The Nature and Sources of International Law

1.1 What is international law?

Bernas opens where every examiner opens, with the definition that has since broken:

"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."

— Bernas, p. 1 verified

Read the sentence slowly and you will find three restrictions hidden inside it. It binds states, and only states. It governs their relations with one another, so nothing internal. And it binds civilized states — a nineteenth-century artefact, when membership of the international community was a club with a doorman.

Bernas himself dismantles the first restriction in the next breath: "Today, sovereign states remain as the principal subjects of international law; but they are now joined by international organizations and even by individuals" (Bernas, p. 1). So the modern definition, and the one you give second, is the Restatement (Third)'s, which Bernas adopts because United States courts treat it as the most authoritative statement on the subject:

International law is 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."

— Restatement (Third) of Foreign Relations Law of the United States, § 101, quoted in Bernas, p. 1 verified

Practice pointer. The name "international law" is itself a misnomer and Cruz says so. It "suggests that it relates to the intercourse of nations rather than of states", and its "restrictive import would exclude from its operation those other international persons which, although non-states, are directly assigned certain rights and responsibilities" (Cruz, p. 2). The term was coined by Jeremy Bentham in his Introduction to the Principles of Morals and Legislation, and is used interchangeably with "the law of nations" (jus gentium). Bernas confirms the attribution: what Grotius called the "law of nations" "was later given the name of 'international law' by the British philosopher Jeremy Bentham" (Bernas, p. 4).

Origins, in one paragraph you can recite. Hugo Grotius, the Dutch jurist, is the father of modern international law; his book is De Jure Belli ac Pacis. Before him came Alberico Gentili (Oxford, De Jure Belli), Francisco de Vitoria and Francisco Suarez, the Spanish theologians. After him came Samuel Pufendorf (De Jure Naturae et Gentium) and Emmerich de Vattel (The Law of Nations). Bernas notes that "These were generally natural law people" (Bernas, p. 4) — which is the connection to §1.4 below. Nachura adds that Grotius and Gentili, "both of competent theological training, characterized international law as municipal law writ large" (Nachura, p. 1).

1.2 Scope of international law

Bernas describes the expansion in one word — "revolutionary":

"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."

— Bernas, p. 1 verified

He attributes this to four drivers: "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" (Bernas, p. 1). And he lists what the subject now covers: "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" (Bernas, p. 2).

The analogy that makes this stick. Think of international law's original scope as a treaty between two households about the fence line: it governed only what happened at the boundary — war, diplomacy, territory. Today it has become closer to a building code for a shared block of flats: it reaches into how each household wires its electricity, disposes of its rubbish and treats the people inside it. The fence still matters, but it is no longer the whole subject.

Cruz supplies the older architectural frame, and professors still ask for it:

"The grand divisions of international law are the laws of peace, the laws of war, and the laws of neutrality."

— Cruz, p. 2 verified

The architecture works as a switch. States live under the laws of peace by default. When war breaks out, the belligerents drop out of the laws of peace and into the laws of war for the duration. States not involved stay under the laws of peace inter se — among themselves — but their relations with the belligerents are governed by the laws of neutrality. When peace returns, everyone reverts (Cruz, p. 2).

Road-traffic analogy: the laws of peace are the ordinary rules of the road, binding on everyone. War is an ambulance switching on its siren — for that vehicle and the vehicles contending with it, a different set of rules now applies. Neutrality is the rule for everyone else on the road: how you must behave towards the ambulance without becoming part of the emergency.

Mnemonic: P-W-N — Peace, War, Neutrality.

1.3 Is international law a law?

This is the classic first-week question and it has a structure. Bernas states the challenge in full, and it is worth having the whole indictment before you answer it, because a professor will press each limb:

"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."

— Bernas, p. 2 verified

Break the indictment into its four counts and you can answer it limb by limb:

1. No legislature. The General Assembly's resolutions are recommendatory.
2. No executive. The Security Council is hamstrung by the veto.
3. No compulsory court. The ICJ binds only consenting states.
4. No effective enforcement. Bernas: "Frequently, there is no assured procedure of identifying violation ... Most of the time, all the UN can do is censure" (Bernas, p. 2).

Nachura labels count one and its philosophical parent. The Austinian Dilemma: John Austin, the nineteenth-century positivist, "States that laws are commands of a sovereign which receive the habitual obedience of the members of an independent political society. International law, according to Austin, does not follow this precept. International law, furthermore, lacks an effective enforcement mechanism" (Nachura, p. 5). The command theory is the same idea generalised: those who hold it see international law as "merely a 'code of rules of conduct of moral force'" and as "positive international morality" (Nachura, p. 5).

The answer. Bernas gives it in two moves.

Move one — the objection rests on a fiction. "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" (Bernas, pp. 2–3).

Move two — the empirical answer, and the line to memorise. Bernas quotes Henkin:

"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."

— Henkin, quoted in Bernas, p. 3 verified

Brierly supplies the philosophical answer: "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" (Brierly, quoted in Bernas, p. 3).

And Bernas's own conclusion, which is the sentence to close on: "International law is law because it is seen as such by states and other subjects of international law" (Bernas, p. 4).

1.4 Theories of international law

The sheet lists this as a distinct heading, which means it will be asked as a distinct question. There are two sets of theories and it is easy to blur them. Bernas answers "what makes international law law?" — theories of the nature of international law. Nachura answers "where does its binding force come from?" — theories of the basis of international law. They overlap but they are not the same question. Know both lists and know which one you are being asked for.

