PIL - Bernas

Chapter 1

THE NATURE OF INTERNATIONAL LAW

What is international law? The traditional definition of international law is that it is 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 in this definition and, in the past, public international law dealt almost exclusively with regulating the relations between states in diplomatic matters and in the conduct of war. Today, sovereign states remain as the principal subjects of international law; but they are now joined by international organizations and even by individuals.' Thus, the 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.”2

Scope of international law. The expansion of the scope of international law is nothing short of revolutionary: New subject matters are being added, new subjects of international law are being recognized, non-Western states are flooding into the community of nations, political and social principles are changing, international organizations are assuming new roles. This is being affected by various factors: rapid changes in technology, the multiplication of the number of states with differing backgrounds and achieving loose forms of cooperation, fear of war, rising demands for social reform.

'Subjects of international law will be treated at greater length in Chapter 5. 2

§ 101. Hereinafter to be cited as RESTATEMENT.

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The topics that are covered by international law today include the 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.

Is international law a law? The question is sometimes asked whether international law is indeed law. The basic challenge to international law as law is the claim that there can be no law binding sovereign states. Moreover, there exists no international legislative body. There is, of course, the General Assembly of the United Nations; but its resolutions are generally not binding on anybody. There is no international executive. The Security Council was intended to be that entity but it is often effectively hamstrung by the veto power. Neither is there a central authority that can make judgments binding on states. The International Court of Justice can bind states only when states consent to be bound. Moreover, national officials tend to find justification for whatever they do. Psychologically too, the allegiance to one’s sovereign state can be very strong to the point of defying reason. When the chips are down, national policy or interest is often preferred over international law. Enforcement of international law is a real problem for several reasons. Frequently, there is no assured procedure of identifying violation. Even the powers of the UN have reference largely to lawbreaking that takes the form of an act of aggression or threat to peace. But there are many violations of international law which are not of this nature. Most of the time, all the UN can do is censure. For these reasons, it is said that what is called international law is not law because it is commonly disregarded. These objections are based on an exaggerated notion of sovereignty as embodying an individualist regime. This, however, is not the reality. The reality is social interdependence and the predominance of the general interest. The reality is that States are bound by many rules not promulgated by themselves. As Henkin observes, “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”3

3

Henkin, HOW NATIONS BEHAVE 42.

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3

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.”4 In the ultimate analysis, although the final enforcer is power, fundamentally, there is a general respect for law because of the possible consequences of defiance either to oneself or to the larger society.

Some theories about international law. If international law is a law, what is its theoretical basis or what makes it a law? Command theory. In the view of John Austin, a renowned legal philosopher, 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. 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. 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. Some dissenters, however, see no objective basis for international law. They see international law as a combination of politics, morality and self-interest hidden under the smokescreen of legal language.

4

Brierly , THE LAW OF NATIONS 55-56

treaties and custom will be treated in subsequent chapters.

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

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.

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.

Brief historical development of international law. From Ancient law to the League of Nations What may be called ancient international law governed exchange of diplomatic emissaries, peace treaties, etc., in the world of ancient Romans and even earlier. There is evidence of treaties concluded between Jews and Romans, Syrians and Spartans. The progressive rules of jus gentium, seen as a law “common to all men,” became the law of the vast Roman empire. Modem international law began with the birth of nation-states in the Medieval Age. The governing principles were derived from Roman Law or Canon Law which in turn drew heavily from natural law. Hugo Grotius, Dutch, is considered father of modem international law. He authored De Jure Belli ac Pads. What he called the “law of nations” was later given the name of “international law” by the British philosopher Jeremy Bentham. Before Grotius was Alberico Gentili, Oxford Professor of Roman Law (De Jure Belli) and the Spanish theologian Francisco de Vitoria and the Jesuit theologian Francisco Suarez; Samuel Pufendorf, German (De Jure Naturae Gentium); Emmerich de Vattel, Swiss (The Law of Nations). These were generally natural law people.

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5

The positivist approach reinterpreted international law not on the basis of concepts derived from reason but rather on the basis of what actually happened in the conflict between states. With the emergence of the notion of sovereignty of states came the view of law as 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. The following are some of the significant milestones in the development of international law: (a) The Peace of Westphalia, which ended the Thirty Years War (1618-1648) and established a treaty based framework for peace cooperation. (It was at this time that pacta sunt servanda arose.) (b) Congress of Vienna (1815), which ended the Napoleonic Wars and created a sophisticated system of multilateral political and economic cooperation. (c) Covenant of the League of Nations (1920) which included the Treaty of Versailles which ended World War I. In the aftermath of World War I, the victors decided to create an institution designed to prevent the recurrence of world conflagration. Thus, the League of Nations was bom. Its membership consisted of 43 states which included the five British dominions of India, Canada, South Africa, Australia and New Zealand. The United States did not join. The League created the Permanent Court of International Justice. From the end of World War II to the end of the Cold War The League of Nations failed to prevent World War II. Thus, the formulation of a new avenue for peace became the preoccupation of the victors. Hence was founded the United Nations in 1945. This marked the shift of power away from Europe and the beginning of a truly universal institution. The universalization was advanced by decolonization which resulted in the expansion of the membership of the United Nations. New states, carrying a legacy of bitterness against colonial powers, became members of the UN.

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

It was during this period that three major groupings of states arose. The Western states, although they were not all completely of one mind, formed one group. Some remained satisfied with the status quo while others were more open to Third World demands and supported social and legal changes. As to international legislation, however, they insisted on two points. First, legal provisions miust'be clear and precise. Second, any substantive rule must be accompanied by an implementation mechanism that can spot and correct violations. Another grouping consisted of the socialist states led by the Soviet Union. They formed the “socialist camp.” They sought to avert Western intrusion into domestic affairs even as they sought relatively good relations with the West for the sake of economic and commercial interchange. They also sought to convert developing nations to their ideology. The third group, the developing countries, formed the overwhelming majority. The group consisted mainly of former colonies suffering from underdevelopment together with newly industrializing countries such as the Philippines, Malaysia, Thailand, Singapore, and South Korea who had earned their independence through armed or political struggle while remaining under the influence of Western or socialist ideas. This was the Cold War period which succeeded in maintaining peace through the balancing of the two super powers, the United States and its allies on the one hand and the Soviet Union. The end of the Cold War The dissolution of the Soviet Union resulted in the end of the Cold War with the re-emergence of international relations based on multiple sources of power and not mainly on ideology. Many of the Baltic states were restored to statehood. Yugoslavia collapsed and fragmented. The newly bom Russian Federation did not inherit the Soviet Union’s position as a superpower. At present there is only one super power, the United States, politically and ideologically leading the western states. The United States acts both as world policeman (but in an obviously selective manner as dictated by its own interests) and also as global mediator.

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Meanwhile, socialist countries are no longer united with some of them depending on the support of Western states. For their part, the developing countries seem to have veered away from ideological orientation and towards market orientation instead and towards fighting poverty and backwardness. As for the United Nations, it seems to have declined as an international agency for the maintenance of peace.

Chapter 2

THE SOURCES OF INTERNATIONAL LAW

What sources are. The task of ascertaining what the laws are in the domestic sphere is a relatively simple matter. Domestic laws are found in statute books and in collections of court decisions. It is an altogether different matter with international law. In the absence of a centralized legislative, executive and judicial structure, there is no single body able to legislate and there is no system of courts with compulsive power to decide what the law is nor is there a centralized repository of international law. Thus, there is the problem of finding out where the law is. This problem is exacerbated by the anarchic nature of world affairs and the competing sovereignties. Nevertheless international law exists and there are “sources” where, with some effort, the law can be found. Sources are often classified into formal sources and material sources. Authors, however, differ in defining these concepts. Formal sources can refer to the various processes by which rules come into existence. Thus, for instance, legislation is a formal source of law. So are treaty making and judicial decision making as well as the practice of states. Material sources, on the other hand, are not concerned with how rules come into existence but rather with the substance and content of the obligation. They identify what the obligations are. In this sense, state practice, UN Resolutions, treaties, judicial decisions and the writings of jurists are material sources in so far as they identify what the obligations are. They are also sometimes referred to as “evidence” of international law. The doctrine of sources lays down conditions for verifying and ascertaining the existence of legal principles. The conditions are the observable manifestations of the “wills” of States as revealed in the processes by which norms are formed — that is, treaty and state prac-

8

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CHAPTER 2 THE SOURCES OF INTERNATIONAL LAW

tice accepted as law. The process of verification is inductive and posi- tivistic. It is the process of finding what laws the states themselves have created and what laws they are willing to place themselves under. It is a manifestation of the fact that international law is characterized by individualism. It is interesting, however, that the most widely accepted statement of the “sources” of international law, that is, Article 38(1) of the Statute of the International Court of Justice, does not speak of sources. Rather, Article 38 is primarily a directive to the Court on how it should resolve conflicts brought before it. Article 38 says: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by contesting states; b. as law; c.

international custom, as evidence of a general practice accepted the general principles of law recognized by civilized nations;

d. 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. 2. This provision shall not prejudice the power of the Court to decide ex aequo et bono, if the parties agree thereto.1 Article 38 is a declaration by states that these are the laws under which they are willing to be bound. Thus, another statement of sources is the Restatement (Third) of Foreign Relations Law of the United States which says: 1. A rule of international law is one that has been accepted as such by the international community of states a) customary law;

in

b) agreement; or

by

the

form

of

international

'Article 59 says: “The decision of the Court has no binding force except between the parties and in respect to that particular case.”

