ICJ, 1950)]
        Generality does not require universality. The absence of protest could be considered evidence of the binding nature of customary practice.
        [Akehurst]
        
        EVIDENCE OF STATE PRACTICE
        The following acts may evidence state practice:
        
        Diplomatic correspondence;
        
        Policy statements;
        
        Press releases;
        
        Opinions of official legal advisers;
        
        Official manuals on legal decisions (executive decisions and practices, and government comments on drafts by the ILC);
        
        International and national judicial decisions;
        
        Recitals in treaties and international instruments;
        
        Practice of international organs [Harris].
        
        UN GENERAL ASSEMBLY RESOLUTIONS MAY BE EVIDENCE OF STATE PRACTICE, THOUGH THEY ARE RECOMMENDATORY
        Generally, UN General Assembly resolutions are just recommendatory. However, such resolutions may be evidence of state practice that is relevant in the development of international custom
        [See Nicaragua Case (ICJ, 1986)].
      - b. OPINIO JURIS SIVE NECESSITATES
        
        This refers to the belief on the part of states that a particular practice is required by law, and not because of courtesy or political expediency [North Sea Continental Shelf Cases (ICJ, 1969)].
        It is the existence of opinio juris that distinguishes binding custom from mere usage, from comity, and from courtesy or protocol.
        
        SCOPE
        Custom may be:
        a. General, which is binding upon all or most states; or
        b. Particular, which is binding only between two or among a few states
        
        The ICJ has recognized the possibility of regional custom [Asylum Case (ICJ, 1950)] and of bilateral custom [Right of Passage over Indian Territory Case (ICJ, 1960)].
        
        PRINCIPLE OF PERSISTENT OBJECTOR
        When a State has continuously objected to a new customary norm at the time when it is yet in the process of formation, by such persistent objection the norm will not be applicable as against that state [Magallona].
        For instance, the 10-mile rule (in the delimitation of territorial waters across bays) would appear to be inapplicable against Norway, inasmuch as it has always opposed any attempt to apply it to the Norwegian coast [Anglo-Norwegian Fisheries Case (ICJ, 1951)].
        Some commentators argue, however, that there is no state practice to support this principle [EVANS].
        
        DUALITY OF NORMS:
        INTERNATIONAL LAW CAN BE CONVENTIONAL AND CUSTOMARY AT THE SAME TIME
        It is possible for a norm of international law to exist both as a customary norm and a conventional norm [e.g. prohibition against the use of force].
        Such norms are said to be of dual character.
        
        Norms of dual character come into being when:
        
        RESTATE - a treaty provision simply restates a customary norm
        (Codification ata toh);
        
        EVIDENCE
        a treaty provision constitutes evidence of custom; or
        
        CRYSTALLIZE
        a treaty provision crystallizes into a customary norm.
        
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        EXAMPLES OF CUSTOMARY NORMS RECOGNIZED BY THE PH SUPREME COURT
        a. Rules and principles of land warfare and of humanitarian law under the Hague Convention and the Geneva Convention [Kuroda v. Jalandoni, G.R. No. L-2662 (1949)];
        b. Pacta sunt servanda [La Chemise Lacoste v. Fernandez, G.R. No. L-63796-97 (1984)];
        c. Human rights as defined under the Universal Declaration of Human Rights [Reyes v. Bagatsing, G.R. No. L-65366 (1983)];
        d. The principle of restrictive sovereign immunity [Sanders v. Veridiano, G.R. No. L-46930 (1988)];
        e. The principle in diplomatic law that the receiving state has the special duty to protect the premises of the diplomatic mission of the sending state [Reyes v. Bagatsing, G.R. No. L-65366 (1983)];
        f. The right of a citizen to return to his own country [Marcos v. Manglapus, G.R. No. 88211 (1989)];
        g. The principle that “a foreign army allowed to march through friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from criminal jurisdiction of the place” [Raquiza v. Bradford, G.R. No. L-44 (1945)];
        h. The principle that judicial acts, not of a political complexion of a de facto government established by the military occupant in an enemy territory, are valid under international law [Montebon v. Director of Prisons, G.R. No. L-1352 (1947)];
        i. The principle that private property seized and used by the enemy in times of war under circumstances not constituting valid requisition does not become enemy property and its private ownership is retained, the enemy having acquired only its temporary use [Noceda v. Escobar, G.R. No. L-2939 (1950)];
        j. The principle that a State has the right to protect itself and its revenues, a right not limited to its own territory but extending to the high seas [Asaali v. Commissioner, G.R. No. L-24170 (1968)]
      - GENERAL PRINCIPLES OF LAW
        
        DEFINITION: GENERAL PRINCIPLES OF LAW
        Definition: These refer to those general principles in municipal law (particularly those of private law) that may be appropriated to apply to the relations of states [Oppenheim].
        