Bernas — theories about international law (Bernas, pp. 3–4)

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." Bernas's verdict: "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." Bernas's objection: "In reality, however, there are many binding rules which do not derive from consent."

That objection is the whole of jus cogens in embryo. A peremptory norm binds a state that never consented and cannot be escaped by withholding consent. If the consensual theory were complete, jus cogens could not exist.

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."

The dissenters. "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" (Bernas, p. 3).

Nachura — the basis of international law (Nachura, pp. 3–4)

The Natural Law School. "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 of his reason and conscience. Since individuals compose the State whose will is but the collective will of the inhabitants, the State also becomes bound by the natural law."

The Positivist School. "The binding force of international law is derived from the agreement of the States to be bound by it. In this context, international law is not a law of subordination but of coordination." Nachura flags the weakness: "Positivism opens the possibility of international law having no moral basis or purpose, it being whatever States want international law to be" — and points to the UDHR, jus cogens and erga omnes as evidence against it (Nachura, p. 3).

The Eclectic or Grotian School. "In so far as it conforms to the dictates of right reason, the voluntary law may be said to blend with the natural law and be, indeed, an expression of it. In case of conflict, the natural law prevails, being the more fundamental law." This is the prevailing view and the safe answer if asked which school to prefer.

Two further bases Nachura offers. Ubi societas ibi jus — "law is considered as the hallmark of any political community which intends to act together for the common good. Law is therefore considered necessary for the society to function and, because it is necessary, it is ex hypothesi binding" (Nachura, p. 3). And the belief of states — international law "exists because States believe it exists", a belief visible in "the communications the States make to each other, communications which notably contain substantial references to law and other legal references" (Nachura, pp. 3–4).

A third list you should not confuse with either — theories of international relations

Nachura sets these out at p. 4 and they are political science, not law. They appear on the sheet's parent outline in some years, so know that they exist and that they are a different animal: Realist (states in constant struggle for power, each acting only in self-interest); Institutionalist (relations are a product of interaction with institutions and hierarchical structures); Neoliberalist (states are geared towards gains and profit); Democratic Peace (democracies are hesitant to go to war with other democracies); Hegemonic Stability (the global system is stable when controlled by a single hegemon).

1.5 Public international law distinguished from private international law

This is the single most reliably asked distinction in the first week. Bernas puts it compactly:

"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."

— Bernas, p. 4 verified

Nachura gives you the four-axis answer, which is what you actually recite: "As to nature, international not municipal; as to remedies, international modes vs. local tribunals; as to parties, international entities not private persons; as to enforcement, international sanctions not local sheriff/police." He then adds the sentence that carries the point: private international law "is not really a branch of international law but is rather a part of domestic law dealing with disputes that arise from private transactions between individuals or companies and corporations from one country vis-à-vis their counterparts in another country" (Nachura, p. 5).

Distinguished from four neighbours

Cruz and Nachura both separate international law from four adjacent concepts. In each case the difference is the same: whether breach gives rise to a legal claim.

• International morality or ethics — principles governing state relations "from the standpoint of conscience, morality, justice, and humanity" (Nachura, p. 5). Akin to natural law. Breach gives no legal claim.
• International comity — "Rules of politeness/courtesy observed by States in their relations with other States" (Nachura, p. 5). Flying a visiting head of state's flag; the twenty-one-gun salute. Breach is rude, not unlawful.
• International diplomacy — "Objects of international policy and the conduct of foreign affairs" (Nachura, p. 5). The machinery through which states pursue their aims, not the rules constraining them.
• International administrative law — "Body of laws which regulate the relations and activities of national and international agencies with respect to their material and intellectual interests which have received international recognition" (Nachura, p. 5). The Universal Postal Union, the ITU, the ICAO.

2.1 The problem, and what "sources" means

Bernas begins by naming the difficulty, and the contrast with domestic law is the thing to hold on to:

"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."

— Bernas, p. 8 verified

Nachura makes the same point in one line: "On the international plane, it is a bit complicated because there is no body likened to a national legislature, no fundamental law, and the doctrine of precedents is not applicable" (Nachura, p. 13).

The analogy. In Philippine law, if you want to know whether a rule exists you open the statute books. There is an address. In international law there is no address — only evidence. Asking "what is the source of this rule?" is less like looking up a citation and more like an archaeologist asking what a potsherd proves. You are reasoning from traces of behaviour back to the existence of an obligation. The doctrine of sources is the method for doing that reasoning without fooling yourself.

2.2 Classification of sources

The sheet lists this before Art. 38, so treat it as a discrete question with a discrete answer. There are two classifications and they cut across each other.

(a) Formal and material sources

Bernas. "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" (Bernas, p. 8).

Nachura sharpens it: "Material sources are distinguished from formal sources insofar as it is the material sources from which the substance of the law is derived, while it is the formal sources that become the 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 source of law, the State practice that was taking place even before such practice crystallized into custom can be considered as the material source" (Nachura, p. 13).

The distinction, in one sentence: a formal source tells you why a rule is binding; a material source tells you what the rule says. In Philippine terms, the formal source of a statute is the constitutional lawmaking power of Congress; the material source is the committee report, the sponsorship speech, the model law it was copied from.

(b) Primary and secondary sources

Cruz gives the classification the bar expects:

"Conformably to Article 38 of the Statute of the International Court of Justice, the sources of international law may be generally classified as primary or secondary. The primary or direct sources are treaties or conventions, customs, and the general principles of law. The secondary or indirect sources are the decisions of courts and the writings of publicists."