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

c) by derivation from general principles common to the major legal systems of the world. 2. Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. 3. International agreements create law for the states parties thereto and may lead to the creation of customary international law which such agreements are intended for adherence by states generally and are in fact widely accepted. 4. General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreements, may be invoked as supplementary rules of international law where appropriate. Briefly, therefore, the “sources” of international law are custom, treaties and other international agreements, generally recognized principles of law, judicial decisions and teachings of highly qualified and recognized publicists. We shall discuss these sources one by one.

Custom or customary law. Custom or customary international law means “a general and consistent practice of states followed by them from a sense of legal obligation.” (Restatement) This statement contains the two basic elements of custom: the material factor, that is, how states behave, and the psychological or subjective factor, that is, why they behave the way they do. The material factor: practice of states or usus The initial factor for determining the existence of custom is the actual behavior of states (usus). This includes several elements: duration, consistency, and generality of the practice of states. The required duration (diuturnitas) can be either short or long. An example of customary law that is the result of long, almost immemorial, practice is the rule affirmed in The Paquete Havana2 on the exemption of fishing vessels from capture as prize of war.

2

175U.S. 677,687 (1900).

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We are then brought to the consideration of the question whether, upon the facts appearing in these records, the fishing smacks were subject to capture by the armed vessels of the United States during the recent war with Spain. By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. In the North Sea Continental Shelf Cases,3 however, the Court indicated that a short duration, by itself, will not exclude the possibility of a practice maturing into custom provided that other conditions are satisfied: . . . Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was purely a conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of states whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked — and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. Duration therefore is not the most important element. More important is the consistency and the generality of the practice. The basic rule on consistency, that is, continuity and repetition, was laid down in the Asylum Case (ICJ Reports 1950). The facts in the case were as follows: On October 3rd, 1948, a military rebellion broke out in Peru; it was suppressed the same day. On the following day, a decree was published charging a political party, the American People’s Revolutionary Party, with having prepared and directed the rebellion. The head of the Party, Victor Raul Haya de la Torre, was denounced as being responsible. With other members of the party, he was prosecuted on a charge of military rebellion....

3

[1%9] ICJ Rep.

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

On January 4th, 1949, the Colombian Ambassador in Lima informed the Peruvian Government of the asylum granted to Haya de la Torre, at the same time he asked that a safe-conduct be issued to enable the refugee to leave the country. On January 14th, he further stated that the refugee had been qualified as a political refugee. The Peruvian Government disputed this qualification and refused to grant a safe-conduct. A diplomatic correspondence ensued which terminated in the signature, in Lima, on August 31st, 1949, of an Act by which the two Governments agreed to submit the case to the International Court of Justice. The decision of the ICJ was against Colombia: Finally, as regards American international law, Colombia had not proved the existence, either regionally or locally, of a constant and uniform practice of unilateral qualification as a right of the State of refuge and an obligation upon the territorial State. The facts submitted to the Court disclosed too much contradiction and fluctuation to make it possible to discern therein a usage peculiar to Latin America and accepted as law. It therefore followed that Colombia, as the State granting asylum, was not competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru. Uniformity and generality of practice need not be complete, but it must be substantial. In Nicaragua v. United States (ICJ Reports 1986), the Court said that the practice need not be “in absolute conformity” with the purported customary rule. It said: In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of states should, in general, be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. Opinio juris Once the existence of state practice has been established, it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what makes

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practice an international rule. Without it, practice is not law. ... Even humanitarian consideration by itself does not constitute opinio juris. As the Nicaragua case again put it: ... [f]or a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice,’ but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is “evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.” The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. It should be noted that it is also possible for customary law to develop which will bind only several states, or even only two states. But the party claiming it must prove that it is also binding on the other party. In the Asylum case, this was not proved. But this was proved in the case of Right of Passage over Indian Territory (ICJ Reports 1960) where the right of Portugal to pass through Indian territory was recognized. Dissenting states; subsequent contrary practice Would dissenting states be bound by custom? Yes, unless they ha4 consistently objected to it while the custom was merely in the process of formation. The authority that is usually used for this is the Anglo-Norwegian Fisheries* case where the ICJ said that a coastline delimitation rule put forward by England “would appear to be inapplicable as against Norway, in as much as she has always opposed any attempt to apply it to the Norwegian coast.” Dissent, however, protects only the dissenter and does not apply to other states. Moreover, a state joining the international law system for the first time after a practice has become law is bound by such practice. It is also possible that after a practice has been accepted as law, contrary practice might arise. What effect would such contrary practice have? In Fisheries Jurisdiction Case (Merits)? the opinion was expressed that such contrary practice can cast doubt on the alleged law. It noted “great uncertainty as to the existing customary law on account of the conflicting and discordant practice of States.” It concluded that

4

[1951]

5

[1974]

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

the uncertainty had “an unsettling effect on the crystallization of a still evolving customary law on the subject.” ... It might be added that, over time, if the contrary practice should gain general acceptance, it might instead become the law. Evidence of state practice and opinio juris Having said all of the above, what are the acceptable evidence of state practice? Various forms of evidence may point to state practice. These can be treaties, diplomatic correspondence, statements of national leaders and political advisers, as well as the conduct of states. By themselves, however, they do not constitute customary law unless characterized by opinio juris. The existence of opinio juris is a matter of proof. The burden of proving its existence falls on the state claiming it. In Nicaragua v. United States where one of the issues was whether the prohibition of the use of force was customary law, the ICJ said: It considers that this opinio juris may be deduced from, inter alia, the attitude of the Parties and of States towards certain General Assembly resolutions, and particularly Resolution 2625 (XXV) entitled “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.” Consent to such resolutions is one of the forms of expression of an opinio juris with regard to the principle of non-use of force, regarded as a principle of customary international law, independently of the provisions, especially those of an institutional kind, to which it is subject on the treaty-law plane of the Charter. “Instant custom” Is there such a thing as “instant custom?” Quite obviously, what is referred to as “instant custom” is not the product of constant and prolonged practice. Rather it comes about as a spontaneous activity of a great number of states supporting a specific line of action. In the after- math of the attack on the Word Trade Center in New York, a coalition of forces arose in a matter of months supportive of the action taken by the United States against Osama Bin Laden. At least one writer4 has sug

Antonio Cassese, TERRORISM IS ALSO DISRUPTING SOME CRUCIAL LEGAL CATEGORIES OF INTERNATIONAL LAW, 12 Eur. J. Int’l l, No.

6

5.

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gested that this united action may have given birth to instant customary law classifying the attack as an armed attack under Article 51 of the UN Charter justifying collective self-defense. What was peculiar about this collective action was that the object of defense was not an attack from a state but from a non-state organization. Usus and opinio juris in Humanitarian Law: The Martens Clause The Martens Clause refers to a paragraph found in the 1899 Hague Peace Convention. It says: “Until a more complete code of laws of war has been issued, the High Contracting parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. This was first inserted by the Russian publicist Fyodor Martens and has found its way into a number of treaties including the 1949 Vienna Convention and the First Additional Protocol of 1977. It has been cited by, among others, the ICJ in the Legality of the Threat or Use of Nuclear Weapons. What the clause does is to put the “laws of humanity” and the “dictates of public conscience” on the same level as “usages of states” or usus thus suggesting that even without practice or usus or at least without consistent practice there can emerge a principle of law based on laws of humanity and the dictates of public conscience. In other words, one need not wait for thousands of civilians to be killed before a ban becomes effective.

Treaties. 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

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INTRODUCTION TO PUBLIC INTERNATIONAL 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. Treaties and custom Whether or not treaties override custom depends on the intention of the parties. If the treaty is intended to be declaratory of customary law, it may be seen as evidence of customary law. 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? Different situations may have different solutions. 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. Thus, for instance, in the Wimbledon Case (PCIJ 1923), although the PCIJ recognized that customary international law prohibited belligerents from ferrying armaments through a neutral state, the Court said that Article 380 of the Treaty of Versailles opened the Kiel Canal to passage “to the vessels of commerce and of war of all nations at peace with Germany on terms of entire equality.” The Kiel Canal cut through Germany linking the Baltic and North Sea. The Court said: The Court considers that the terms of Article 380 are categorical and give rise to no doubt. It follows that the canal has ceased to be an internal and national navigable waterway, the use of which by the vessels of states other than the riparian state is left entirely to the discretion of that state, and that it has become an international waterway intended to provide under treaty guarantee easier access to the Baltic for the benefit of all nations of the word....

