USC LAW

BAR 2022 PRE-WEEK LECTURE

ON PUBLIC INTERNATIONAL LAW
(SOURCES OF INT’L LAW;
REL. WITH MUNICIPAL LAW)

Daryl Bretch M. Largo

Q1: What are the sources of international law?
Article 38 (1) of the Statute of the International Court of Justice provides:
“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 the contesting
States;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. 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.”
◦ This provision is usually accepted as constituting a list of the sources of international law. (M. Mendelson, The International
Court of Justice and the Sources of International Law, in V. Lowe/M. Fitzmaurice (eds.), Fifty Years of the International Court of
Justice, 1996, 63.89.)
Q2: How are the sources of international law treated in
the Philippines?
◦ The sources of international law — international conventions, international custom, general principles of law, and judicial
decisions — are treated differently in our jurisdiction. (J. Leonen in Pangilinan v. Cayetano, G.R. Nos. 238875, 239483 &
240954, [March 16, 2021])
◦ Article II, Section 2 of the Constitution (Incorporation clause) declares that international custom and general principles of law are
adopted as part of the law of the land. No further act is necessary to facilitate this. The Incorporation clause uses the term
“generally accepted principles of international law” which is understood to include (1) customary international law and (2)
general principles of law. (Bayan Muna v Romulo [2011], cited in Pangilinan, supra.)
◦ Treaties, on the other hand, become part of the law of the land by transformation (concurrence by the Senate) under Sec. 21,
Art. VII of the Constitution. A further positive act is required.
Q3: Distinguish between “formal” and “material” sources
of international law?
treaty- consent creates obligatory charater
Formal sources confer upon the rules an obligatory character, while material sources comprise the
actual content of the rules. Thus, the formal sources appear to embody the constitutional mechanism for
identifying law while the material sources incorporate the essence or subject-matter of the regulations.
[Malcolm Shaw, International Law (2019)]

Formal sources are sometimes called “law-creating” sources; while material sources are sometimes
called “law-determining” sources.
Q4: Is there a hierarchy among the sources of
international law?
◦ There is none in the text of the ICJ Statute.
◦ International law is not as clear as domestic law in listing the order of constitutional authority…..
However, judicial decisions and writings clearly have a subordinate function within the hierarchy
in view of their description as subsidiary means of law determination in article 38(1) of the statute
of the ICJ, while the role of general principles of law as a way of complementing custom and treaty law
places that category fairly firmly in third place. [Shaw, International Law (2019)]
◦ But jus cogens norms prevail over treaties (per Art. 53 of VCLT)
Jus Cogens- 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.
Q5: What is a treaty?

◦ A treaty, for the purpose of the application of the VCLT is “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”;
◦ It had been advanced that only “law-making” (vs. “contract”) treaties create international obligations;
◦ Most provisions of the VCLT are codifications of customary international law;
◦ Treaties are binding only upon the parties, unless they reflect customary international law.
Q6: What constitute (or what are the elements of)
customary international law?

• Art. 38 (1), ICJ Statute: “ ….custom as evidence of a general practice accepted as law”;
• Two elements:
(a) Objective Element [state practice]
(b) Subjective Element [opinio juris sive necessitatis]
Q7: What constitute/s “state practice”?

◦ Relevant state practice (practice of states affected by the norm or of states whose activity is regulated by the norm) (North Sea
Continental Shelf Cases);
◦ General, extensive, virtually unform (ibid);

◦ To be able to establish a general, extensive and virtually uniform state practice, some time will usually elapse, but short period of
time does not necessarily bar the creation of a customary international law (ibid) (“instant” or “accelerated” customary
international law)

◦ It is evidenced by: official acts (military, executive, administrative, legislative, judicial), policy statements, conclusion of treaties,
diplomatic correspondence, opinions of national legal advisers, comments at conferences, voting in UN GA Resolutions and
conduct in international organizations (Paquete Habana Case; Nicaragua Case)
Q8: What is the role of treaties in determining state
practice?
◦ The ICJ has recognized that treaties may codify pre-existing customary international law but
may also lay the foundation for the development of new customs based on the norms
contained in those treaties. The Court has even gone so far as to state that “it might be that
… a very widespread and representative participation in [a] convention might suffice of itself,
provided it included that of States whose interests were specially affected”. [North Sea
Continental Shelf cases, P. 42.]
Q9: How do we deduce “opinio juris” from the practice of
states?
◦ When states act in compliance with the norm not merely out of convenience, habit, coincidence, or political
expediency, but rather out of a sense of legal obligation;
◦ Must be uniform and consistent (North Sea Continental Shelf Cases);