        ROMAN LAW PRINCIPLES
        
        OTHER SUBSTANTIVE PRINCIPLES:
        REPARATIONS, RECIPROCITY, SEPARATE CORPORATE PERSONALITY
        Other substantive principles: duty to make reparations [Chorzow Factory Case (PCIJ, 1927)], principle of reciprocity, pacta sunt servanda, separate corporate personality [see Barcelona Traction Case (ICJ, 1970)];
        
        PROCEDURAL RULES:
        USE OF CIRCUMSTANTIAL &
        HEARSAY EVIDENCE
        Procedural rules: rules governing the use of circumstantial and hearsay evidence
        
        JURISDICTIONAL PRINCIPLES:
        POWER OF A TRIBUNAL TO DETERMINE ITS OWN JURISDICTION
        Jurisdictional principles: power of a tribunal to determine the extent of its own jurisdiction (competence de la competence)
        
        Press reports can be used to corroborate the existence of a fact. When they demonstrate matters of public knowledge, which have received extensive press coverage, they can be used to prove a fact to the satisfaction of the court [Nicaragua Case (ICJ, 1986)].
        
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        estoppel, res judicata, res inter alios acta, and prescription
        
        With respect to estoppel, when Thailand did not object to, and has in fact benefited from, the Treaty of 1904 for 50 years, it is deemed to have accepted said treaty.
        It is thereby precluded from questioning Annex I thereof, which showed that the Temple of PreahVihear was within Cambodian territory [Temple of Preah Vihear Case (ICJ, 1962)].
        
        JUDICIAL DECISIONS AND TEACHINGS OF HIGHLY QUALIFIED PUBLICISTS
        
        EVIDENCE OF THE STATE OF THE LAW: DECISIONS EXERCISE CONSIDERABLE INFLUENCE
        Despite the inapplicability of stare decisis in the ICJ, decisions of international tribunals exercise considerable influence as impartial and well-considered statements of the law by qualified jurists made in light of actual problems.
        
        DECISIONS OF INTERNATIONAL TRIBUNALS CONSTITUTE EVIDENCE OF THE STATE OF THE LAW
        Decisions of international tribunals constitute evidence of the state of the law [Brownlie].
        
        WRITINGS OF HIGHLY QUALIFIED PUBLICISTS ARE ALSO SUCH EVIDENCE
        Writings of highly qualified publicists likewise constitute evidence the state of the law.
        
        LEX LATA vs LEX FERENDA
        Caveat: Some publicists may be expressing not what the law is (lex lata) but what they think the law should be or will be (lex ferenda).
        
        NON-SOURCES
        (The following are not sources of international law, but may be used by the ICJ in particular to decide a case )
        
        EX AEQUO ET BONO
        a. Ex aequo et bono is a standard of “what is equitable and good,” which the Court may apply (in place of the sources of international law) to decide a case when the parties to the dispute so agree.
        [Art. 38(2), ICJ Statute]
        
        EQUITY: STANDARDS OF JUSTICE NOT IN THE LETTER OF EXISTING LAW
        b. Equity refers to the application of standards of justice that are not contained in the letter of existing law.
        
        UNILATERAL DECLARATIONS
        c. Unilateral declarations concerning legal or factual situations, may have the effect of creating legal obligations.
        
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        OFTEN IN CASES INVOLVING TERRITORIAL DISPUTES AND MARITIME DELIMITATIONS
        It has often been applied in cases involving territorial disputes and maritime delimitations.
        
        THESE MAY BE USED BY THE ICJ TO DECIDE A PARTICULAR CASE
        
        JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE
        
        JURISDICTION OF ICJ:
        ALL CASES REFERED TO IT +
        ALL MATTERS SPECIALLY PROVIDED FOR IN UN'S CHARTER or IN TREATIES AND CONVENTIONS IN FORCE
        The jurisdiction of the Court comprises all cases that 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.
        [Art. 36(1), ICJ Statute]
        
        STATE PARTIES TO ICJ STATUTE MAY RECOGNIZE JURISDICTION OF ICJ, AS COMPULSORY &
        NOT REQUIRING SPECIAL AGREEMENT
        The states parties to the ICJ 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:
        
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