JDn 108 - PUBLIC INTERNATIONAL LAW NOTES Private international law, also known as Conflict of Laws,

are those rules that regulate private transactions of entities

from different states. It is not a branch of international law
but only serves as a guide to deal with conflicts between
What is public international law?
private actors from different states.
Public international law is that branch of public law which
regulates the relations between States and other entities with
international personality. Explanation:​
Private international law deals with situations where
individuals, businesses, or organizations from different
Explanation:​ countries have legal disputes. It decides which country’s laws
Public international law is the set of rules that governs how apply and which court has the authority to hear the case.
countries interact with each other and with international
Imagine a business in the Philippines selling goods to a
organizations like the United Nations. Think of it as a
company in the United States, and there’s a dispute about
"rulebook" for global relations, ensuring that countries follow
payment. Private international law steps in to determine
certain standards when dealing with issues like war, trade, and
whether Philippine or U.S. law applies. It also addresses issues
human rights.
like cross-border marriages, inheritance, or international child
Public international law covers areas like treaties (agreements custody cases. Its goal is to fairly resolve disputes despite the
between countries), diplomatic relations, territorial disputes, involvement of multiple legal systems.
and the protection of global commons like the seas and outer
space. It ensures that countries adhere to norms that promote
peace and cooperation. For example, the Geneva Conventions What is customary international law?
regulate how nations treat prisoners of war and civilians during
Customary international law is a set of norms which states
conflicts.
generally and consistently practice and are followed by them
from a sense of legal obligation.

What is private international law?

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Explanation:​ Examples of jus cogens norms include the prohibition of
Customary international law is like global traditions or habits slavery, torture, and genocide. If two countries sign a treaty
that countries follow because they believe it’s the right thing to that allows slavery, that treaty is automatically void because it
do and feel legally bound to comply. violates jus cogens. This principle ensures that there are
universal standards of behavior that protect human dignity and
For example, the prohibition of genocide and piracy is part of transcend individual agreements or preferences of states. It acts
customary international law. Even if there isn’t a specific as a safeguard against violations of fundamental rights in
treaty, these norms are universally recognized because international relations.
countries have consistently upheld them over time. Customary
international law evolves from repeated actions and a shared
understanding of legal responsibility, making it a dynamic and
integral part of the international legal system.

What is the principle of jus cogens?

The principle of jus cogens, or jus cogens, is that part of

customary international law that has attained the status of a
peremptory norm from which no derogation is permitted.
Norms considered as jus cogens is an overriding principle of
international law that binds all states and renders void those
treaties that are contrary to it.

Explanation:​
Jus cogens are the most important rules in international law
that no country can ignore or go against, even if they agree
otherwise. These are non-negotiable principles that apply to all
nations.

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GENERAL PRINCIPLES 1814-15), followed by the early versions of several important
treaties, including those establishing rules for the navigation of
A. International Law Defined rivers (1815), those establishing the neutrality of Switzerland
(1831) and Belgium (1831), the first codified law on maritime
1. Origins warfare (Declaration of Paris, 1856), and, much later, the
Kellogg-Briand Pact (1928), which sought to limit or abolish
The intellectual origins of international law run concurrently
war.
with the development of sovereignty. Initially, Hugo Grotius
and Alberico Gentili (16th century), both of competent Explanation:​
theological training, characterized international law as International law took a big step forward after the Napoleonic
municipal law writ large. Wars, when countries realized they needed agreements to
maintain peace. This led to early treaties, such as those
Explanation:​
ensuring Switzerland's neutrality, regulating river navigation,
The beginnings of international law emerged alongside the idea
and reducing conflicts at sea. The Kellogg-Briand Pact in 1928
of sovereignty—where each country is independent and
even tried to ban war altogether.​
governs itself. Scholars like Hugo Grotius (known as the
The Congress of Vienna set the stage for diplomacy by
"Father of International Law") and Alberico Gentili laid its
introducing mechanisms like arbitration to resolve disputes
foundations, using their theological (religious law) background
peacefully. Later, treaties like the Declaration of Paris
to expand local laws to the international level.​
standardized maritime warfare rules, while the Kellogg-Briand
​
Pact, although unsuccessful in preventing WWII, inspired
Hugo Grotius is particularly remembered for promoting the
modern efforts to outlaw war through the United Nations
idea that nations must respect certain rules even during war,
Charter.
such as protecting civilians and adhering to treaties. These
early ideas formed the bedrock of modern international law, 3. Terminology
transitioning from religious to secular reasoning.
The term "international law" was first formally used by Jeremy
2. Breakthrough Bentham in 1789.
By the early 19th century, following the Napoleonic wars, the Explanation:​
first major peace summit took place (Congress of Vienna, The phrase "international law" was coined by Jeremy Bentham,

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a philosopher, to describe the laws governing how countries 5. Modern Definition
interact with each other.​
​ The law that deals with the conduct of States and international
Bentham's use of "international law" marked a shift from the organizations, their relations with each other, and, in certain
older term "law of nations." His broader vision included issues circumstances, their relations with persons, natural or juridical.
like trade, war, and diplomacy. Today, this term encompasses
Explanation:​
treaties, customs, and other legal frameworks shaping relations
Modern international law has expanded to cover not just
between states and international bodies.
countries but also international organizations (like the UN) and
4. Traditional Definition individuals or companies in specific cases.​
​
That branch of public law which regulates the relations of Modern international law is broader, addressing issues like
States and of other entities which have been granted human rights (e.g., holding leaders accountable for war
international personality. crimes), environmental agreements (e.g., climate change
treaties), and trade laws affecting multinational corporations. It
Explanation:​ acknowledges that international relations aren’t limited to
Traditional international law deals with rules that govern states but also include global challenges impacting everyone.
interactions between countries and certain organizations or For instance, treaties like the Paris Agreement on climate
groups recognized on the global stage, such as the United involve countries, corporations, and individuals working
Nations.​ together to solve global issues.
​
This definition focuses on entities with "international
personality," meaning they can make treaties, sue, or be sued
under international law. For example, countries, international B. Basis of International Law
organizations like NATO, and even the Vatican have this status.
It contrasts with "objects," such as people or property, which 1. The Natural Law School
are subject to these laws but don’t create or enforce them.
There is a natural and universal principle of right and wrong,
independent of mutual intercourse or compact, which can be
discovered and recognized by every individual through the use