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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. In a situation, where custom develops after a treaty, the rule is not clear. The logical rule perhaps should be that the later custom, being the expression of a later will, should prevail. But such an approach would militate against the certainty of treaties. In practice, however, an attempt is made to keep the treaty alive by efforts at reconciling a treaty with the developing custom. An example given of this reconciliation is the Anglo-French Continental Shelf Case (1979). The issue was the applicability of the equidistance principle in the delimitation of the continental shelves of the United Kingdom and France. The Court said: Article 6 ... does not formulate the equidistance principle and “special circumstances” as two separate rules. The rule there stated in each of the two cases is a single one, a combined equidis- tancespecial circumstances rule. ... The Court does not overlook that under Article 6 the equidistance principle ultimately possesses an obligatory force which it does not have in the same measure under the rules of customary law, for Article 6 makes the application of the equidistance principle a matter of treaty obligation for Parties to the Convention. But the combined character of the equidistance-special circumstances rule means that the obligation to apply the equidistance principle is always one qualified by the condition “unless another boundary line is justified by special circumstances. ...” Treaties will be treated in greater detail in Chapter 3.

General principles of law recognized by civilized nations. The third source cited by the Statute are “the general principles of law recognized by civilized nations.” This is also referred to by the

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

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. It is worth noting that the Restatement avoids the language “civilized nations.” Its colonial connotation is now unacceptable in the international community. 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.” An example would be the 1928 Chorzow Factory case7 where the Permanent Court declared that “it is a general conception of law that every violation of an engagement involves an obligation to make reparation.” Another example would be the affirmation that private rights acquired under one regime does not cease upon the change of government. The principle of estoppel is yet another example. Other examples can be given. The affirmation of general principles of law found in domestic systems as a source of international law makes up for the fact that there is no international legislative system. The insertion of this provision in Article 38(1) thus plugs some of the gaps in the existing international law system. Barcelona Traction Case (ICJ 1964) adverted to this purpose when it said: If the Court were to decide the case in disregard of the relevant institutions of municipal law, it would without justification, invite serious legal difficulties. It would lose touch with reality.... It is to rules generally accepted by municipal systems,... and not to the municipal law of a particular State, that international law refers.

7

P.C J J, Ser. A, No. 9.

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More will be said in Chapter 4 on the relation between international law and municipal law.

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. However, the decisions of the ICJ are not only regarded as highly persuasive in international law circles; they have also contributed to the formulation of principles that have become international law. Later in this book it will be seen that the ICJ is the source of principles recognizing the international personality of international organizations, the doctrine on “genuine link” between a person and a state for purposes of jurisdiction, and the straight baseline method in drawing baselines for archipelagos. Similarly, arbitral decisions have been instrumental on the formation of international law principles.

The teachings of highly qualified writers and “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. In common law jurisdictions, there is reluctance to use them, more so in the US than in Britain. In civil law jurisdictions, there is more ready reference to writers. The ICJ is generally reluctant to refer to writers but they are often taken into consideration. “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.

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Equity. The Permanent Court of Justice had occasion to use equity as a source of law in the case of Diversion of Water from the Meuse (Netherlands v. Belgium). Netherlands had complained that certain canals constructed by Belgium were in violation of an agreement in that the construction would alter the water level and rate of flow of the Meuse River. The Court rejected the Netherlands claim and a Belgian counterclaim based on the construction of a lock by the Netherlands at an earlier time. Judge Hudson, in an individual concurring opinion said: It would seem to be an important principle of equity that where two parties have assumed an identical or a reciprocal obligation, one party which is engaged in a continuing non-performance of that obligation should not be permitted to take advantage of a similar nonperformance of that obligation by the other party. The principle finds expression in the so-called maxims of equity which exercised great influence in the creative period of the development of the AngloAmerican law. Some of these maxims are, “Equality is equity”; “He who seeks equity must do equity.” It is in line with such maxims that “a court of equity refuses relief to a plaintiff whose conduct in regard to the subject-matter of the litigation has been improper.” Halsbury’s LAWS OF ENGLAND (2nd Ed., 1934), p. 87. A very similar principle was received into Roman Law. The obligations of a vendor and a vendee being concurrent, “neither could compel the other to perform unless he had done, or tendered, his own part.” Judge Hudson justified his use of equity thus: The Court has not been expressly authorized by its Statute to apply equity as distinguished from law. Nor, indeed, does the Statute expressly direct its application of international law, though as has been said on several occasions the Court is “a tribunal of international law.” Series A, No. 7, p. 19; Series A, Nos. 20/21, p. 124. Article 38 of the Statute expressly directs the application of “general principles of law recognized by civilized nations,” and in more than one nation principles of equity have an established place in the legal system. The Court’s recognition of equity as a part of international law is in no way restricted by the special power conferred upon it “to decide a case ex aequo et bono, if the parties agree thereto.” [Citations omitted.] It must be concluded, therefore, that under Article 38 of the Statute, if not independently of that Article, the Court has some freedom to consider principles of equity as part of the international law which it must apply.

CHAPTER 2 THE SOURCES OF INTERNATIONAL LAW

21

Equity, when accepted, is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice. It has both a procedural and substantive aspect. Procedurally, it means a mandate given to a judge to exercise discretion in order to achieve a determination that is more equitable and fair. Different kinds of equity are distinguished: intra legem (within the law), that is, the law is adapted to the facts of the case; praeter legem (beyond the law), that is, it is used to fill the gaps within the law; and contra legem (against the law), that is, a refusal to apply the law which is seen as unjust. Obviously, this can be an area of great controversy.

Other supplementary evidence. UN Resolutions Declarations of legal principles and Resolutions by the United Nations are generally considered merely recommendatory. But if they are supported by all the states, they are an expression of opinio juris communis. But a growing number of weaker nations, who have a very substantial vote, feel that U.N. Resolutions should have the force of law. Resolutions can also be a reflection of what has become customary law. “Soft Law" Not included among the sources is what a growing literature refers to as “soft law.” Others prefer to call this category “non-treaty agreements.” They are international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties. Other sources of soft law are administrative rules which guide the practice of states in relation to international organizations. These are mostly administrative procedures that are carried out with varying degrees of consistency and uniformity that may eventually ripen into customary law or become formalized later on in treaties. Soft law plays an important role in international relations because often states prefer non-treaty obligations as a simpler and more flexible foundation for their future relations. The difference lies mainly in the wish of the parties to model their relationship in a way that excludes the application of treaty or customary law on the consequences of a breach of obligations.

Chapter 3 THE LAW OF TREATIES

Treaties can assume various names. They can be conventions, pacts, covenants, charters, protocols, concordat, modus vivendi, etc. They represent the most deliberate form of commitment through which governments cooperate with one another. The generic term that is used is international agreements. In the absence of an international legislative body, international agreements are a convenient tool through which states are able to project common expectations. The law on treaties is found in the 1969 Vienna Convention on the Law of Treaties. It governs treaties between states. It entered into force in January 1980. While the document is not retroactive in effect, it does contain customary law precepts antedating 1969. A Convention on the Law of Treaties Between States and International Organizations or Between International Organizations was adopted on March 26,1986. It should enter into force 30 days after the 35th ratification or accession of states.

Definition of treaties. The Vienna Convention defines a treaty as “an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” The Vienna Convention applies to international agreements that satisfy the Convention’s definition, specifically that they be in writing and reflective of the intention of the parties to be bound, and governed by international law. While treaties are generally in written form, there are writers who hold that even an oral agreement can be binding. However, only writ

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ten agreements that are new, come under the provisions of the Vienna Convention. No particular form is prescribed. Thus for instance, in Qatar v. Bahrain,' the exchange of notes between the two heads of state was considered an international agreement. QUATAR V. BAHRAIN ICJ 1994 The Parties agree that the exchanges of letters of December 1987 constitute an international agreement with binding force in their mutual relations. Bahrain, however, maintains that the Minutes of 25 December 1990 were no more than a simple record of negotiations, similar in nature to the Minutes of the Tripartite Committee; that accordingly they did not rank as an international agreement and could not, therefore, serve as a basis for the jurisdiction of the Court. The Court would observe, in the first place, that international agreements may take a number of forms and be given a diversity of names. Article 2, paragraph 1 of the Vienna Convention on the Law of Treaties of 23 May 1969 provides that for the purposes of that Convention, ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation,” Furthermore, as the Court said, in a case concerning a joint communique, “it knows of no rule of international law which might preclude a joint communique from constituting an international agreement to submit a dispute to arbitration or judicial settlement” (Aegean Sea Continental Shelf; l.CJ. Reports IY78, p. 39, para. 96). In order to ascertain whether an agreement of that kind has been concluded, “the Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up.” (ibid.) The 1990 Minutes refer to the consultations between the two Foreign Ministers of Bahrain and Qatar, in the presence of the For-

'[1994] ICJ Rep.