— Cruz, p. 21 verified

Is there a hierarchy?

Nachura's answer is the careful one: "Although the provision is silent on the question of whether the three primary sources have the same hierarchic value, by practice, treaties take precedence over customs, and customs over general principles of law", subject to the exception of jus cogens (Nachura, p. 14).

So the honest statement is layered, and saying it in this order will read as precision rather than hedging:

1. On the face of Art. 38 there is no hierarchy between (a), (b) and (c). The article does not rank them.
2. In practice treaty prevails over custom inter partes, because a treaty is the parties' deliberate and specific choice — this is lex specialis and lex posterior reasoning, not a hierarchy of sources.
3. Except where the custom is jus cogens, in which case the treaty is void under VCLT Art. 53. That is a true hierarchy, and it is the only one.
4. Sub-paragraph (d) is genuinely subordinate, by the express words of the article.

2.3 Article 38(1) of the ICJ Statute — the text

This is the provision to know by heart. Reproduced in full, from the Court's own text:

Article 38

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 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. 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 a case ex aequo et bono, if the parties agree thereto.

— Statute of the International Court of Justice, Art. 38 verified

And the provision that (d) is subject to:

Article 59

The decision of the Court has no binding force except between the parties and in respect of that particular case.

— Statute of the International Court of Justice, Art. 59 verified

Six things examiners test on Art. 38

One — it does not say "sources". Bernas makes the point sharply: "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" (Bernas, p. 9).

Two — the phrase in (b) is back to front, and that is the trap. The text reads "international custom, as evidence of a general practice accepted as law." Read literally that makes custom the evidence and practice the thing proved. It should be the other way round: the general practice accepted as law is the evidence, and the custom is what it proves. The drafting is a known infelicity. Do not "correct" it when reciting — quote it exactly and, if you have the opening, note that it is criticised as inverted. That is a mark, cheaply won.

Three — "civilized nations" in (c) is an anachronism. Bernas: "It is worth noting that the Restatement avoids the language 'civilized nations.' Its colonial connotation is now unacceptable in the international community" (Bernas, p. 18). The ILC has since replaced it with "the community of nations". You still recite the original words, because that is what the Statute says.

Four — (d) is doubly subordinated, by "subject to the provisions of Article 59" and by "as subsidiary means".

Five — paragraph 2 is not a source. Ex aequo et bono is a power the Court may exercise only if the parties agree. To date no party has ever asked, and the Court has never decided a case ex aequo et bono.

Six — the Restatement is the modern restatement of the same list.

2.4 Custom

The definition and the two elements

Bernas: "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" (Bernas, p. 10).

And the ICJ's own definition, from the case you have been assigned:

Custom is "constant and uniform usage, accepted as law."

— Asylum Case (1950), ICJ Rep 266 verified

The analogy that fixes this. Two neighbours: for twenty years, one always lets the other cut across his lot. Nothing observable distinguishes an easement from a tolerance — the walking looks identical. What distinguishes them is whether the owner permitted it because he thought he had to, or merely because he did not mind. In Philippine property terms, that is precisely the difference between possession en concepto de dueño and possession by mere tolerance, and it is why tolerance never ripens into acquisitive prescription. Opinio juris is international law's version of that same question: is the conduct owed, or merely offered?

Element 1 — state practice (usus, the material factor)

Bernas: "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" (Bernas, p. 10).

Duration (diuturnitas). "The required duration (diuturnitas) can be either short or long" (Bernas, p. 10). The short example is North Sea itself:

"... 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."

— North Sea Continental Shelf, para. 74 verified

Bernas draws the right conclusion: "Duration therefore is not the most important element. More important is the consistency and the generality of the practice" (Bernas, p. 11).

Note the phrase "States whose interests are specially affected". It is doing real work. A rule about continental-shelf delimitation is made by coastal states, not by Laos and Bolivia. A rule about outer space in 1967 was made by two states. The Court is not counting heads; it is weighting them by stake.

Consistency. The governing authority is Asylum:

"The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and uniform usage, accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offence."

— Asylum (Colombia/Peru), Judgment of 20 November 1950, ICJ Reports 1950, p. 277 verified

Generality — and how much uniformity is enough. Not complete uniformity. Bernas: "Uniformity and generality of practice need not be complete, but it must be substantial." He cites Nicaragua v. United States (1986):

"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."

— Nicaragua v. United States (1986), quoted in Bernas, p. 12 verified

Element 2 — opinio juris sive necessitatis (the psychological factor)

Bernas frames the question exactly as a professor will: "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 practice an international rule. Without it, practice is not law" (Bernas, pp. 12–13).

The canonical statement is North Sea paragraph 77:

"The essential point in this connection — and it seems necessary to stress it — is that even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris; — for, in order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be 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. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty."

— North Sea Continental Shelf Cases, Judgment of 20 February 1969, ICJ Reports 1969, para. 77 verified

Who bears the burden? "The existence of opinio juris is a matter of proof. The burden of proving its existence falls on the state claiming it" (Bernas, p. 14). Asylum is the case where the claimant failed to discharge it.