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of his reason and conscience. Since individuals compose the This perspective views international law as a set of agreements
State whose will is but the collective will of the inhabitants, the (like treaties) voluntarily made by states. For example,
State also becomes bound by the natural law. countries agreeing to limit greenhouse gas emissions through
climate treaties is an example of positivist international law.
Explanation:​ This approach emphasizes mutual consent and practical
The Natural Law School believes there are universal rules of enforcement rather than moral principles.
right and wrong that apply to everyone, regardless of
agreements between countries. These rules can be understood 3. The Eclectic or Grotian School
by anyone using logic and conscience. Since countries are
made up of people, they also must follow these universal rules.​ Insofar as it conforms to the dictates of right reason, the
​ voluntary law may be said to blend with the natural law and be,
This idea assumes that some principles—like justice and indeed, an expression of it. In case of conflict, the natural law
fairness—exist naturally and do not depend on written laws or prevails, being the more fundamental law.
treaties. For example, protecting human life and avoiding harm
Explanation:​
to others are seen as universal duties. International laws
The Grotian School combines ideas from natural law and
inspired by this view often reflect ethical norms, like those
agreements between countries. It says international laws should
found in human rights conventions.
follow logic and fairness, but when agreements and natural law
2. The Positivist School clash, natural law wins.​
​
The binding force of international law is derived from the This school recognizes the importance of ethical principles
agreement of the States to be bound by it. In this context, (natural law) while acknowledging the need for practical
international law is not a law of subordination but of agreements (voluntary law). Hugo Grotius, a major proponent,
coordination. laid the foundation for modern international law by blending
these approaches. For instance, treaties about maritime trade
Explanation:​ must align with fundamental fairness.
The Positivist School says that international laws exist because
countries agree to follow them. These laws are about ​
cooperation between equals, not one country ruling over
another.​

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4. Other Suggested Basis: Ubi Societas Ibi Jus that they recognize and follow it.​
​
Under this concept, law is considered as the hallmark of any This pragmatic view emphasizes that international law works
political community which intends to act together for the because states behave as if it’s real and binding. For example,
common good. Law is therefore considered necessary for when countries settle disputes at the International Court of
society to function, and, because it is necessary, it is ex Justice, they demonstrate their belief in and reliance on
hypothesi binding. international legal frameworks. It highlights that the system’s
legitimacy comes from consistent practice and mutual
Explanation:​
recognition.
This concept means "where there is society, there is law." It
argues that laws are essential for any group of people working
together for the common good. Since laws are necessary, they
are automatically binding.​ C. Theories of International Relations
​
This idea highlights the role of law as the glue that holds 1. Realist Theory
societies together. In an international context, it suggests that
global cooperation (e.g., on climate change, trade, or security) This theory provides that States are in a constant struggle for
requires universally accepted rules to ensure fairness and order. power; therefore, each State can be reasonably assumed to be
acting only in pursuit of their individual interests.
5. Belief of States
Explanation:​
Another cogent argument for international law is simply that it The Realist Theory sees countries as always competing for
exists because States believe it exists. This belief can be seen power. Each country is assumed to act only for its own benefit,
from the communications the States make to each other, like a player in a game who’s trying to win no matter what.​
communications which notably contain substantial references ​
to law and other legal references. This theory explains why countries build armies, form
alliances, or seek resources—they want to maximize their
Explanation:​ power and security. For example, during the Cold War, the U.S.
International law exists because countries act like it does. They and Soviet Union acted based on their interests, each trying to
refer to it in their agreements and communications, proving outmaneuver the other to maintain global dominance.

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2. Institutionalist Theory for them.​
​
This theory is more interested with understanding international For instance, countries might form free trade agreements to
relations through the interplay of States in different institutions. boost their economies. If cooperation doesn’t lead to benefits,
As such, the relations of States are a product of their interaction they may avoid it. This theory emphasizes economic interests
not only among themselves, but also with the various and mutual gains over power struggles.
institutions and hierarchical structures in the global political
sphere. 4. Democratic Peace Theory

Explanation:​ This theory provides that democratic States are generally

The Institutionalist Theory focuses on how countries interact hesitant to go to war with other democratic States. [See also:
through organizations like the United Nations or World Trade Golden Arches Theory of Conflict Prevention]
Organization. It sees international relationships as shaped by
these global institutions and systems.​ Explanation:​
​ The Democratic Peace Theory says democracies rarely fight
This theory highlights the role of cooperation and rules. For each other. Countries with similar values and systems are less
example, international trade agreements reduce conflicts likely to have conflicts.​
because they create shared benefits and rules everyone agrees ​
on. Institutions like the UN help mediate disputes, ensuring This idea suggests democracies prefer diplomacy and mutual
that countries work together more smoothly. understanding. For example, the U.S. and Canada, both
democracies, have never gone to war despite sharing a long
3. Neoliberalist Theory border. The "Golden Arches Theory" adds that countries with
strong economic ties (like having McDonald's) are less likely
This theory proceeds from an assumption that States are geared to fight.
towards gains and profit; therefore, relations are often
dependent on whether the same would be profitable or not. 5. Hegemonic Stability Theory

Explanation:​ This provides that the global system is likely to be stable when
Neoliberalist Theory sees countries as motivated by money and controlled by a single State, which would be known as the
benefits. They’ll cooperate with other nations if it’s profitable Hegemon.