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

eign Minister of Saudi Arabia, and state what had been “agreed” between the Parties. In paragraph 1, the commitments previously entered into are reaffirmed (which includes, at the least, the agreement constituted by the exchanges of letters of December 1987). In paragraph 2, the Minutes provide for the good offices of the King of Saudi Arabia to continue until May 1991, and exclude the submission of the dispute to the Court prior thereto. The circumstances are addressed under which the dispute may subsequently be submitted to the Court. Qatar’s acceptance of the Bahraini formula is placed on record. The Minutes provide that the Saudi good offices are to continue while the case is pending before the Court, and go on to say that, if a compromise agreement is reached during that time, the case is to be withdrawn. Thus, the 1990 Minutes include a reaffirmation of obligations previously entered into; they entrust King Fahd with the task of attempting to find a solution to the dispute during a period of six months; and lastly, they address the circumstances under which the Court could be seised after May 1991. Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record of a meeting, similar to those drawn up within the framework of the Tripartite Committee; they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement. Bahrain, however, maintains that the signatories of the Minutes never intended to conclude an agreement of this kind. It submitted a statement made by the Foreign Minister of Bahrain and dated 21 May 1992, in which the States that “at no time did I consider that in signing the Minutes I was committing Bahrain to a legally binding agreement.” He goes on to say that, according to the Constitution of Bahrain, “treaties ‘concerning the territory of the State’ can come into effect only after their positive enactment as a law.” The Minister indicates that he would therefore not have been permitted to sign an international agreement taking effect at the time of the signature. He was aware of that situation, and was prepared to subscribe to a statement recording a political understanding, but not to sign a legally binding agreement. The Court does not find it necessary to consider what might have been the intentions of the Foreign Minister of Bahrain or,

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for that matter, those of the Foreign Minister of Qatar. The two Ministers signed a text recording commitments accepted by their Governments, some of which were to be given immediate application. Having signed such a text, the Foreign Minister of Bahrain is not in a position subsequently to say that he intended to subscribe only to a “statement recording a political understanding,” and not to an international agreement.

The Court concludes that the Minutes of 25 December 1990, like the exchanges of letters of December 1987, constitute an international agreement creating rights and obligations for the Parties. Similar was the case of Norway v. Denmark} The case involved a dispute between Denmark and Norway over sovereignty in Eastern Greenland. In the course of negotiations, Denmark had offered certain concessions important for Norway for the purpose of persuading Norway not to obstruct Danish plans in regard to Greenland. In reply, the Norwegian Minister accepted the offer: “I told the Danish Minister today that the Norwegian Government would not make any difficulty in the settlement of this question.” The Court found this declaration sufficient to bind the Norwegian government. In fact, even a unilateral declaration concerning legal or factual situations may create legal obligations. This was what happened in Nuclear Test Cases: Australia v. France, New Zealand v. France,3 France was a signatory to the Nuclear Test Ban Treaty and thus continued to conduct tests in the South Pacific until 1973. The tests conducted in 1972 and 1973 led to the filing of protests by Australia and New Zealand. The case, however, was taken off the Court’s list without a decision when France announced by a series of unilateral announcements that it would conduct no further tests after 1973. The Court nevertheless commented on the legal significance of these announcements saying: It is well-recognized that declarations made by way of unilateral acts concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to

2

[1933] P.C.IJ. Ser.

3

[ 1974] ICJ Rep.

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its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding.... The Court added: In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large ... its intention to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. Two characteristics the Court found which convinced it that a binding obligation had been incurred. First, the commitment was very specific; second, there was a clear intent to be bound. This, however, did not prevent France from conducting nuclear tests in the South Pacific. After having conducted six nuclear tests, France responded to worldwide outrage and stopped the testing at six in 1996 rather than the originally planned eight. Moreover, care in attributing binding effect to a unilateral declaration was expressed in a case involving the Trade Act of 1974 between the European and the USA.4 7.118 Attributing international legal significance to unilateral statements made by a State should not be done lightly and should be subject to strict conditions. Although the legal effects we are ascribing to the US statements made to the DSB [Dispute Settlement Body] through this Panel are of a more narrow and limited nature and reach compared to other internationally relevant instances in which legal effect was given to unilateral declarations, we have conditioned even these limited effects on the fulfillment

♦CASE CONCERNING SECTIONS 301-310 OF THE TRADE ACT OF 1974 (EUROPEAN UNION v. USA, 1999).

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of the most stringent criteria. A sovereign State should normally not find itself legally affected on the international plane by the casual statement of any of the numerous representative speaking on its behalf in today’s highly interactive and inter-dependent world nor by a representation made in the heat of legal argument on a State’s behalf. This, however, is very far from the case before us. 7.121 The statements made by the US before this Panel were a reflection of official US policy, intended to express US understanding of its international obligations as incorporated in domestic US law. The statements did not represent a new US policy or undertaking but the bringing of a pre-existing US of a pre-existing US policy and undertaking made in a domestic setting into an international forum.

Function of treaties. Treaties have many functions. They are sources of international law, they serve as the charter of international organizations, they are used to transfer territory, regulate commercial relations, settle disputes, protect human rights, guarantee investments, etc. The different kinds of treaties may be classified from the standpoint of their relevance as source of international law. The first are multilateral treaties open to all states of the world. They create norms which are the basis for a general rule of law. They are either codification treaties or “law-making treaties” or they may have the character of both. Another category includes treaties that create a collaborative mechanism. These can be of universal scope {e.g., regulation of allocation of radio frequencies) or regional (e.gfishing agreements). They operate through the organs of the different states. The third and largest category of treaties are bilateral treaties. Many of these are in the nature of contractual agreements which create shared expectations such as trade agreements of various forms. They are sometimes called “contract treaties.” While treaties are generally binding only on the parties, the number of the contracting parties and the generality of the acceptance of specific rules created by the treaty can have the effect of creating a

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universal law in much the same way that general practice suffices to create customary law.

The making of treaties. Negotiation Bilateral treaties, and multilateral treaties among a small number, generally originate from the foreign ministries. Negotiation is done through foreign ministries. Larger multilateral treaties are negotiated in diplomatic conferences which are run like a legislative body. Power to negotiate The negotiators must possess powers to negotiate. An act relating to the conclusion of a treaty by one who has no proper authorization has no legal effect unless confirmed by his state: Article 7. Full powers. 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; or

(b) 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. 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.

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Authentication of text Negotiations conclude with the signing of the document. The signatures serve as authentication of the document. Article 9. Adoption of the text: 1. The adoption of the text of a treaty takes place by the consent of all the States participating in its drawing up except as provided in paragraph 2. 2. The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. Article 10. Authentication of the text: The text of a treaty is established as authentic and definitive: (a) by such procedure as may be provided for in the text or agreed upon by the States participating in its drawing up; or (b) failing such procedure, by the signature, signature ad referendum or initialing by the representatives of those States of the text of the treaty or of the Final Act of a conference incorporating the text. The authentication of a treaty makes the text authoritative and definitive. It is necessary so that the states will know definitively the contents of the text and avoid any misunderstanding as to the terms. Consent to be bound Once the document has been signed, there are stages which follow which culminate in making the document binding. The most important step is the consent to be bound. There are various ways by which consent to be bound is expressed: Article 11. Means of expressing consent to be bound by a treaty: The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.

INTRODUCTION TO PUBLIC INTERNATIONAL LAW

Article 12. Consent to be bound by a treaty expressed by signature: 1. The consent of a State to be bound by a treaty is expressed by the signature of its representative when: (a) the treaty provides that signature shall have that effect; (b) it is otherwise established that the negotiating States were agreed that signature should have that effect; or (c) the intention of the State to give that effect to the signature appears from the full powers of its representative or was expressed during the negotiation. 2.

For the purposes of paragraph 1:

(a) the initialing of a text constitutes a signature of the treaty when it is established that the negotiating States so agreed; (b) the signature and referendum of a treaty by a representative, if confirmed by his State, constitutes a full signature of the treaty. Article 13. Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty: The consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: (a) the instruments provide that their exchange shall have that effect; or (b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect, xxx Article 14. Consent to be bound by a treaty expressed by ratification, acceptance or approval: 1. The consent of a State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such consent to be expressed by means of ratification; (b) it is otherwise established that the negotiating States were agreed that ratification should be required; (c) the representative of the State has signed the treaty subject to ratification; or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation. 2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under conditions similar to those which apply to ratification.