The persistent objector

Bernas: "Would dissenting states be bound by custom? Yes, unless they have consistently objected to it while the custom was merely in the process of formation." The authority is Anglo-Norwegian Fisheries. Three limits, and each is examinable:

1. The objection must begin early and be maintained. Nachura: "a persistent objector is one who objects to the practice from the early stages of the practice and maintains the said objection consistently" (Nachura, p. 19). Objection after crystallisation is simply a breach.
2. The protection is personal. "Dissent, however, protects only the dissenter and does not apply to other states" (Bernas, p. 13).
3. New states are bound. "A state joining the international law system for the first time after a practice has become law is bound by such practice" (Bernas, p. 13).

The exception that swallows the objection: jus cogens. Nachura: "a State cannot claim to be a persistent objector when the practice being objected to has already attained the status of jus cogens" (Nachura, p. 20). There is no persistent objector to the prohibition of genocide.

Regional and bilateral custom

Custom need not be universal. Bernas: "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" (Bernas, p. 13).

2.5 Treaties

As a source

Bernas: "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" (Bernas, p. 15).

The definition, from the codifying instrument itself:

"'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."

— Vienna Convention on the Law of Treaties (1969), Art. 2(1)(a) verified

And the principle that makes them binding:

Article 26 — "Pacta sunt servanda"

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

— VCLT, Art. 26 verified

The three functions of a treaty — codify, crystallise, create

Nachura's tripartite scheme is the most useful analytical tool in this section, and it maps directly onto North Sea:

"Treaties may codify, crystallize, or create obligations. Codification is done where the treaty merely compiles existing obligations to facilitate simplicity, as in the case of the 1982 UNCLOS. Crystallization is done to formalize as an obligation existing State practice, as in the case of the 1958 Geneva Continental Shelf Convention. Creation is done where the treaty itself is the first time wherein such obligation was created between the parties, as is usually the case in bilateral trade agreements."

— Nachura, p. 15 verified

This is exactly the taxonomy the Court worked through in North Sea. Denmark and the Netherlands argued that Art. 6 of the 1958 Convention either codified existing custom, or crystallised emerging custom, or generated custom afterwards. The Court rejected all three routes in turn — see Digest 4. Learning the taxonomy makes that judgment legible instead of forbidding.

Treaties bind only parties. Nachura is emphatic: "It is a mistake to think that treaties create general international law. Treaties are only legally binding upon those States that are parties to them." He adds the two exceptions: a state not party may still be bound where "that treaty embodied a jus cogens or the provisions thereof achieved the status of customary international law" (Nachura, pp. 15–16).

Treaties and custom in collision

Bernas sets out four situations and this is the framework to reproduce:

Situation 1 — the treaty is declaratory of 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" (Bernas, p. 16). No conflict; the treaty is proof of the custom.

Situation 2 — the treaty is later than the custom. The treaty prevails between the parties. "A treaty manifests a deliberate choice of the parties and the principle of pacta sunt servanda should be followed."

Situation 3 — the later treaty conflicts with a jus cogens custom. Custom prevails and the treaty is void. Bernas gives the reason and the text:

"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."

— VCLT, Art. 53 verified

Situation 4 — custom develops after the treaty. Bernas is candid: "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" (Bernas, p. 17).

2.6 General principles of law recognised by civilized nations

What they are — and what they are not

Bernas is precise on the one point students always get wrong:

"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."

— Bernas, pp. 17–18 verified

Nachura: "General principles of law are propositions of law that are so fundamental that they are found in almost all legal systems. Notably, general principles of law are a separate source of law from both treaty and custom" (Nachura, p. 21).

Why they are there — the problem of non liquet

Nachura gives the functional answer, and it is the best single reason to remember:

"General principles of law were introduced as a source of law in order to combat the problem of non liquet (or the absence of any source of law or obligation to point to in order to resolve the conflict). As such, even absent a particular treaty or custom, the Court may not renege on its duty to decide a case since it is allowed to rule on the matter on the basis of general principles of law."

— Nachura, p. 21 verified

The examples — learn five

Nachura supplies the case-by-case map, which is the most useful version for recitation (Nachura, pp. 21–22):

2.7 Judicial decisions

Subsidiary, and why

The text of Art. 38(1)(d) subordinates judicial decisions twice over, and the second subordination — "subject to the provisions of Article 59" — is the operative one. Bernas: "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" (Bernas, p. 19).

But their influence is enormous

Bernas immediately qualifies, and this is the balance to strike:

"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."

— Bernas, p. 19 verified

2.8 The teachings of highly qualified writers and "publicists"

Bernas's treatment is short and every sentence is examinable:

"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."

— Bernas, p. 19 verified

"Publicists" in the institutional sense. Bernas uses the word in a way that catches students out: "'Publicists' are institutions which write on international law." His list: "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" (Bernas, p. 19).

Nachura uses "publicists" in the individual sense — "a particular class of learned scholars whose writings are regarded as being persuasive sources of international law" — and names "Grotius, Vattel, Oppenheim, Rousseau, and Lauterpacht" (Nachura, p. 25).

2.9 Beyond Article 38 — what the sheet does not list but the cases require

The sheet's list of sources ends at publicists. Three further topics are not listed, and all three are needed to digest the assigned cases: jus cogens and erga omnes (for Vinuya), equity (for North Sea's equitable-principles holding), and soft law and UN resolutions.

Jus cogens — peremptory norms

Nachura: "Jus cogens is defined as that part of customary international law which has the status of a peremptory (absolute, uncompromising, certain) norm of international law. A peremptory norm is a norm accepted and recognized by the international community of States as a rule, from which no derogation is permitted and which can be modified only by a subsequent norm having the same character" (Nachura, p. 14).