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Explanation:​ international organizations, while Private International Law is
The Hegemonic Stability Theory argues that the world is more about disputes between private individuals or businesses from
stable when one powerful country (the "Hegemon") leads and different countries. Public International Law uses global
maintains order.​ enforcement systems, while Private International Law relies on
​ local courts and domestic legal procedures.​
For example, after World War II, the U.S. emerged as a global ​
leader, helping rebuild economies and creating institutions like For example, Public International Law would address treaties
the IMF and World Bank. This leadership helped maintain between nations or war crimes, enforced by international
stability during the post-war period. However, critics argue this bodies like the United Nations. On the other hand, Private
concentration of power can also lead to domination or International Law would apply if a Filipino company sues a
exploitation by the leading state. U.S. company for breach of contract, determining which
country’s courts and laws will handle the case. Private
International Law is closer to domestic law and focuses on
resolving cross-border disputes for private parties.
D. Public International Law Distinguished From
2. International Morality or Ethics
1. Private International Law
Principles which govern relations of States from the standpoint
As to nature, international law is not municipal; as to remedies, of conscience, morality, justice, and humanity.
international modes vs. local tribunals; as to parties,
international entities not private persons; as to enforcement, Explanation:​
international sanctions not local sheriff/police. Furthermore, This refers to the idea that countries should act ethically,
Private International Law (or Conflicts of Laws) is not really a considering justice and humanity when dealing with each other.​
branch of international law but is rather a part of domestic law ​
dealing with disputes that arise from private transactions For example, international morality encourages nations to help
between individuals or companies and corporations from one during humanitarian crises, such as sending aid to earthquake
country vis-à-vis their counterparts in another country. victims in another country. While not legally binding, these
principles guide behavior to promote fairness and compassion
Explanation:​ in international relations.
Public International Law deals with rules between countries or

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3. International Comity 5. International Administrative Law

Rules of politeness/courtesy observed by States in their Body of laws which regulate the relations and activities of
relations with other States. national and international agencies with respect to their
material and intellectual interests which have received
Explanation:​ international recognition.
International comity is like good manners for countries, where
they show respect and courtesy to one another to maintain Explanation:​
smooth relations.​ This refers to the rules that govern how international
​ organizations, like the UN or World Health Organization, and
For instance, allowing a foreign ambassador diplomatic national agencies work together and manage shared resources
immunity (freedom from local prosecution) is a practice of or issues.​
international comity. These unwritten rules foster mutual ​
respect and avoid unnecessary conflicts between nations. For instance, laws that regulate how the World Health
Organization collaborates with countries during a pandemic
4. International Diplomacy fall under international administrative law. It ensures proper
coordination and fair sharing of resources, such as vaccines or
Objects of international policy and the conduct of foreign
research data, to achieve global objectives.
affairs.

Explanation:​
International diplomacy refers to how countries communicate E. International Law as True Law
and negotiate to achieve their goals in foreign policy.​
​ 1. The Austinian Dilemma
For example, diplomacy involves negotiating trade agreements,
resolving territorial disputes, or forming alliances. It’s the art of John Austin (19th-century positivist) states that laws are
building relationships and solving problems without resorting commands of a sovereign which receive the habitual obedience
to conflict. Diplomats act as representatives of their of the members of an independent political society.
governments to achieve these aims. International law, according to Austin, does not follow this

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precept. International law, furthermore, lacks an effective focusing instead on its reliance on mutual respect and ethical
enforcement mechanism. standards. For example, while treaties have no centralized
enforcement, states adhere to them to avoid damaging their
Explanation:​ reputation or triggering economic sanctions.
John Austin believed that laws are orders from a ruler or
government that people habitually obey. Since international 3. International Law as Law
law is not enforced by a single global authority, Austin argued
it doesn’t qualify as “true law.”​ Although it may not comply with John Austin’s concept of law
​ (enforced by sovereign political authority), nonetheless it is
Austin’s criticism highlights that international law relies on still true law. This is because despite the prevailing belief that
voluntary compliance rather than centralized enforcement. international law does not comply with the requirements of
However, international laws are still influential because states sovereign issuance, compulsion, and penalty, it still has such
respect them to maintain order and cooperation, even without a mechanisms for enforcement such as self-help, force, collective
global “police force.” action, and resort to the UN.

2. Command Theory Explanation:​

Even if international law doesn’t fit Austin’s definition of law,
Similar to the Austinian Dilemma, the “command theory” it’s still considered real law. Countries enforce it through
states that laws are commands of the sovereign authority and means like cooperation, collective actions, or UN interventions.​
are backed by sanctions. Those who subscribe to this theory ​
see international law as merely a “code of rules of conduct of International law uses tools like sanctions, diplomatic pressure,
moral force” and is simply “positive international morality.” and collective action (e.g., NATO interventions) to ensure
compliance. These mechanisms demonstrate that enforcement
Explanation:​ can exist without a centralized authority, making international
Command Theory says laws must be orders from a ruler or law effective in practice.
government with consequences for disobedience. People who
follow this idea see international law as more of a moral 4. Amendment and Adjudication
guideline than actual enforceable rules.​
​ Amendments (rules of change) are needed by legal systems.
This view downplays international law’s binding power, International law, unlike legislation, has rules based on consent