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The manner of ratification differs from state to state. In the Philippines, it is governed by Article VII, Section 21 of the Constitution. But between signature and ratification a state is required by Article 18(a) not to engage in acts which can defeat the purpose of the treaty. Ratification is next followed by either exchange of ratification, in bilateral treaties, or, in multilateral treaties, deposit of ratification: Article 16. Exchange or deposit of instruments of ratification, acceptance, approval or accession: Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or accession establish the consent of a State to be bound by a treaty upon: (a) their exchange between the contracting States; (b) their deposit with the depositary; or (c) their notification to the contracting States or to the depositary, if so agreed. Article 17 Consent to be bound by part of a treaty and choice of differing provisions: 1. Without prejudice to Articles 19 to 23, the consent of a State to be bound by part of a treaty is effective only if the treaty so permits or the other contracting States so agree. 2. The consent of a State to be bound by a treaty which permits a choice between differing provisions is effective only if it is made clear to which of the provisions the consent relates. Accession to a treaty States which did not participate in the initial negotiation may also express their consent to be bound by “accession.” Article 15 of the Convention says: The consent of a State to be bound by a treaty is expressed by accession when: (a) the treaty provides that such consent may be expressed by that State by means of accession; (b) it is otherwise established that the negotiating States were agreed that such consent may be expressed by that State by means of accession; or (c) all the parties have subsequently agreed that such consent may be expressed by that State by means of accession.

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Reservations In deference to the sovereignty of states, the Vienna Convention allows for “reservations.” Article 2 defines reservations as “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” In this regard, therefore, treaties are different from statutes. Statutes must necessarily apply to all. Reservations, however, are different from “interpretative declarations” which are not meant to be a derogation from the treaty but an expression of how a state understands its adoption of the treaty. The rules on reservations are found in Articles 19 to 23: Article 19. Formulation of reservations. A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or (c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Article 20. Acceptance of and objection to reservations 1. A reservation expressly authorized by a treaty does not require any subsequent acceptance by the other contracting States unless the treaty so provides. 2. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties. 3. When a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization. 4. In cases not falling under the preceding paragraphs and unless the treaty otherwise provides: (a) acceptance by another contracting State of a reservation constitutes the reserving State a party to the treaty

CHAPTER 3 THE LAW OF TREATIES

in relation to that other State if or when the treaty is in force for those States; (b) an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State; (c) an act expressing a State’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation. 5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later. Article 21. Legal effects of reservations and of objections to reservations: 1. A reservation established with regard to another party in accordance with Articles 19,20 and 23: (a) modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and (b) modifies those provisions to the same extent for that other party in its relations with the reserving State. 2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. 3. When a State objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving State, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation. Article 22. Withdrawal of reservations and of objections to reservations: 1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent of a State which has accepted the reservation is not required for its withdrawal.

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any time. 3. agreed:

Unless the treaty otherwise provides, or it is otherwise

(a) the withdrawal of a reservation becomes operative in relation to another contracting State only when notice of it has been received by that State; (b) the withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation. Article 23. Procedure regarding reservations: 1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and other States entitled to become parties to the treaty. 2. If formulated when signing the treaty subject to ratification, acceptance or approval, a reservation must be formally confirmed by the reserving State when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation. 3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation. 4. The withdrawal of a reservation or of an objection to a reservation must be formulated in writing. A proliferation of reservations in multilateral treaties can very well defeat the purpose of a treaty. In bilateral treaties, a reservation by one party means a rejection of the treaty and necessitates re-negotiation. Reservations, therefore, are meant only for multilateral treaties. Must a reservation be consented to by all parties for it to be effective? This question was answered by the ICJ in its advisory opinion in Reservations to the Genocide Convention (ICJ Reports 1951) saying, by seven votes to five, that “a state which has made and maintained a reservation which has been objected to by one or more parties to the Convention but not by others, can be regarded as a party to the Convention if the reservation is compatible with the object and purpose of the Convention.” The Court added that compatibility could be decided by

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states individually since “if a party to the Convention objects to a reservation which it considers incompatible with the object and purpose of the Convention, it can consider that the reserving state is not a party to the Convention.” Under this view, it is possible for different legal relationships to arise among parties to the same treaty. This view some see as reflected in Article 19, supra, of the Vienna Convention. The Philippines and the 1982 Convention on the Law of the Sea In this connection, it should be noted that the provision on “archipelagic waters” found in the 1982 Convention on the Law of the Sea conflicts with the Philippine claim in Article I of the Constitution that the waters connecting the islands, irrespective of their breadth and dimension, are “internal waters.” The Philippine government is clearly aware of these possible conflicts. Hence, upon its ratification of the Convention on the Law of the Sea on August 5,1984, it added the following reservation:5 1. The signing of the Convention by the Government of the Republic of the Philippines shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution of the Philippines; 2. Such signing shall not in any manner affect the sovereign rights of the Republic of the Philippines as successor to the United States of America, under and arising out of the Treaty of Paris between Spain and the United States of America of December 10, 1988, and the Treaty of Washington between the United States of America and Great Britain of January 2,1930; 3. uch signing shall not diminish or in any manner affect the rights and obligations of the Contracting Parties under the Mutual Defense Treaty between the Philippines and the United States of America of August 30,1951, and its related interpretative instruments; nor those under any pertinent bilateral or multilateral treaty or agreement to which the Philippines is a party;

5 UN Office for Oceans Affairs and the Law of the Sea, Law of the Sea Bulletin, Special Issue 1, March 1987, Annex II, p. 6, quoted in Sweeney, Oliver, Leech, THE INTERNATIONAL LEGAL SYSTEM 193 (3rd Ed., 1988).

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6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority to enact legislation to protect its sovereignty, independence, and security; 7. The concept of archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation;

The USSR filed a formal protest against the Philippine reservation. However, the reservation does not seem to be necessary because Article 8(2) itself says that the new rule applies only to “areas which had not previously been considered as” internal waters. The 1973 Constitution, which in its Article I classified as internal waters what is now referred to as archipelagic waters, pre-dates the 1982 Convention. Reservations in Human Rights Treaties The Human Rights Committee of the UN made the following observations regarding reservations in human rights treaties: 17. As indicated above, it is the Vienna Convention on the Law of Treaties that provides the definition of reservations and also the application of the object and purpose test in the absence of other specific provisions. But the Committee believes that its provisions on the role of State objections in relation to reservations are inappropriate to address the problem of reservations to human rights treaties. Such treaties, and the Covenant specifically, are not a web of inter-State exchanges of mutual obligations. They concern the endowment of individuals with rights. The principle of inter-State reciprocity has no place, save perhaps in the limited context of reservations to declarations on the Committee’s competence under Article 41. And because the operation of the classic rules on reservations is so inadequate for the Covenant, States have often not seen any legal interest in or need to object to reservations. The absence of protest by States cannot imply that a reservation is either compatible or incompatible with the object and purpose of the Covenant. Objections have been occasional, made by some States but not others, and on grounds not always

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specified; when an objection is made, it often does not specify a legal consequence, or sometimes even indicates that the objecting party nonetheless does not regard the Covenant as not in effect as between the parties concerned. In short, the pattern is so unclear that it is not safe to assume that a non-objecting State thinks that a particular reservation is acceptable. In the view of the Committee, because of the special characteristics of the Covenant as a human rights treaty, it is open to question what effect objections have between States inter se. However, an objection to a reservation made by States may provide some guidance to the Committee in its interpretation as to its compatibility with the object and purpose of the Covenant. Entry into force of treaties Treaties enter into force on the date agreed upon by the parties. Where no date is indicated, the treaty enters into force once consent has been given. Multilateral treaties generally contain a provision which says how many states have to accept the treaty before it can come into force. The rules on entry into force are as follows: Article 24. Entry into force: 1. A treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree. 2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be bound by the treaty has been established for all the negotiating States. 3. When the consent of a State to be bound by a treaty is established on a date after the treaty has come into force, the treaty enters into force for that State on that date, unless the treaty otherwise provides. 4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty apply from the time of the adoption of its text. Article 25. Provisional application:

1. A treaty or a part of a treaty is applied provisionally pending its entry into force if:

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(a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed. 2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty. Application of treaties The first fundamental rule on treaties is pacta sunt servanda. Article 26 of the Convention says that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” A second fundamental rule, Article 46, is that a “party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” As to the territorial scope of its applicability, Article 29 says: “Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.” Interpretation of treaties Article 31 contains the rules for the interpretation of treaties: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. context:

There shall be taken into account, together with the

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(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 31 combines various approaches to treaty interpretation. Article 31(1) follows the “objective” approach, that is, interpretation according to the ordinary meaning of the words. This is supplemented by the “teleological” approach in Article 31(2), that is, interpretation according to the telos or purpose of the treaty. Finally, Article 31(3) and (4) follow a “subjective” approach which honors special meaning given by the parties. Where there are ambiguities in the meaning of a treaty, resort may be made to supplementary sources. Articles 32 and 33 are relevant: Article 32. Supplementary means of interpretation. Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31: (a) (b) sonable.

leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unrea-

Article 33. Interpretation of treaties authenticated in two or more languages: 1. W hen a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. 2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

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3. The terms of the treaty are presumed to have the same meaning in each authentic text. 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted. In case there is conflict among “official texts,” the language that is agreed by the parties as authoritative is followed. AIR FRANCE V. SAKS 470 US 392 (Syllabus) Article 17 of the Warsaw Convention makes air carriers liable for injuries sustained by a passenger “if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” Respondent, while a passenger on petitioner’s jetliner as it descended to land in Los Angeles on a trip from Paris, felt severe pressure and pain in her left ear, and the pain continued after the jetliner landed. Shortly thereafter, respondent consulted a doctor who concluded that she had become permanently deaf in her left ear. She then filed suit in a California state court, alleging that her hearing loss was caused by negligent maintenance and operation of the jetliner’s pressurization system. After the case was removed to Federal District Court, petitioner moved for summary judgment on the ground that respondent could not prove that her injury was caused by an “accident” within the meaning of Article 17, the evidence indicating that the pressurization system had operated in a normal manner. Relying on precedent that defines the term “accident” in Article 17 as an “unusual or unexpected” happening, the District Court granted summary judgment to petitioner. The Court of Appeals reversed, holding that the language, history, and policy of the Warsaw Convention and the Montreal Agreement (a private agreement among airlines that has been approved by the Federal Government) impose absolute liability on airlines for injuries proximately caused by the risks inherent in air travel; and that normal cabin pressure changes qualify as an “accident” within the definition contained in Annex 13 to the Convention on International Civil Aviation as meaning “an occurrence associated with the operation of an aircraft.”

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Held: Liability under Article 17 arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger, and not where the injury results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, in which case it has not been caused by an accident under Article 17. (a) The text of the Warsaw Convention suggests that the passenger’s injury must be so caused. The difference in the language of Article 17 imposing liability for injuries to passengers caused by an “accident” and Article 18 imposing liability for destruction or loss of baggage by an “occurrence,” implies that the drafters of the Convention understood the word “accident” to mean something different than the word “occurrence.” Moreover, Article 17 refers to an accident which caused the passenger’s injury, and not to an accident which is the passenger’s injury. The text thus implies that, however “accident” is defined, it is the cause of the injury that must satisfy the definition rather than the occurrence of the injury alone. And, since the Warsaw Convention was drafted in French by continental jurists, further guidance is furnished by the French legal meaning of “accident” — when used to describe a cause of injury, rather than the event of injury — as being a fortuitous, unexpected, unusual, or unintended event. (b) The above interpretation of Article 17 is consistent with the negotiating history of the Warsaw Convention, the conduct of the parties thereto, and the weight of precedent in foreign and American courts. (c) While any standard requiring courts to distinguish causes that are “accidents” from causes that are “occurrences” requires drawing a line that may be subject to differences as to where it should fall, an injured passenger is only required to prove that some link in the chain of causes was an unusual or unexpected event external to the passenger. Enforcement of Article 17’s “accident” requirement cannot be circumvented by reference to the Montreal Agreement. That Agreement while requiring airlines to waive “due care” defenses under Article 20(1) of the Warsaw Convention, did not waive Article 17’s “accident” requirement. Nor can enforcement of Article 17 be escaped by reference to the equation of “accident” with “occurrence” in Annex 13, which, with its corresponding Convention, expressly applies to aircraft accident investigations and not to principles of liability to passengers under the Warsaw Convention.

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Invalidity of Treaties. The usual ground for invalidation of contracts can also invalidate a treaty: error of fact, fraud, corruption or duress. Article 48. Error: 1. A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. 2. Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error. 3. An error relating only to the wording of the text of a treaty does not affect its validity; Article 79 then applies. Article 49. Fraud: If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty. Article 50. Corruption of a representative of a State: If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative direcdy or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty. Article 51. Coercion of a representative of a State: The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect. Article 52. Coercion of a State by the threat or use of force: A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. Moreover, a violation of jus cogens invalidates a treaty: Article 53. Treaties conflicting with a peremptory norm of general international law (jus cogens):

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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. Note, however, that the definition quoted here is based on the legal effect of the rule and not on its intrinsic nature. It seems to say that the rule is jus cogens because no derogation from it is permitted. However, what jus cogens really means is that no derogation is allowed because it is jus cogens. It is the intrinsic nature of the rule that disallows derogation. What are the rules considered to be jus cogens ? While there is wide acceptance of the existence of jus cogens, there is wide dispute as to what principles rank as jus cogens. A 1966 Report of the International Law Commission said that there were suggestions to specify what these were. Some examples given were: (a) a treaty contemplating an unlawful use of force contrary to the provisions of the Charter; (b) a treaty contemplating the performance of any other act criminal under international law; (c) a treaty contemplating or conniving towards the commission of acts such as trade in slaves, piracy, or genocide. But the Commission decided not to stipulate a list of jus cogens rules for fear of being misunderstood and for fear of prolonged debate. A state, however, can lose the right to assert the invalidity of a treaty. The following rules apply: Article 45. Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty: A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under Articles 46 to 50 or Articles 60 and 62 if, after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or

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(b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be. A state, moreover, with limited exception, may not plead its municipal law as a ground for invalidating a treaty that has been entered. Article 46. Provisions of internal law regarding competence to conclude treaties: 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. Article 46. Provisions of internal law regarding competence to conclude treaties: 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. Article 47. Specific restrictions on authority to express the consent of a State: If the authority of a representative to express the consent of a State to be bound by a particular treaty has been made subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating the consent expressed by him unless the restriction was notified to the other negotiating States prior to his expressing such consent. Article 47 is an example of manifest violation.

Amendment and Modification of Treaties. A distinction is made between amendment and modification of a treaty. Amendment is a formal revision done with the participation, at

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least in its initial stage, by all the parties to the treaty. Modification, on the other hand, involves only some of the parties. The general rule on amendments, found in Article 39, is that a “treaty may be amended by agreement of the parties.” The procedure that is followed is the same as that for the formation of treaties. The process is simple enough with regard to bilateral treaties. In recognition of the fact that it is not easy to obtain the consent of all in multilateral treaties, Article 40 provides for the possibility of amendments which will affect only some states but only after all parties have been given the opportunity to consider the proposed amendments. Article 41, for its part, allows for modification of a treaty by two or more of the parties. Amendment Article 40. Amendment of multilateral treaties: 1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs. 2. A ny proposal to amend a multilateral treaty as between all the parties must be notified to all the contracting States, each one of which shall have the right to take part in: (a) the decision as to the action to be taken in regard to such proposal; (b) the negotiation and conclusion of any agreement for the amendment of the treaty. 3. Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended. 4. The amending agreement does not bind any State already a party to the treaty which does not become a party to the amending agreement; Article 30, paragraph 4(b), applies in relation to such State. 5. Any State which becomes a party to the treaty after the entry into force of the amending agreement shall, failing an expression of a different intention by that State: (a) be considered as a party to the treaty as amended; and (b) be considered as a party to the unamended treaty in relation to any party to the treaty not bound by the amending agreement.

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Modification Article 41. Agreements to modify multilateral treaties between certain of the parties only — 1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty ; or (b) the modification in question is not prohibited by the treaty and: (i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations; (ii) does not relate to a provision, derogation from which is incompatible with the effective execution of the object and purpose of the treaty as a whole. 2. Unles s in a case falling under paragraph 1(a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of the modification to the treaty for which it provides.

Termination of Treaties. A treaty may be terminated or suspended according to the terms of the treaty or with the consent of the parties. A treaty with a definite period may also expire. It may also end when the purpose for the treaty has already been achieved. But a mere change of government or severance of diplomatic relations does not terminate or suspend a treaty. Three other important modes of terminating a treaty are material breach, impossibility of performance and change of fundamental conditions (rebus sic stantibus). Material breach Article 60. Termination or suspension of the operation of a treaty as a consequence of its breach: 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2. A material breach of a multilateral treaty by one of the parties entitles:

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(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State, or (ii)

as between all the parties;

(b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3. A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties. Supervening impossibility of performance Article 61. Supervening impossibility of performance: 1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.

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2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty. Rebus sic stantibus Article 62. Fundamental change of circumstances: 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; and (b) 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 withdrawing from a treaty: (a) if the treaty establishes a boundary; or (b) 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. 3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty. Article 62 is a codification of the common law principle of rebus sic stantibus. But the modem approach to it is restrictive. As the ICJ said in the Fisheries Jurisdiction case (ICJ Reports 1973), international law admits that a fundamental change in the circumstances which determined the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty.