Vinuya supplies the Philippine Supreme Court's own account:

"In international law, the term 'jus cogens' (literally, 'compelling law') refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority."

— Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010 verified

Obligations erga omnes

Vinuya quotes Barcelona Traction and this is the definitive statement:

"... an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination."

— Barcelona Traction, quoted in Vinuya v. Executive Secretary (2010) verified

Equity, and ex aequo et bono

Soft law and UN resolutions

UN resolutions. Bernas: "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. ... Resolutions can also be a reflection of what has become customary law" (Bernas, p. 21).

The Philippine position is settled. Nachura: "Soft laws are mere guidelines for conduct. With regard to the Philippines, these are not considered as binding", citing Pharmaceutical and Health Care Association of the Philippines v. Duque III, G.R. No. 173034, "where the Supreme Court ruled that although soft laws can influence the behavior of States, they are still considered as non-binding norms, principles, and practices" (Nachura, p. 25).

3.1 Monism and dualism, in one paragraph each

Dualism holds that international law and municipal law are two separate legal systems, with different sources, different subjects and different subject matter. International law binds states on the international plane; it has no effect inside a state until that state transforms it into domestic law. On this view a treaty is like a contract that Congress must enact into a statute before a judge can apply it.

Monism holds that the two are one system with international law at the apex. A rule of international law is automatically part of domestic law, without any act of transformation, because both derive their validity from the same ultimate source.

Neither is adopted wholesale anywhere. The Philippines, like most states, runs a hybrid: monist for custom, dualist for treaties.

3.2 The two clauses

The incorporation clause — Art. II, Sec. 2, 1987 Constitution

SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

— 1987 Constitution, Art. II, Sec. 2 verified

This is monism for custom. "Generally accepted principles of international law" — customary international law and general principles under Art. 38(1)(b) and (c) — become part of Philippine law automatically, by force of the Constitution itself. No statute, no Senate concurrence, no act of transformation. The Constitution does the adopting.

The transformation clause — Art. VII, Sec. 21

SECTION 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

— 1987 Constitution, Art. VII, Sec. 21 verified

This is dualism for treaties. A treaty does not enter Philippine law by ratification alone; it requires the concurrence of two-thirds of all the Members of the Senate — not two-thirds of a quorum, and not two-thirds of those present.

3.3 What counts as a "generally accepted principle"?

Kuroda gives the widest reading, and it is the one to have ready: the Hague and Geneva Convention rules "form part of and are wholly based on the generally accepted principles of international law", and so bind the Philippines "even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory."

Read the logic carefully, because students consistently get it inverted. The Court did not say the Philippines was bound by the Hague Convention. It said the Philippines was bound by the customary rules that the Hague Convention wrote down. The Convention is evidence of the custom; the custom is the source; Art. II, Sec. 2 is the doorway. This is VCLT Art. 38 reasoning arrived at nineteen years before the VCLT existed.

3.4 Conflict between a treaty and a statute

Two different answers, depending on who is asking.

On the international plane, international law prevails, always. VCLT Art. 27: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." Nachura puts it plainly: "municipal law (or a gap within it) cannot be used by a State as an excuse for non-compliance with an obligation" (Nachura, p. 12). LaGrand is this rule in action — the United States could not shelter behind its procedural default rule.

On the domestic plane, the Philippine rule is that a treaty and a statute are of equal rank, and the later prevails. This is Ichong's holding, and here is the sentence:

"But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law, and the same may never curtail or restrict the scope of the police power of the State."

— Ichong v. Hernandez, G.R. No. L-7995, 31 May 1957 verified

Digest 1

Shigenori Kuroda v. Shigeru Jalandoni

G.R. No. L-2662, 26 March 1949 | Moran, C.J.

The proposition: Customary international law binds the Philippines without any act of adoption, by force of the incorporation clause — and it binds even where the treaty that records the custom is one the Philippines never signed.

Where it sits: Art. 38(1)(b) (custom) and Art. 38(1)(c) (general principles), entering domestic law through Art. II, Sec. 2. Also the Kuroda route from §2.5 — treaty rules binding a non-party as custom.

Facts

Shigenori Kuroda was "formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the Japanese Imperial Forces in the Philippines during a period covering 1943 and 1944". He was charged before a Military Commission convened by the Chief of Staff of the AFP with "having unlawfully disregarded and failed 'to discharge his duties as such commander to control the operations of members of his command, permitting them to commit brutal atrocities and other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces, in violation of the laws and customs of war'".

Kuroda petitioned to have EO 68 declared illegal, on three grounds:

1. EO 68 was unconstitutional, because the Philippines "is not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and, therefore, petitioner is charged of 'crimes' not based on law, national and international."
2. The participation of American attorneys Melville Hussey and Robert Port, not admitted to the Philippine Bar, was "a diminution of our personality as an independent state".
3. Hussey and Port had no personality as prosecutors, the United States not being a party in interest.

Issue

Whether the Philippines, not being a signatory to the Hague Convention, may nonetheless try an enemy commander for violations of the laws and customs of war.

Ruling — Yes. Petition denied.