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(treaties and customs). Thus, the focus here is on self-interest maintain peace and order.​
rather than common good. Notably, adjudication is also with ​
consent. For example, if a country violates a trade agreement, others
may impose tariffs or cut off trade as retaliation. This
Explanation:​ decentralized enforcement ensures that international law
International laws change when countries agree to modify remains respected even without a global enforcer, relying on
treaties or customs. This process focuses on mutual benefits tools like sanctions, public opinion, or military intervention.
rather than collective welfare.​
​ 6. Enforcement vs. Enforceability
Unlike domestic laws that can be changed unilaterally by
governments, international law requires consent from all Actual enforcement is irrelevant to the binding quality of
parties involved. For instance, climate agreements like the international law, as enforcement is not what is meant by the
Paris Agreement evolve based on the consensus of the term law. What is material is that international law is
participating nations. “enforceable” even though it lacks a police force or
compulsory court.
5. Application, Enforcement, and Compliance
Explanation:​
The absence of a central lawmaking authority and the International law doesn’t need a global police force to be
jurisdictional defects weaken compliance expectations binding. What matters is that it can be enforced through other
compared to domestic laws. Enforcement is decentralized, means when necessary.​
unlike municipal law, and can be done through peaceful ​
measures or otherwise. These are balanced by risks of For example, even without a global court forcing compliance,
political/economic retaliation, public opinion, UN machinery, international trade laws work because countries enforce them
and the conviction that obedience benefits the public good. through economic measures or arbitration. The idea of
enforceability highlights that international law’s strength lies in
Explanation:​ its ability to adapt and work through decentralized
Since there’s no global government to enforce international mechanisms.
law, enforcement depends on decentralized actions like
diplomacy, economic sanctions, or UN interventions. Countries
also follow these laws because it’s in their best interest to

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F. Relationship with Municipal Law Explanation:​
Monists see international law as automatically part of a
1. Horizontal vs. Vertical country’s legal system. Dualists, on the other hand, believe
international law and domestic law are separate systems,
International law is "horizontal" by nature, whereas domestic
requiring international rules to be adopted into local law before
or municipal law is "vertical." This means that in international
they take effect.​
law, all states are more or less on equal footing and are
​
generally unable to compel each other to act, whereas under
For example, under a monist system, a treaty signed by a
municipal law, a hierarchy exists whereby those on top can
country automatically becomes enforceable within that country.
give commands to those lower in the system.
In a dualist system, like in the UK, Parliament must pass a law
Explanation:​ incorporating the treaty before it has legal effect domestically.
In international law, countries are considered equals, and no
3. Written in the Law
single country can force another to act. In contrast, domestic
law operates like a pyramid, where higher authorities (e.g., States with written constitutions often clarify how international
governments) have power over individuals and institutions law is treated domestically. For example, Germany’s Basic
below them.​ Law states that international law forms part of federal law,
​ while South Africa’s Constitution recognizes customary
For example, the UN cannot directly force a country to comply international law unless it conflicts with the Constitution.
with international agreements; it relies on collective
enforcement measures. In contrast, a local government can Explanation:​
enforce laws like taxes through courts or police. Some countries’ constitutions explicitly state how international
law fits into their legal system. For example, Germany treats
2. Monist vs. Dualist international law as part of its national laws, while South
Africa accepts customary international law unless it clashes
Monists believe there is no significant distinction between
with its Constitution.​
international and municipal law. Dualists, however, argue that
​
municipal law is issued by a sovereign authority and applies to
This ensures clarity in how international obligations are
individuals, while international law is agreed upon by states
implemented domestically. Countries like the Philippines adopt
and applies to relations between them.

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international law principles into their domestic laws through country, while international law governs relations between
explicit constitutional provisions. countries.​
​
4. The Prism of State Practice For instance, environmental agreements may guide domestic
laws on pollution, while national legislation on property rights
The application of international law is understood through state
is unlikely to be affected by international law.
practice. For instance, in the UK and the US, domestic laws
take precedence over customary international law, while in 6. Incorporation vs. Transformation
Malaysia, customary law is automatically incorporated.
●​ Incorporation:​
Explanation:​ International law automatically becomes part of
Different countries apply international law in unique ways. In domestic law. For example, the Philippines incorporates
some places, like the UK, domestic laws can override universally accepted principles of international law
international rules, while in others, like Malaysia, international directly into its legal system.
customs are automatically part of the legal system.​ ●​ Transformation:​
​ International law requires legislation before becoming
This reflects how nations balance sovereignty with part of domestic law. For instance, international human
international obligations. For example, in the US, international rights laws may need local laws to enforce them.
treaties require Senate approval before they become
enforceable. Explanation:​
Incorporation means international rules automatically apply
5. The Theory of Coordination domestically, while transformation requires passing a local law
to enforce international rules.​
This doctrine states that domestic law and international law
​
operate in separate spheres, but they can still influence each
Incorporation is simpler and quicker, while transformation
other. Each is supreme in its own field and should not create
ensures compatibility with local laws. Both methods aim to
conflicts.
harmonize international obligations with domestic legal
Explanation:​ systems.
Domestic and international laws handle different issues and
shouldn’t conflict. Domestic laws govern individuals within a

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7. Conflict Between International and Municipal Law ○​ Vienna Convention on the Law of Treaties
(VCLT): States cannot use internal laws as
1.​ On the Domestic Sphere (Local Court Deciding): justification for failing to follow treaties.
○​ If the conflict is with the Constitution: The
Constitution prevails. In the Philippines, treaties Explanation:​
and statutes can be invalidated if they conflict At the international level, countries can’t use their local
with the Constitution. laws to justify breaking international rules or treaties.​
○​ If the conflict is with a statute: The newer law ​
(either statute or treaty) takes precedence under For instance, the International Court of Justice (ICJ)
the principle lex posterior derogat priori (the ruled in the LaGrand Case (2001) that the US violated
later law repeals the earlier one). a treaty by failing to inform a detained German national
of his rights under international law, even though it
Explanation:​ complied with US domestic law.
In domestic conflicts, the Constitution always wins over
international law. If a treaty clashes with a local law, the
one enacted more recently is followed.​
​ G. Sources of International Law
For example, if a local law bans a practice allowed
under an international treaty, the treaty may not be 1. In the domestic sphere, the constitution, legislative
enforced unless it’s newer or incorporated specifically enactments, and case law (stare decisis) constitute such
into domestic law. sources. On the international plane, it is a bit complicated
because there is no body likened to a national legislature, no
2.​ On the International Sphere (International Tribunal fundamental law, and the doctrine of precedents is not
Deciding): applicable.
○​ Superiority: International law prevails over
municipal law. A state cannot use its local laws Explanation
as an excuse to ignore its international
Domestically, laws are derived from a country's constitution,
obligations.
laws passed by the legislature, and judicial decisions that set
precedents. These are concrete and well-established