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But the Court also added that the changes “must have increased the burden of the obligations to be executed to the extent of rendering performance something essentially different from the original intention.” The following three cases illustrate how difficult it is to establish causes for the termination of treaties: FISHERIES JURISDICTION CASE (UNITED KINGDOM V. ICELAND) ICJ REP 1973 3 [The United Kingdom, as part of what was known as “the Cod Wars,” applied to the Court claiming that the proposed extension of Iceland’s exclusive fisheries jurisdiction from 12 miles to SO miles was a breach of an agreement between the two states, evidenced by an Exchange of Notes in 1961. Iceland contended that the Court had no jurisdiction to hear the case and it also submitted that any agreement which it had with the United Kingdom not to extend its fisheries jurisdiction, was no longer binding due to a fundamental change of circumstances since that agreement. [The court decided that it did have jurisdiction. It also considered that Art. 62 of the Vienna Convention on the Law of Treaties represented customary international law.] 37. One of the basic requirements embodied [Article 62] is that the change of circumstances must have been a fundamental one. In this respect the Government of Iceland has, with regard to developments in fishing techniques, referred ... to the increased exploitation of the fishery resources in the seas surrounding Iceland and to the danger of still further exploitation because of an increase in the catching capacity of fishing fleets. The Icelandic statements recall the exceptional dependence of that country on its fishing for its existence and economic development.” 38. The invocation by Iceland of its ‘ vital interests ’, which were not made the subject of an express reservation to the acceptance of the jurisdictional obligation under the 1961 Exchange of Notes, must be interpreted, in the context of the assertion of changed circumstances, as an indication by Iceland of the reason why it regards as fundamental the changes which in its view have taken place in previously existing fishing techniques. This inter-

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pretation would correspond to the traditional view that the changes of circumstances which must be regarded as fundamental or vital are those which imperil the existence or vital development of one of the parties.

43. Moreover, in order that a change of circumstances may give rise to a ground for invoking the termination of a treaty it is also necessary that it should have resulted in a radical transformation of the extent of the obligations still to be performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from the originally undertaken. In respect of the obligation with which the Court is here concerned, this condition is wholly unsatisfied; the change of circumstances alleged by Iceland cannot be said to have transformed radically the extent of the jurisdictional obligation which is imposed in the 1961 Exchange of Notes. The compromissory clause enabled either of the parties to submit to the Court any dispute between them relating to an extension of Icelandic fisheries jurisdiction in the waters above its continental shelf beyond the 12mile limit. The present dispute is exactly of the character anticipated in the compromissory clause of the Exchange of Notes. Not only has the jurisdictional obligation not been radically transformed in its extent; it has remained precisely what it was in 1961. NAMIBIA CASE ICJ REP 1971 16 [The Security Council had resolved that South Africa’s Mandate over South-West Africa (Namibia) was terminated, but this had been ignored by South Africa. The Security Council then resolved, by Resolution 276 (1970), that the continued presence of South Africa in Namibia was illegal. It sought an advisory opinion from the Court, asking what were the legal consequences for States of the continued presence of South Africa in Namibia notwithstanding Resolution 276 (1970). The Court held that South Africa was under an obligation to withdraw its administration in Namibia. It also held that other States where under an obligation not to recognize any acts by South Africa’s administration in Namibia (see Chapter 5).]

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94. In examining this action of the General Assembly, it is appropriate to have regard to the general principles of international law regulating termination of a treaty relationship on account of breach. For even if the mandate is viewed as having the character of an institution, as is maintained, it depends on those international agreements which created the system and regulated its application. As the Court indicated in 1962 ‘this Mandate, like practically all other similar Mandates’ was a special type of instrument composite in nature and instituting a novel international regime. It incorporates a definite agreement. (ICJ Rep 1962, p. 331). The Court stated conclusively in that Judgment that the Mandate ... ‘in fact and in law, is an international agreement having the character of a treaty or convention.’ (ICJ Rep 1962, p. 330). The rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach (adopted without a dissenting vote) may in many respects be considered as a codification of existing customary law on the subject. In the light of these rules, only a material breach of a treaty justifies termination, such breach being defined as: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. (Art. 60, para. 3) 95. General Assembly Resolution 2145 (XXI) determines that both forms of material breach had occurred in this case. By stressing that South Africa ‘has, in fact, disavowed the Mandate’, the General Assembly declared in fact that it had repudiated it. The resolution in question is therefore to be viewed as the exercise of the right to terminate a relationship in case of a deliberate and persistent violation of obligations which destroys the very object and purpose of that relationship. 96. It has been contended that the Covenant of the League of Nations did not confer on the Council of the League power to terminate a mandate for misconduct of the mandatory and that no such power could therefore be exercised by the United Nations, since it could not derive from the League greater powers than the latter itself had. For this objection to prevail it would be necessary to show that the mandates system, as established under the League, excluded the application of the general principle of law that a right of termination on account of breach must be presumed to exist in respect of all treaties, except as regards provisions relating

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to the protection of the human person contained in treaties of a humanitarian character (as indicated in Art. 60, para. 5, of the Vienna Convention). The silence of a treaty as to the existence of such a right cannot be interpreted as implying the exclusion of a right which has its source outside the treaty, in general international law, and is dependent on the occurrence of circumstances which are not normally envisaged when a treaty is concluded.

101. It has been suggested that, even if the Council of the League had possessed the power of revocation of the Mandate in an extreme case, it could not have been exercised unilaterally but only in co-operation with the Mandatory which had committed a serious breach of the obligations it had undertaken. To contend, on the basis of the principle of unanimity which applied in the League of Nations, that in this case revocation could only take place with the concurrence of the Mandatory, would not only run contrary to the general principle of law governing termination on account of breach, but also postulate an impossibility. For obvious reasons, the consent of the wrongdoers to such a form of termination cannot be required. DANUBE DAM CASE (Hungary v. Slovakia) 37ILM162 (1998) [In 1977, Hungary and Czechoslovakia concluded a treaty to facilitate the construction of dams on the Danube River. Hungary later suspended works due to environmental concerns in response to which Czechoslovakia carried out unilateral measures. Hungary then claimed the right to terminate the treaty, at which point the dispute was submitted to the International Court of Justice. Hungary also submitted that it was entitled to terminate the Treaty on the ground that Czechoslovakia had violated Articles of the Treaty by undertaking unilateral measures, culminating in the diversion of the Danube. Slovakia became a party to the 1977 Treaty as successor to Czechoslovakia (see above on succession).] 100. The 1977 Treaty does not contain any provision regarding its termination.. 101. The Court will now turn to the first ground advanced by Hungary, that of the state of necessity. In this respect, the Court

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will merely observe that, even if a state of necessity is found to exist, it is not a ground for the termination of a treaty. It may only be invoked to exonerate from its responsibility a State which has failed to implement a treaty. 102. Hungary also relied on the principle of the impossibility of performance as reflected in Article 61 ... [I]f the joint exploitation of the investment was no longer possible, this was originally because Hungary did not carry out most of the works for which it was responsible; Article 61, paragraph 2, of the Vienna Convention expressly provides that impossibility of performance may not be invoked for the termination of a treaty by a party to that treaty when it results from that party’s own breach of an obligation flowing from that treaty. 104. Hungary further argued that it was entitled to invoke a number of events which, cumulatively, would have constituted a fundamental change of circumstances [changes of political nature, the reduced economic viability of the Project, and the progress of environmental knowledge and international environmental law]. The changed circumstances advanced by Hungary are, in the Court’s view, not of such a nature’ that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the Project. A fundamental change of circumstances must have been unforeseen; the existence of the circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty. 106. ... [I]t is only a material breach of the treaty itself, by a State party to that treaty, which entitles the other party to rely on it as a ground for terminating the treaty. The violation of other treaty rules or of rules of general international law may justify the taking of certain measures, including countermeasures, by the injured State, but it does not constitute a ground for termination under the law of treaties. 109. ... Czechoslovakia violated the Treaty only when it diverted the waters of the Danube into the bypass canal in October 1992. In constructing the works which would lead to the putting into operation of [the unilateral measure], Czechoslovakia did not act unlawfully. In the Court’s view, therefore, the notification of termination by Hungary on 19 May 1992 was premature.