The Court anchored EO 68 on the incorporation clause of the 1935 Constitution, Art. II, Sec. 3, and then made the move that matters:

"It cannot be denied that the rules and regulations of the Hague and Geneva conventions form part of and are wholly based on the generally accepted principles of international law. In fact, these rules and principles were accepted by the two belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treaties to which our government may have been or shall be a signatory."

verified

Why it matters for Module 1

Three separate points, and they are worth separating:

One — the incorporation clause is self-executing. No implementing legislation was needed to make the laws of war part of Philippine law. EO 68 supplied the forum and the procedure; the Constitution supplied the substantive law.

Two — a treaty is evidence of custom, not the only channel for it. This is the Philippine expression of what the VCLT would later codify at Art. 38: a rule in a treaty may bind a non-party as custom. Do not say "the Philippines was bound by the Hague Convention." Say "the Philippines was bound by the customary rules which the Hague Convention codified."

Three — the nullum crimen objection fails on the source, not on the timing. Kuroda's real complaint was retroactive criminalisation. The answer is that the prohibition already existed as custom when he acted; the Convention merely wrote it down and EO 68 merely provided the tribunal.

Digest 2

Lao H. Ichong v. Juan Hernandez

G.R. No. L-7995, 31 May 1957 | Labrador, J.

The proposition: Inside a Philippine courtroom a treaty has the rank of a statute — so a later statute prevails over an earlier treaty, and no treaty can curtail the police power. And a UN Charter obligation or a General Assembly declaration is not, without more, a binding legal obligation at all.

Where it sits: the rank of treaties as a source once incorporated; and the status of UN resolutions and declarations, from §2.9.

Facts

Republic Act No. 1180, "An Act to Regulate the Retail Business", approved 19 June 1954, provided:

"SECTION 1. No person who is not a citizen of the Philippines, and no association, partnership, or corporation the capital of which is not wholly owned by citizens of the Philippines, shall engage directly or indirectly in the retail business..."

verified

Lao H. Ichong, suing in his own behalf and for other alien residents and firms affected, attacked the statute on several grounds. Only one concerns Module 1: that RA 1180 violated (i) the Charter of the United Nations, (ii) the Universal Declaration of Human Rights, and (iii) the Treaty of Amity between the Republic of the Philippines and the Republic of China of 18 April 1947.

Issue

Whether RA 1180 is void for conflict with the UN Charter, the UDHR and the Treaty of Amity.

Ruling — No. Petition dismissed; RA 1180 upheld.

The Court disposed of each instrument in turn:

"The United Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere recommendation, or a common standard of achievement for all peoples and all nations."

verified

On the Treaty of Amity:

"But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law, and the same may never curtail or restrict the scope of the police power of the State."

verified

Why it matters for Module 1

One — three holdings, not one. Students collapse this case into "later law repeals treaty". There are three distinct rulings and each is separately examinable:

Two — the UDHR holding is soft law before the term existed. The Court's reasoning is exactly Bernas's: a General Assembly declaration is recommendatory unless it has hardened into custom. The proof the Court used was state practice — Norway and Denmark, both UN members, prohibited alien retail trade. That is a custom argument run in reverse: if the leading members of the Organisation behave inconsistently with the alleged obligation, there is no general practice accepted as law.

The tension with Kuroda, and how to resolve it

A professor may put the two cases side by side and ask whether they conflict. They do not, and saying why is the answer.

• Kuroda concerns custom, which enters by Art. II, Sec. 2 with constitutional status as adopted law.
• Ichong concerns a treaty, which enters by Art. VII, Sec. 21 with statutory rank.
• Different source, different door, different rank. Custom comes in through the Constitution; a treaty comes in through an act that Congress's later act can undo.
• The reconciliation in one line: a treaty is domestically no stronger than the statute that could replace it; a generally accepted principle is as strong as the Constitution that adopts it.

Digest 3

Vinuya et al. v. Executive Secretary

G.R. No. 162230, 28 April 2010 | Del Castillo, J.

The proposition: Jus cogens and erga omnes describe the rank of a norm and the breadth of legal interest in it. Neither creates a duty on a state to espouse its nationals' claims, and neither supplies a private remedy. The alleged duty to prosecute international crimes fails the two-element test for custom — neither state practice nor opinio juris has evolved in that direction.

Where it sits: custom and its two elements (§2.4); jus cogens and erga omnes (§2.9); and, in the background, the political question doctrine.

Facts

Petitioners were about seventy members of the Malaya Lolas, an organisation registered with the SEC "established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World War". They were the surviving Filipina "comfort women".

Since 1998 petitioners had approached the DOJ, DFA and OSG for assistance in filing claims against Japanese officials. The Executive declined, "took the position that the individual claims of the comfort women for compensation had already been fully satisfied by Japan's compliance with the Peace Treaty between the Philippines and Japan" — the 1951 Treaty of Peace, whose Art. 14(b) waived Allied claims.

Petitioners asked the Court to (a) declare that respondents committed grave abuse of discretion in refusing to espouse their claims, and (b) compel respondents to espouse those claims before the ICJ and other international tribunals.

Issue

Whether the Executive may be compelled to espouse petitioners' claims against Japan, and whether jus cogens and erga omnes supply the compulsion.

Ruling — No. Petition dismissed.

On the discretionary nature of diplomatic protection, the Court adopted the ILC's position: the right of diplomatic protection "belongs to or vests in the State"; it is a "sovereign prerogative"; and the state "has the right to exercise diplomatic protection on behalf of a national. It is under no duty or obligation to do so."