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frameworks. Internationally, things are more complex because time, which eventually becomes accepted as custom, serves as
there is no equivalent to a national government or a the material source.​
constitution that all countries follow. Furthermore, courts in ​
international law don't always follow previous decisions as This distinction helps understand why laws exist and what
binding precedent. gives them their power. Material sources could include
economic needs, moral values, or social practices, while formal
In international law, agreements between countries (treaties) sources include treaties, legislation, or court decisions. In
and practices that evolve into customs play a significant role in international law, recognizing this distinction allows countries
filling this gap. The absence of a universal governing body to better address the practical and theoretical origins of
adds challenges but also provides flexibility for states to disputes.
negotiate and create agreements tailored to their needs.
3. Article 38 of the ICJ Statute is widely regarded as the
2. Material and Formal Sources cornerstone for identifying the sources of international law. It
lays out a hierarchy of legal materials that courts can use to
Material sources are distinguished from formal sources insofar
resolve disputes. This provision ensures consistency and
as it is the material sources from which the substance of the
predictability in international adjudication by defining the rules
law is derived, while it is the formal sources that become the
and evidence that the ICJ can consider.
basis of the validity and force of law. An example of this can
be seen in the case of custom: while custom itself is a formal 1.​ Primary Sources:
source of law, the State practice that was taking place even ○​ Treaties and Conventions: Agreements
before such practice crystallized into custom can be considered between nations that outline specific rules they
as the material source. must follow. For instance, treaties like the
United Nations Charter and the Geneva
Explanation
Conventions.
Material sources are the origins or reasons behind a ○​ Customary International Law: Practices that
law—where its ideas or principles come from. Formal sources, countries consistently follow out of a sense of
on the other hand, are the legal processes or methods that give legal obligation. For example, the prohibition of
a law its authority and enforceability. For example, customs are genocide is recognized as a customary law.
formal sources of law, but the consistent behavior of states over

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 ○​ General Principles of Law: These are universal Convention made common practices into
legal concepts found in most domestic legal official rules.
systems, such as fairness and due process. ○​ Create: This is when a treaty introduces
2.​ Secondary Sources: brand-new rules or obligations that didn’t exist
○​ Judicial Decisions: Previous rulings by before, such as bilateral trade agreements that
international courts or domestic courts that can establish unique regulations for two countries.
provide guidance. 2.​ Conflicts Between Treaties
○​ Teachings of Publicists: Scholarly writings ○​ Lex Posterior: If two treaties contradict each
from respected legal experts, which help other, the newer one overrides the older one.
interpret and develop international law. ○​ Lex Specialis: If one treaty is more specific and
detailed than another, it takes priority over the
PRIMARY SOURCES general one.​
Example: If a global environmental treaty
I. Treaties and conventions are agreements between countries
conflicts with a regional one focused on
that create rules the countries agree to follow. These can be
preserving a specific ecosystem, the regional
general (like global environmental standards) or specific (like
treaty may prevail because it’s more specific.
agreements between two countries on trade). They are vital
3.​ Bilateral vs. Multilateral Treaties
tools for maintaining order and resolving disputes between
○​ Bilateral Treaties: These involve two
nations.
countries, usually focusing on specific matters
1.​ Codify, Crystallize, or Create Obligations like trade or border agreements.
○​ Codify: This means organizing and simplifying ○​ Multilateral Treaties: These include multiple
existing rules so they are easy to understand and countries and often address broader issues like
follow. Example: The 1982 UNCLOS (United climate change or human rights, setting
Nations Convention on the Law of the Sea) common standards for all parties.
codified sea laws. 4.​ Treaties as Binding Laws
○​ Crystallize: Here, a treaty formalizes what ○​ A treaty is like a contract; it becomes the "law"
countries were already doing informally. for the countries that sign it. However, only
Example: The 1958 Geneva Continental Shelf countries that agree to the treaty are generally
bound by it.

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 ○​ Exception - Jus Cogens: Certain universal agreements enforce accountability and protect rights
principles, like prohibitions against slavery or globally.
genocide, apply to all countries, even if they
didn’t explicitly agree to a treaty about them. By understanding treaties and their dynamics, nations can
collaborate better, resolve conflicts, and uphold shared values
Expanded Insights: on a global scale.

●​ Why Codify or Crystallize Laws?​ II. International Customs​

Codification helps reduce confusion by compiling These are unwritten practices that become legally binding
scattered rules into a single, clear document. because they are consistently followed by countries over a
Crystallization ensures that practices widely accepted significant period. For a custom to be recognized as law:
by nations are formalized into law, preventing future
disputes. 1.​ It must be a regular and consistent practice among
many countries.
●​ Importance of Lex Posterior and Lex Specialis:​
2.​ It should have been followed for a substantial period.
These principles help prevent legal confusion when
3.​ Countries must follow it because they believe it’s
multiple treaties are in force. They ensure that newer or
legally required (opinio juris).
more specific rules take precedence, allowing
international law to evolve and adapt over time. Definition:​
●​ Jus Cogens and Global Responsibility:​ In simple terms, an international custom is a practice repeated
Jus cogens (compelling law) principles are the bedrock often enough that it’s accepted as a binding rule. For example,
of international law, reflecting fundamental values many countries avoid targeting unarmed fishing vessels in
shared by the global community. Even if a country does wartime as a customary rule.
not sign a treaty banning acts like genocide, they are
still obligated to avoid such practices. Scope:​
●​ Real-World Applications:​ Customs can be global or specific to a region. For example:
Treaties like the Rome Statute (establishing the
International Criminal Court) and the Vienna ●​ In the Asylum Case, a South American custom was
Convention on Diplomatic Relations showcase how argued, but it had to be proven.
●​ In the Right of Passages Case, Portugal failed to show a
local custom existed, so their claim was denied.