◦ Evidenced by:
◦ Attitude of States towards certain General Assembly resolutions
◦ Statements by State representatives
◦ Obligations undertaken by participating States in international forums (the Court provided the example of the Conference on Security and Co-
operation in Europe, Helsinki)
◦ The International Law Commission’s findings that a concept amounts to a customary law principle.
◦ Multilateral conventions. (Nicaragua Case; Libya v Malta Case)
Q10: What is the role of treaties in determining the
existence of opinio juris?
◦ Treaties are also relevant in determining the existence of customary international law
because they help assess how States view certain rules of international law. Hence, the
ratification, interpretation and implementation of a treaty, including reservations and
statements of interpretation made upon ratification, are included in the study. (see North Sea
Continental Shelf cases)
Q11: What is the role of U.N. General Assembly
Resolutions in ascertaining opinio juris?
◦ While UNGA resolutions are non-binding, one can deduce opinio juris based on the
attitude (voting, abstention, etc.) of States towards certain UN General Assembly
resolutions. (Nicaragua case)
Q12: Can actions ex gratia be regarded as opinio juris
or State practice of a particular State?
◦ The voluntariness of an act ex gratia, which is an act done from a sense of moral obligation
rather than because of any legal requirement, may only constitute state practice as in the
case of mere usage (as distinguished from custom).
Q13: Consent of how many States is required for a norm to reach
the level of customary international law?

◦ The second requirement for a rule of general customary international law to come into existence is
that the State practice concerned must be both extensive and representative. It does not, however,
need to be universal; a “general” practice suffices. [ILA, Final Report of the Committee on the
Formation of Customary (General) International Law, Statement of Principles Applicable to the
Formation of General Customary International Law, Report of the Sixty-Ninth Conference, London,
2000,, Principle 14, p. 734]
Q14: Is customary international law binding upon all
states? GR: Yes
XP: Persistent objector doctrine

◦ No. A state, that from the outset consistently objects to a particular practice, is not bound by any rule
of alleged customary international law which may arise from the practice. (“Persistent Objector
Doctrine”);
◦ The objection must be:
1. done before the formation of the custom,
2. persistent,
3. consistent, and
4. clear and unequivocal (through actions or policies)
Q15: Are there different types or categories of customary
international law?
◦ Universal v. Regional
◦ The threshold in the requirements (general, extensive, virtually uniform) is high in regional custom
(Asylum Case)
◦ Ordinary custom v. Jus Cogens
◦ Ordinary custom is subject to a persistent objector and may be replaced with a new norm of similar character;
Q16: What is a norm of jus cogens and which customary
norms qualify as jus cogens?

◦ Jus cogens (from Latin: compelling law; English: peremptory norm) refers to certain fundamental, overriding
principles of international law, from which no derogation is ever permitted. [See Ian Brownlie, Principles of
Public International Law (5th ed., Oxford, 1998).] In practice, jurists' attempt to classify certain rules, rights and
duties as jus cogens or peremptory norms have not met with success: while there is near-universal agreement for
the existence of the category of jus cogens norms, there is far less agreement regarding the actual content of this
category. [Id. at 517.]
◦ Examples of jus cogens norms include: prohibition on the use of force; the law of genocide; racial non-
discrimination; right against torture, crimes against humanity; and slavery.
Q17: What is an erga omnes norm (or obligation erga omnes)
and which customary norms qualify as erga omnes norms?

◦ Erga omnes pertains to the legal implications arising out of a certain crime’s characterization as jus
cogens. (M. Cherif Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes”)
◦ Obligations of a State towards the international community as a whole. [The Barcelona
Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph 33]]
◦ Examples of erga omnes norms include prohibition or punishment of
piracy, genocide, slavery, torture, and racial discrimination.
◦ If the obligation is “towards a group of states sharing the same or common interests”, it is
termed “erga omnes inter partes” obligation. (Barcelona Traction Case)
Q18: How should conflicts between treaties and customary
international law be resolved?