On whether custom has created such a duty — this is the passage that makes the case a sources case:

"It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act on his/her behalf when rights are injured. However, at present, there is no sufficient evidence to establish a general international obligation for States to exercise diplomatic protection of their own nationals abroad. Though, perhaps desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it is only a moral and not a legal duty, and there is no means of enforcing its fulfillment."

verified

On the alleged duty to prosecute:

"Nonetheless, notwithstanding an array of General Assembly resolutions calling for the prosecution of crimes against humanity and the strong policy arguments warranting such a rule, the practice of states does not yet support the present existence of an obligation to prosecute international crimes. ... 'To the extent that any state practice in this area is widespread, it is in the practice of granting amnesties, immunity, selective prosecution, or de facto impunity to those who commit crimes against humanity.'"

verified

On jus cogens and erga omnes as answers to this:

"Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951, petitioners have not deigned to show that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens."

verified

Why it matters for Module 1

One — it is the best Philippine application of the two-element test. Petitioners had abundant opinio juris: General Assembly resolutions, scholarly consensus, moral clarity. What they lacked was practice. The Court's finding that the actual practice of states runs the other way — amnesties, immunity, impunity — is a textbook application of North Sea paragraph 77 in reverse. In North Sea there was practice without conviction. In Vinuya there was conviction without practice. Neither is custom.

Two — it disciplines the rhetorical use of jus cogens. The Court's insistence that petitioners must prove the norm was peremptory at the relevant time (1951) is precisely the burden-of-proof point from §2.4. Jus cogens is not an incantation; it is a claim requiring evidence of acceptance by the international community of States as a whole.

Three — erga omnes gives standing to States, not to individuals. Every state may have a legal interest in the prohibition of sexual slavery. It does not follow that a Filipina survivor may compel her own government to litigate. Legal interest is not the same as a cause of action, and neither is a remedy.

Digest 4

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands)

ICJ Reports 1969, p. 3 | Judgment of 20 February 1969 | 11 votes to 6

The proposition: Custom requires two elements, and the second cannot be inferred from the first. "The frequency, or even habitual character of the acts is not in itself enough." A treaty provision becomes custom for non-parties only if it is norm-creating, widely and representatively accepted, and followed by practice that is extensive and virtually uniform and accompanied by opinio juris.

Where it sits: the single most important authority in Chapter 2. It governs §2.4 (both elements, duration, uniformity), §2.5 (treaty into custom, the Baxter Paradox in operation) and §2.9 (equity without consent).

Facts

Three states border the North Sea in sequence: the Netherlands, then the Federal Republic of Germany, then Denmark. Each had drawn a partial continental-shelf boundary with Germany close to the shore — Germany/Netherlands by agreement of 1 December 1964, Germany/Denmark by agreement of 9 June 1965. Beyond those partial lines the parties could not agree, and by special agreements of 2 February 1967 they asked the Court not to delimit the boundary itself but to state "what principles and rules of international law are applicable".

The geography is the whole case. The German coast is concave — it curves inward between its two neighbours. Under the equidistance method, every point of the boundary is equidistant from the nearest points on each state's baselines. On a straight coast that is fair. On a convex coast it projects outward generously; on a concave coast the two lateral boundaries converge as they run seaward, pinching the middle state's shelf into a narrow wedge and cutting it off well short of the median line of the sea.

Denmark and the Netherlands argued that equidistance was obligatory. Their difficulty was that Germany had signed but never ratified the 1958 Geneva Convention on the Continental Shelf, so Art. 6 could not bind it as a treaty. They therefore had to establish equidistance as customary law.

Issue

Whether the equidistance principle in Art. 6 bound Germany as a rule of customary international law, by one of three routes: codification of pre-existing custom, crystallisation of emerging custom, or generation of custom after the Convention.

Ruling — No on all three routes.

Route 1 — was Art. 6 declaratory of existing custom? No. The Court found that equidistance "was proposed by the Commission with considerable hesitation, somewhat on an experimental basis, at most de lege ferenda, and not at all de lege lata or as an emerging rule of customary international law. This is clearly not the sort of foundation on which Article 6 of the Convention could be said to have reflected or crystallized such a rule" (para. 62).

The reservations argument, which is the elegant part. Art. 12 of the Convention permitted reservations to every article "other than to Articles 1 to 3 inclusive". Art. 6 was therefore reservable, and the Court drew the inference:

"... it is a characteristic of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations may, within certain limits, be admitted; — whereas this cannot be so in the case of general or customary law rules and obligations which, by their very nature, must have equal force for all members of the international community, and cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own favour."

— para. 63 verified

In other words: the drafters told us which provisions they thought were custom, by making those the ones you cannot reserve against. Articles 1 to 3 were shielded; Art. 6 was not. A reservable rule is a contractual rule.

Route 2 — did Art. 6 generate custom afterwards? The Court conceded the possibility in principle — "There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained" (para. 71) — and then set three conditions, each of which failed.

Condition (i) — the provision must be norm-creating in character. Art. 6 was not, for three reasons: it subordinates equidistance to a "primary obligation to effect delimitation by agreement"; the "special circumstances" qualification is of uncertain scope; and the faculty of reservation "does add considerably to the difficulty" (para. 72).

Condition (ii) — widespread and representative participation. "[E]ven without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected." Here the ratifications were "though respectable, hardly sufficient" (para. 73).

Condition (iii) — practice extensive and virtually uniform, per para. 74.