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Elements:​ 3.​ Duration: The behavior must continue long enough to
Two key things make up a custom: be recognized.

1.​ What countries do (State practice). International customs are dynamic. For example, modern
2.​ Why they do it (opinio juris - their belief that they’re issues like cyber warfare may lead to new customs based on
legally bound). how nations respond to cyberattacks. However, rapid changes
like those after 9/11 challenge the traditional requirement for
Evidence of Custom:​ customs to develop over time. Scholars argue whether "instant
Customs can be shown through examples like government customs" can exist in today’s fast-paced global environment.
decisions, press statements, and resolutions by the United
Nations. Just because many countries follow a practice doesn’t III. General Principles of Law: These are the basic rules of
guarantee it’s a custom. Evidence can argue otherwise. fairness and justice that almost all countries agree on. They are
based on common sense and the shared values of civilized
The Baxter Paradox:​ nations. Examples include:
If too many countries sign treaties that formalize practices, the
same practices might lose their status as customary law. Why? ○​ Res judicata (cases already decided cannot be
Because following a treaty is different from following custom reopened).
based on legal belief. ○​ Prescription (a certain period limits how long
you can bring a legal claim).
State Practice:​ ○​ Pacta sunt servanda (agreements must be
State behavior includes what a country says, does, or even does honored).
not do. Examples of State practice include: ○​ Estoppel (you can’t go back on your word if
others relied on it).
1.​ Uniformity: There doesn’t need to be perfect
agreement among countries, but most should behave the These principles make sure that basic rules of justice apply
same way (e.g., fishing practices in the even if there isn’t a specific treaty or law in place. For instance,
Anglo-Norwegian Fisheries Case). in the Agustin vs. Edu case, the principle that agreements
2.​ Generality: Practices should involve many countries, should be kept (pacta sunt servanda) was used to justify a
though not all. traffic rule requiring warning devices.

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Definition: General principles are universal legal rules found anytime. Instead, ex aequo et bono takes into account broader
in nearly all countries. Think of them as the “common ground” issues like economics or politics.
that makes international disputes fair and consistent. For
example, it’s common sense that if someone causes harm, they Valuable Insights
should compensate the injured party.
●​ Practical Utility: General principles are like the glue
Purpose: These principles prevent a situation called that holds international law together, ensuring justice
non-liquet, where a court can’t make a decision because no law even when written laws are silent. Without them, courts
applies. Even if treaties or customs don’t cover the issue, the might refuse to hear cases, leaving disputes unresolved.
court can still decide using general principles of law. In ●​ Fairness Across Borders: By relying on shared legal
essence, they act as a safety net to ensure justice is served. values, these principles make international courts more
impartial and accessible.
Scope: While it’s unclear how broad these principles are, ●​ Modern Relevance: As the world becomes more
courts often use them in cases involving both personal matters interconnected, these principles help address new legal
(like property disputes) and government actions. Some key issues, such as environmental disputes or global trade
examples include: conflicts, where no specific treaties exist.

●​ Estoppel: In one case, Thailand couldn’t deny ​

Cambodia’s claim to territory because Thailand had SECONDARY SOURCES
already acted as though the land belonged to Cambodia.
●​ Res Judicata: Courts respect past decisions, avoiding I. Judicial Decisions: Judicial decisions from courts like the
reopening settled cases. International Court of Justice (ICJ) are not considered primary
●​ Compensation: If someone’s property is unfairly taken, sources of international law. Instead, they help clarify existing
they should be paid for their loss, as seen in the rules and determine if certain practices or norms are accepted
Chorzow Factory Case. globally. National court decisions can also play a role, but only
if the court is respected for fairness and doesn't contradict
Note on Ex Aequo et Bono: This principle means the court can international rulings.
decide based on what’s fair and just, but only if both parties
agree to it. It’s not the same as “equity,” which judges can use

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 ●​ Binding Effect: Decisions by the ICJ are only binding ●​ Role: These writings help explain complex legal
on the countries involved in the case and only for that concepts and are widely respected.
specific case. ●​ Limitations: Their value diminishes over time if not
●​ Judicial Legislation: Sometimes, international courts updated to reflect current developments.
create new rules through their decisions when no clear
existing law applies. For example, in the Expounding Insights:
Anglo-Norwegian Fisheries Case, the ICJ made a
decision based on Norway's historical and economic 1.​ Judicial Decisions as Tools, Not Laws: Judicial
practices rather than existing laws. decisions serve as interpretive aids to understand
●​ Judicial Legislation and Custom: Questions arise existing legal norms. The distinction between primary
whether a court ruling, based on established practices of sources (like treaties) and judicial decisions ensures that
states, becomes a new legal custom. These debates are courts don't overreach their mandate by becoming
significant for shaping future international law. legislators.
●​ Judicial Consistency: Courts try to avoid making 2.​ Evolution of Law Through Cases: The idea of
decisions that conflict with previous rulings unless "judicial legislation" highlights how courts contribute to
absolutely necessary. This ensures stability and the dynamic nature of international law. Courts fill gaps
predictability in international law. in unclear areas, balancing legal stability and
●​ Local Jurisprudence: National laws and court adaptability.
decisions are not international laws but reflect the 3.​ Publicists’ Influence on Law: The inclusion of
country’s stance and behavior, which may influence publicists’ writings emphasizes the value of academic
global understanding. thought in shaping international norms. Historically,
●​ Judicial Courtesy: The ICJ avoids giving opinions on scholars like Hugo Grotius laid the foundation for
cases that are already under judicial consideration if its modern international law, and their contributions
input might interfere with the ongoing process. remain influential despite not being binding.
4.​ Judicial Courtesy and Diplomacy: The ICJ’s refusal
II. Writings of Publicists: Scholarly works by experts in to intervene in pending cases showcases its respect for
international law, such as Grotius or Lauterpacht, provide judicial integrity and non-interference, reinforcing its
valuable insights and arguments. While these writings aren't role as a neutral arbiter.
laws, they guide lawyers, judges, and policymakers.