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Procedure for the Termination of Treaties Article 65. Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty — 1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefor. 2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in Article 67 the measure which it has proposed. 3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means indicated in Article 33 of the Charter of the United Nations. 4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions in force binding the parties with regard to the settlement of disputes. 5. Without prejudice to Article 45, the fact that a State has not previously made the notification prescribed in paragraph 1 shall not prevent it from making such notification in answer to another party claiming performance of the treaty or alleging its violation. Article 66. Procedures for judicial settlement, arbitration and conciliation: If, under paragraph 3 of Article 65, no solution has been reached within a period of 12 months following the date on which the objection was raised, the following procedures shall be followed: (a) any one of the parties to a dispute concerning the application or the interpretation of Article 53 or 64 may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration;

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(b) any one of the parties to a dispute concerning the application or the interpretation of any of the other articles in Part V of the present Convention may set in motion the procedure specified in the Annex to the Convention by submitting a request to that effect to the Secretary-General of the United Nations. Article 67. Instruments for declaring invalid, terminating, withdrawing from or suspending the operation of a treaty — 1. The notification provided for under Article 65, paragraph 1 must be made in writing. 2. Any act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty or of paragraphs 2 or 3 of Article 65 shall be carried out through an instrument communicated to the other parties. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the State communicating it may be called upon to produce full powers. Article 68. Revocation of notifications and instruments provided for in Articles 65 and 67: A notification or instrument provided for in Article 65 or 67 may be revoked at any time before it takes effect. Authority to Terminate While the Vienna Convention enumerates those who have the capacity to enter into treaties, it does not say who may terminate a treaty. Logically, however, the authority to terminate should also belong to the one who has the authority to enter into the treaty. In the Philippines, however, as in the United States, the authority to conclude treaties is shared between the Senate and the President. Can the President unilaterally terminate a treaty? Goldwater v. Carter,6 discussed this question relative to President Carter’s termination of the defense treaty with Taiwan. No decision was reached except to say that the matter was not yet ripe for judicial review: “The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise, we would encourage small groups or even individual

‘444 U.S. 996 (1979).

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Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict.”

Succession to treaties. When one state ceases to exist and is succeeded by another on the same territory, the question arises whether the new state is bound by the commitments made by its predecessor. This subject is taken up by the 1978 Vienna Convention on the Succession of States with Respect to Treaties which entered into force on November 6,1996. The Convention follows the “clean slate” rule. Article 16 says: “A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates.” But a new state may agree to be bound by the treaties made by its predecessor. The “clean slate" rule, however, does not apply to treaties affecting boundary regimes. Article 11. Boundary regimes A succession of States does not as such affect: (a) a boundary established by a treaty ; or (b) obligations and rights established by a treaty and relating to the regime of a boundary. Article 12. Other territorial regimes 1. A succession of States does not as such affect: (a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of any territory of a foreign State and considered as attaching to the territories in question; (b) rights established by a treaty for the benefit of any territory and relating to the use, or to restrictions upon the use, of any territory of a foreign State and considered as attaching to the territories in question. 2. A succession of States does not as such affect: (a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of a group of States or of all States and considered as attaching to that territory; (b) rights established by a treaty for the benefit of a group of States or of all States and relating to the use of any territory, or

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to restrictions upon its use, and considered as attaching to that territory. 3. The provisions of the present article do not apply to treaty obligations of the predecessor State providing for the establishment of foreign military bases on the territory to which the succession of States relates.

Chapter 4

INTERNATIONAL LAW AND MUNICIPAL LAW

Dualism vs. Monism. When a domestic court is confronted with a problem and one of the opposing parties relies on municipal law as the proper solution and the other party claims that the problem should be solved by international law, what is the court to do? In other words, when there is conflict between international law and domestic law, which is to prevail? There are varying theories which try to answer the question. The dualist or pluralist theory holds that international law and municipal law are essentially different from each other. They differ as to source. Municipal law is a product of local custom or of legislation whereas the sources of international law are treaties and custom grown among states. They differ as regards the relations they regulate. Municipal law regulates relations between individual persons under the state whereas international law regulates relations between states, They also differ regarding their substance. Municipal law is a law of the sovereign over individuals whereas international law is a law between sovereign states. For the dualists, when international law and municipal law conflict, municipal law must prevail. The dualists are positivists with a strong emphasis on state sovereignty. Opposite to the dualist theory is the Monistic Theory or Monism. Under this theory, international law and domestic law belong to only one system of law. However, there are two monist theories. One theory holds that municipal law subsumes and is superior to international law, and a second theory, supported by Kelsen, holds that international law is superior to domestic law. The superiority of international law is seen as flowing from a deep suspicion of local sovereigns and from the conviction that international law can imbue the domestic order with a sense of moral purpose.

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Municipal Law in International Law. At present the prevailing practice accepts dualism at least in its postulate that there are two legal systems. There are prevailing provisions in treaties which recognize dualism. Thus, Article 27 of the Vienna Convention on the Law of Treaties says, “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: “Every State has the duty to cany out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.” This follows the dualist tradition and blocks domestic law from entry into the international arena. Thus, a state which has violated a provision of international law cannot justify itself by recourse to its domestic law. Moreover, a state which has entered into an international agreement must modify its law to make it conform to the agreement. In Exchange of Greek and Turkish Population Case,' the Court adverted to “a principle which is self-evident according to which a state which has contracted a valid international obligation is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.” But even in dualism, the two systems are not completely separated. Thus, Article 38 recognizes the common teachings of domestic law as part of international law. Barcelona Traction Case2 said: If the Court were to decide the case in disregard of the relevant institutions of municipal law, it would without justification, invite serious legal difficulties. It would lose touch with reality.... It is to rules generally accepted by municipal systems,... and not to the municipal law of a particular State, that international law refers. For a situation, moreover, where the court must decide a dispute which turns not upon international law but upon domestic law, as in the Brazilian Loans Case3 the Court stated what it must do: “Once the Court has arrived at the conclusion that it is necessary to apply the

'Advisory Opinion PCU 2

[1964] ICJ Rep. Trance v. Brazil, PCU

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

municipal law of a particular country, there seems to be no doubt that it must seek to apply it as it would be applied in that country....”

International Law in Domestic Law. Dualism also rules when it comes to entry of international law into the domestic sphere. International law, unless it is made part of the domestic system, has no role in the settlement of domestic conflicts. How does international law become part of domestic law for “dualists”? In this regard, there are two theories. The first is the doctrine of transformation. This is based on a strict dualist approach. Since the two systems are distinct and operate separately, for international law to become part of domestic law it must be expressly and specifically transformed into domestic law through the appropriate constitutional machinery such as an act of Congress or Parliament. This doctrine flows by analogy from what is applicable to treaties. Treaties do not become part of the law of a state unless it is consented to by the state. The other theory is the doctrine of incorporation. Blackstone expressed this in his Commentary when he said that: the law of nations, wherever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law, and it is held to be part of the law of the land. What does Philippine law follow? In the case of treaties as international law, they become part of the law of the land when concurred in by the Senate in accordance with Article VII, Section 21 of the Constitution which sets down the mechanism for transforming a treaty into binding municipal law. With regard to customary law and treaties which have become customary law, by saying that the Philippines “adopts the generally accepted principles of international law as part of the law of the land,” the Constitution manifests its adherence to the “dualist” theory and at the same time adopts the incorporation theory and thereby makes international law part of domestic law. This provision makes the Philippines one of the states which make a specific declaration that international law has the force also of domestic law.4 International law

4 Similar provisions are found in the Austrian Constitution, Article 9: “The generally recognized rules of international law shall be considered as component parts of the Federal Law,” and in Article 25 of the Constitution of the Federal Republic of Germany: “The general rules of public international law are an integral part of federal law.”

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therefore can be used by Philippine courts to settle domestic disputes in much the same way that they would use the Civil Code or the Penal Code and other laws passed by Congress. What elements of international law become part of Philippine law by incorporation through Article II, Section 2? Since treaties become apart of Philippine law only by ratification, the principle of incorporation applies only to customary law and to treaties which have become part of customary law. This distinction, however, is sometimes blurred in some Philippine Supreme Court decisions.5 There have been occasions when the Supreme Court made use of international law to settle domestic problems. In Mejojfv. Director of Prisons,6 an alien of Russian descent who had been detained pending execution of the order of deportation was ordered released on bail when after two years the deportation order could not be carried out because no ship or country would take him. The Court said in part:7 Moreover, by its Constitution (Art. II, Sec. 3) the Philippines “adopts the generally accepted principles of international law as part of the law of the Nation.” And in a resolution entitled “Universal Declaration of Human Rights” and approved by the General Assembly of the United Nations of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that “All human beings are bom free and equal in degree and rights” (Art. 1); that “Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status” (Art. 2)\ that “Everyone has the right to an effective remedy by the competent nationals for acts violating the fundamental rights granted him by the Constitution or by law” (Art. 8); that “No one shall be subjected to arbitrary arrest, detention or exile” (Art. 9); etc.

'See Aloysius Llamzon, THE GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW: TOWARDS A STRUCTURALLY CONSISTENT USE OF CUSTOMARY INTERNATIONAL LAW IN PHIUPPINE COURTS, JD Thesis submitted to the Ateneo de Manila School of Law, 2002.