◦ It depends. If a treaty was entered into after a custom (but not jus cogens) has been established, it can be
said that the treaty will govern as regards the parties who entered it. This is because the state-parties’ ratification
of that treaty is an expression of their consent to be bound by such and the principle of pacta sunt servanda
should be observed.
◦ On the other hand, if a treaty was entered into before a custom develops, the rules are not clear. It would
seem that custom, being the latter intention, should prevail. This, however, would run counter to the very nature
of a treaty. In the Continental Shelf case, the court attempted to reconcile treaties with custom. In practice,
therefore, the solution to this situation would be to reconcile custom with treaty provisions.
◦ In any event, if the customary international law is a jus cogens norm, the treaty which is in conflict must yield to
the former.
Q19: How are new norms of customary international law created
and old ones terminated?

◦ A new rule of customary international law is created when it satisfies the two elements,
namely State practice (usus) and a belief that such practice is required, prohibited or allowed,
depending on the nature of the rule, as a matter of law (opinio juris sive necessitatis).
Q20: What are ‘general principles of law’ as sources of
international law?
◦ Some say it means general principles of international law; others say it means general principles of national law.
According to the first definition (general principles of international law), general principles of law are not so much
a source of law as a method of using existing sources—extending existing rules by analogy, inferring the
existence of broad principles from more specific rules by means of inductive reasoning, and so on. According to
the second definition of general principles of law (general principles of national law), gaps in international law
may be filled by borrowing principles which are common to all or most national systems of law; specific rules of
law usually vary from country to country, but the basic principles are often similar. [Malanczuk, p. 48-49.]
◦ Most of the general principles of law are procedural in nature: ex. Good faith, estoppel, clean hands doctrine.
Q21: What weight is given to “general principles of law”
as a source of international law?
◦ As a source of international law, general principles of law are only secondary to international
conventions and international customs. While international conventions and customs are "based on the
consent of nations," general principles of law have yet to have a binding definition. (J. Vitug in USA v Purganan)
◦ Article 38 (1) (c) is identified as being a "secondary source" of international law and, therefore, not ranked at par
with treaties and customary international law. Oppenheim views "general principles of law" as being inclusive
of principles of private or municipal law when these are applicable to international relations. Where, in certain
cases, there is no applicable treaty nor a generality of state practice giving rise to customary law, the international
court is expected to rely upon certain legal notions of justice and equity in order to deduce a new rule for
application to a novel situation. (J. Leonen in Pangilinan v. Cayetano, G.R. Nos. 238875, 239483 & 240954,
[March 16, 2021])
Q22: What are the elements for a principle to qualify as
“general principle of law”?
◦ In order to qualify as a product of the subsidiary law-creating process, a principle of law must fulfill three
requirements: (1) it must be a general principle of law as distinct from a legal rule of more limited functional
scope, (2) it must be recognized by civilized nations, and (3) it must be shared by a fair number of states in the
community of nations. (Pangilinan v. Cayetano, G.R. Nos. 238875, 239483 & 240954, [March 16, 2021], citing
Govt of USA v Purganan[2002])
Q23: What are “generally accepted principles of
international law”?
◦ The most authoritative enumeration of the sources of international law, Article 38 of the Statute of the
International Court of Justice (ICJ Statute), does not specifically include "generally accepted principles of
international law."
◦ To be sure, it is not quite the same as the "general principles of law" recognized under Article 38 (1) (c) of the ICJ
Statute. Renowned publicist Ian Brownlie suggested, however, that "general principles of international law" may
refer to rules of customary law, to general principles of law as in Article 38 (1) (c), or to logical propositions
resulting from judicial reasoning on the basis of existing international law and municipal analogies. (Rubrico v.
Macapagal-Arroyo, G.R. No. 183871, [February 18, 2010])
Q24: What is “non liquet”?

◦ Non liquet is a Latin phrase which means “it is not clear.”