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By understanding these secondary sources, one can see how 5. Other Sources of Law - Beyond the Basics
international law is a blend of state practices, academic
scholarship, and judicial interpretation—constantly evolving to Sometimes, international law derives from less formal sources
meet new challenges. not directly listed in Article 38 of the ICJ Statute. These
include soft laws and lex mercatoria:
4. Jus Cogens - Supreme Rules in International Law
a. Soft Laws:
Jus cogens norms are rules in international law that cannot be
ignored, violated, or overridden. They represent universal ●​ These are guidelines or recommendations, not
principles accepted by all nations, like the prohibition of mandatory rules. They influence behavior but aren't
slavery, piracy, and torture. For example, the Hilao v. Estate of legally binding. For example, in the Philippines, soft
Marcos case ruled that torture by government officials was a laws like health regulations were deemed non-binding
violation of jus cogens. but influential (Pharmaceutical and Health Care
Association of the Philippines v. Duque).
●​ How These Rules Work: If any treaty or agreement
contradicts a jus cogens norm, it is automatically void b. Lex Mercatoria (Law of Merchants):
under Article 53 of the Vienna Convention on the Law
●​ This refers to international commercial customs and
of Treaties (VCLT). Even if countries try to bypass
practices established by merchants over time. While it’s
these norms with new treaties, they will fail because
not imposed by any single government, it’s widely
these norms are supreme and unchangeable unless
accepted in international trade.
replaced by another norm of the same level of authority.
Soft laws are like "suggestions" rather than rules. They don't
Think of jus cogens norms as the "golden rules" of
carry the force of law but can guide international behavior. On
international law—absolute rules that all countries must follow,
the other hand, lex mercatoria is like the unwritten "rules of the
no exceptions. They uphold the moral and ethical standards of
game" for international business—practices everyone follows
global society, ensuring that atrocities like genocide and
because they work, even if they're not official laws. Together,
slavery are universally condemned.
these sources add flexibility and adaptability to international
law, making it more responsive to modern needs.

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SUBJECTS OF INTERNATIONAL LAW Sovereignty and Legal Personality:

In international law, "subjects" are entities endowed with legal Sovereignty grants states supreme authority within their
personality, meaning they possess rights and obligations and territories and independence from external interference. This
have the capacity to engage in legal relations on the sovereignty confers legal personality, enabling states to:
international stage. Traditionally, states were the sole subjects,
but over time, this has expanded to include individuals, ●​ Enter into Treaties: Form binding agreements with
juridical entities, and international organizations. other states.
●​ Maintain Diplomatic Relations: Engage in formal
interactions with other nations.
●​ Seek Redress: Bring claims before international courts
1. The State for violations of international law.

Definition and Characteristics: Recognition of States:

States are the principal actors in international law, possessing Recognition by existing states, while not a prerequisite for
full sovereignty and independence. The Montevideo statehood, facilitates international relations. Recognition can
Convention of 1933 outlines four essential criteria for be:
statehood:
●​ De Jure: Formal and legal acknowledgment.
1.​ Permanent Population: A stable community of ●​ De Facto: Practical acceptance without formal
residents. recognition.
2.​ Defined Territory: Clearly demarcated geographical
boundaries. State Immunity:
3.​ Government: An established political authority
capable of governing. Under the principle of sovereign immunity, states are generally
4.​ Capacity to Enter into Relations with Other States: protected from being sued in the courts of other states.
The ability to engage in diplomatic and foreign affairs. Exceptions exist, particularly concerning commercial activities
or violations of international norms.

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Role in International Law: ○​ Genocide: Acts intended to destroy, in whole or
in part, a national, ethnical, racial, or religious
States are the primary architects and enforcers of international group.
law, participating in the creation of treaties, customary laws, ○​ Crimes Against Humanity: Widespread or
and international organizations. systematic attacks against civilians.
○​ War Crimes: Serious violations of the laws and
Examples and Case Studies:
customs of war.
●​ South Sudan: The world's newest state, achieving ○​ Crimes of Aggression: The planning,
independence in 2011 after a prolonged struggle, preparation, initiation, or execution of acts of
exemplifies the application of the Montevideo criteria. aggression using state military force.
●​ Taiwan: Despite possessing the attributes of statehood,
Juridical Entities:
Taiwan's limited recognition highlights the complexities
of international politics and recognition. These include non-state actors such as international
organizations, non-governmental organizations (NGOs), and
multinational corporations.
2. Individuals and Juridical Entities ●​ International Organizations: Entities like the United
Nations (UN) and the World Trade Organization
Individuals:
(WTO)possess international legal personality, enabling
Historically, individuals were not considered subjects of them to enter into treaties and participate in
international law. However, the evolution of human rights and international relations.
international criminal law has transformed this perspective. ●​ Non-Governmental Organizations (NGOs): While
lacking formal international legal personality, NGOs
●​ Human Rights Law: Instruments like the Universal influence international law through advocacy,
Declaration of Human Rights (1948) and subsequent humanitarian work, and by shaping international norms.
treaties grant individuals rights and avenues for redress ●​ Multinational Corporations: These entities operate
at the international level. across borders and can impact international relations
●​ International Criminal Law: Individuals can be held and economies. They may be subject to international
accountable for serious crimes, including:

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 regulations, especially concerning human rights and interests, addressing issues that transcend national
environmental standards. boundaries, such as environmental protection, health
crises, and economic development.
Legal Personality and Accountability: ●​ Standard-Setting: They develop and promote
international norms, standards, and regulations to
The recognition of individuals and juridical entities as subjects
harmonize state practices in various domains, including
of international law means they can bear rights and obligations.
trade, human rights, and environmental conservation.
For instance, individuals can be prosecuted by international
●​ Dispute Resolution: Many international organizations
tribunals, and corporations can be held liable for complicity in
provide mechanisms for resolving disputes between
human rights abuses.
states or other international actors, thereby contributing
Examples and Case Studies: to global peace and stability.

●​ Nuremberg Trials: Post-World War II military Examples of International Organizations:

tribunals where individuals were held accountable for
●​ United Nations (UN): Established in 1945, the UN
war crimes and crimes against humanity, setting
addresses a broad spectrum of issues, including peace
precedents for individual responsibility under
and security, human rights, and sustainable
international law.
development.
●​ International Criminal Court (ICC): Established by
●​ World Health Organization (WHO): A specialized
the Rome Statute in 2002, the ICC prosecutes
agency of the UN, the WHO is responsible for
individuals for the most serious offenses of
international public health, coordinating responses to
international concern.
health emergencies, and setting medical standards.
●​ World Trade Organization (WTO): The WTO deals
with the global rules of trade between nations, aiming
3. International Organizations (Continued) to ensure that trade flows as smoothly, predictably, and
freely as possible.
Roles and Functions:

●​ Facilitating Cooperation: International organizations

serve as platforms for states to collaborate on common

24
Legal Personality and Authority: ●​ Authorize Military Action: Sanction the use of force
to maintain or restore international peace.
International organizations possess international legal ●​ Impose Sanctions: Enforce economic and diplomatic
personality, which enables them to: measures against states or entities violating
international norms.
●​ Enter into Agreements: Conclude treaties and
●​ Establish Peacekeeping Missions: Deploy forces to
agreements with states and other international entities.
conflict zones to monitor ceasefires and support the
●​ Own Property: Hold assets and manage resources
implementation of peace agreements.
independently of member states.
●​ Litigate: Initiate legal proceedings and be subject to However, the UNSC's effectiveness can be hindered by the
litigation in international courts. veto power of its five permanent members (China, France,
Russia, the United Kingdom, and the United States), which can
Challenges and Limitations:
lead to paralysis in decision-making during critical situations.
●​ Sovereignty Concerns: Member states may be
reluctant to cede authority to international
organizations, leading to tensions between national 4. Non-State Actors
sovereignty and international governance.
●​ Enforcement Issues: While international organizations Beyond states and international organizations, various
can set standards and mediate disputes, enforcing non-state actors have emerged as influential participants in
compliance often depends on the willingness of international law. These include non-governmental
sovereign states. organizations (NGOs), multinational corporations (MNCs), and
●​ Resource Constraints: Dependence on member armed groups.
contributions can limit the effectiveness of international
organizations, especially when funding is inconsistent Non-Governmental Organizations (NGOs):
or politicized.
●​ Advocacy and Influence: NGOs play a crucial role in
Case Study: The United Nations Security Council (UNSC): advocating for human rights, environmental protection,
and social justice. They often influence international
The UNSC is tasked with maintaining international peace and
security. It has the authority to:

25
 policy and contribute to the development of ●​ Derived Personality: Unlike states, which have
international norms. inherent legal personality, non-state actors may acquire
●​ Participation in International Forums: While lacking a form of legal personality through recognition by states
formal legal personality, NGOs can attain consultative or international organizations.
status with international organizations, allowing them ●​ Functional Recognition: Some entities, like the
to participate in discussions and provide expertise. International Committee of the Red Cross (ICRC), are
granted specific functions and privileges under
Multinational Corporations (MNCs): international law due to their humanitarian roles.
●​ Economic Impact: MNCs operate across multiple Challenges in International Law:
countries, significantly impacting global trade,
investment, and economic development. ●​ Accountability: Holding non-state actors accountable
●​ Regulatory Challenges: Their transnational nature for violations of international law, such as human rights
poses challenges for regulation, as they must navigate abuses or environmental damage, remains complex and
varying legal systems and may influence domestic and often depends on domestic legal systems.
international economic policies. ●​ Participation in Treaty-Making: Non-state actors
typically do not have the capacity to enter into treaties,
Armed Non-State Actors: limiting their direct influence on the formation of
international legal norms.
●​ Conflict Dynamics: Groups such as insurgents, rebels,
and militias can influence international peace and Case Study: The International Committee of the Red Cross
security. (ICRC):
●​ International Humanitarian Law (IHL): Even
though they are not states, these actors are bound by The ICRC is a unique non-state actor with a specific mandate
IHL, which seeks to limit the effects of armed conflict under international humanitarian law to protect and assist
for humanitarian reasons. victims of armed conflict. It has been granted certain privileges
and immunities to perform its functions effectively, illustrating
Legal Personality and Recognition: how non-state actors can attain a form of international legal
personality based on their roles and recognition by states.
The extent to which non-state actors possess international legal
personality varies:

26
Conclusion

The landscape of international law has evolved significantly,

expanding beyond the traditional state-centric model to include
a diverse array of actors, each contributing to the development
and enforcement of international norms. Understanding the
roles, capacities, and limitations of these subjects is essential
for comprehending the complexities of international relations
and the legal frameworks that govern them.

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