◦ Non liquet is a situation where there is no applicable law. To be specific, the court comes into
the conclusion that the situation in a particular case has no answer from the governing
system of law. This is of particular relevance to international law since international courts
cannot invent law to redress some situations. Lacuna is a similar word which means gap,
and is used to indicate a gap in the law.
Q25: What is the weight of ‘opinions of publicists’ and ‘judicial
decisions’ in international law?

◦ 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. [Art. 38(1)(d), ICJ Statute.]
◦ Judicial and arbitral decisions (domestic or international) can be evidence of customary law;
◦ The word ‘publicists’ means ‘learned writers’ or “scholars of international law” (Bayan Muna v
Romulo) (e.g. Grotius, Lauterpacht, Oppenheim, McNair, Brownlie, current and former ICJ Judges,
ILC). Like judicial decisions, learned writings can be evidence of customary law, but they can also play
a subsidiary role in developing new rules of law. [Malanczuk, p. 50-51.]
Q26: What is “hard law” as distinguished from “soft law”?

◦ “Soft law” refers to international norms that are deliberately non-binding in character but still
have legal relevance, located “in the twilight between law and politics.” (Thürer 2000, 452–
454)
◦ The essence of “hard law” is legally binding obligations non-compliance of which constitutes
international responsibility.
International Law and Municipal Law
◦ Monism v Dualism
◦ Incorporation v Transformation (Strong v Weak)

◦ Two constitutional provisions incorporate or transform portions of international law into the domestic sphere, namely: (1) Article II, Section 2,
which embodies the incorporation method; and (2) Article VII, Section 21, which covers the transformation method. (J. Leonen in Pangilinan
v. Cayetano, G.R. Nos. 238875, 239483 & 240954, [March 16, 2021])
◦ Incorporation clause uses the term “generally accepted principles of international law” which is understood to include (1) customary
international law and (2) general principles of law. (Bayan Muna v Romulo [2011])
◦ Philippine Rules in case of conflict: 1. harmonize; 2. municipal law should be upheld by the municipal courts (Ichong v. Hernandez, 101 Phil.
1155 [1957]; Gonzales v Hechanova 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of
municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). (Secretary of Justice v. Lantion, G.R. No.
139465, [January 18, 2000]);
◦ Note: J. Leonen in Pangilinan Case does not agree with prior jurisprudence applying lex posterior derogat priori when there is a
conflict between treaty and statute.
SOURCES OF INT’L LAW IN PHILIPPINE CASE LAW
◦ State Immunity from Suit; Doctrine of Restrictive or Qualified Immunity:
◦ USA v Guinto [bidding of barber shop contract, commercial]
◦ USA v Ruiz [bidding of repair of naval wharf, governmental]
◦ Arigo v Swift [grounding of naval ship while performing military duties, governmental]
◦ Sanders v Veridiano [change of employment status, governmental]
◦ Syquia v Lopez [lease by Armed Forces of building for military purpose, governmental]
◦ Rep of Indonesia v Vinzon [entering into Maintenance Agreement involving Embassy and official residence of Ambassador,
governmental]

◦ Diplomatic Immunity, applicable to the Holy See, a recognized sovereign by the Philippines (Holy See v Rosario [1994]);
SOURCES OF INT’L LAW IN PHILIPPINE CASE LAW,
cont’d.
◦ Pacta Sunt Servanda, a GAPIL, made applicable to international loan agreement (MIAA v COA [2019]);

◦ Recognition and Enforcement of Foreign Judgment, a GAPIL (Hayashi v Sol Gen [2020]);

◦ UDHR, 1930 Hague Convention on conflict of nationality, 1961 Convention on Reduction of Statelessness, are GAPILs (Poe-Llamanzares v Comelec [2016])

◦ it is a generally accepted principle of international law to presume foundlings as having been born of nationals of the country in which the foundling is found.
(Poe-Llamanzares, supra.)

◦ Any View issued by the Human Rights Committee (HRC) only displays "important characteristics of a judicial decision" and are not per se decisions which
may be enforced outright. These Views, therefore, are mere recommendations to guide the State it is issued against. (Wilson v Ermita [2016])

◦ The Basic Principles and Guidelines and the Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity
("UN Principles on Impunity") are neither a treaty nor have attained the status of generally accepted principles of international law and/or international
customs. They are mere “soft laws”. (Ocampo v. Enriquez, [August 8, 2017];
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