Route 3 — did subsequent state practice establish the custom? No, and here the Baxter Paradox does the work:

"To begin with, over half the States concerned ... were or shortly became parties to the Geneva Convention, and were therefore presumably, so far as they were concerned, acting actually or potentially in the application of the Convention. From their action no inference could legitimately be drawn as to the existence of a rule of customary international law in favour of the equidistance principle. As regards those States, on the other hand, which were not, and have not become parties to the Convention, the basis of their action can only be problematical and must remain entirely speculative. Clearly, they were not applying the Convention. But from that no inference could justifiably be drawn that they believed themselves to be applying a mandatory rule of customary international law. There is not a shred of evidence that they did ... so that acting, or agreeing to act in a certain way, does not of itself demonstrate anything of a juridical nature."

— para. 76 verified

What the Court substituted. Not another mechanical rule, but a legal obligation to negotiate towards an equitable result:

"... the essential reason why the equidistance method is not to be regarded as a rule of law is that, if it were to be compulsorily applied in all situations, this would not be consonant with certain basic legal notions which ... have from the beginning reflected the opinio juris in the matter of delimitation; those principles being that delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles. On a foundation of very general precepts of justice and good faith, actual rules of law are here involved ... it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles."

— para. 85 verified

Why it matters for Module 1

One — it is the authority for the two-element test. Paragraph 77 is the sentence every subsequent custom case cites. Memorise the two conditions in the Court's own words: "Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it."

Two — it is the authority on duration. Para. 74: a short period is "not necessarily, or of itself, a bar", provided practice is "extensive and virtually uniform" and includes "States whose interests are specially affected".

Three — it maps Nachura's codify/crystallise/create taxonomy exactly. The three routes the Court rejected are those three functions, tested one by one. If you can name the taxonomy and then say the Court rejected all three, you have compressed a fifty-page judgment into a sentence.

Four — it is the leading illustration of equity operating without party consent (§2.9). The Court applied equitable principles as a rule of law requiring their application, not ex aequo et bono.

Digest 5

Asylum Case (Colombia v. Peru)

ICJ Reports 1950, p. 266 | Judgment of 20 November 1950

The proposition: A state alleging a regional or local custom must prove it — that the rule "is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the one and a duty incumbent on the other." Practice fluctuating with political expediency is not custom.

Where it sits: §2.4, on consistency and on regional custom; and §2.5, on treaties that have not been ratified by the state against which they are invoked.

Facts

On 3 October 1948 a military rebellion broke out in Peru and was suppressed the same day. The following day a decree charged the American People's Revolutionary Alliance (APRA) with having prepared and directed it, and denounced its head, Víctor Raúl Haya de la Torre, as responsible. He was prosecuted for military rebellion.

On 3 January 1949 — three months after the rebellion — he was granted asylum in the Colombian Embassy in Lima. On 4 January the Colombian Ambassador notified Peru and requested a safe-conduct; on 14 January he stated that the refugee had been "qualified as a political refugee". Peru disputed the qualification and refused the safe-conduct.

Colombia's claim rested on three treaties and one custom: the Bolivarian Agreement of 1911 on extradition; the Havana Convention on Asylum of 1928; the Montevideo Convention on Political Asylum of 1933; and "American international law in general", said to include a regional custom of unilateral qualification.

Issue

1. Is Colombia, as the state granting asylum, competent to qualify the nature of the offence by a unilateral and definitive decision binding on Peru?

Ruling — Issue 1 — No (14 votes to 2).

The Montevideo Convention of 1933 "has not been ratified by Peru, and cannot be invoked against that State" — and the Court made a sharp inference from its very existence:

"The fact that it was considered necessary to incorporate in that Convention an article accepting the right of unilateral qualification, seems to indicate that this solution was regarded as a new rule not recognized by the Havana Convention. Moreover, the preamble of the Montevideo Convention states in its Spanish, French and Portuguese texts that it modifies the Havana Convention. It cannot therefore be considered as representing merely an interpretation of that Convention."

verified

That is a first-class piece of treaty interpretation and it is worth having. If a later treaty had to add the rule, the earlier treaty did not contain it. Codification of an existing rule and creation of a new one are different acts, and the drafters' own choice of language — "modifies" — betrays which they were performing.

On custom — the passage that makes this a Module 1 case:

"The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other Party. The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to international custom 'as evidence of a general practice accepted as law'."

verified

Colombia cited "a large number of particular cases in which diplomatic asylum was in fact granted and respected". The Court's answer is the opinio juris point in different clothing:

"But it has not shown that the alleged rule of unilateral and definitive qualification was invoked or — if in some cases it was in fact invoked — that it was, apart from conventional stipulations, exercised by the States granting asylum as a right appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons of political expediency."

verified

Then the finding: "so much uncertainty and contradiction, so much fluctuation and discrepancy ... that it is not possible to discern in all this any constant and uniform usage, accepted as law."

Why it matters for Module 1

One — it is the source of the ICJ's definition of custom. "Constant and uniform usage, accepted as law." Nachura cites it for exactly that (Nachura, p. 16).

Two — it is the leading case on regional custom, and on the burden of proof. Pair it with Right of Passage over Indian Territory (1960), where Portugal succeeded on a bilateral custom. Same rule, opposite outcome, because in Right of Passage the practice was constant and the parties treated it as obligatory.

Three — it holds that political expediency is not opinio juris. Colombia had abundant practice. What it could not show was that any state acted from legal duty rather than convenience. In North Sea, ceremonial courtesy defeated the claim; in Asylum, political expediency did. Same principle, two labels.

Four — an unratified treaty cannot be invoked as evidence of custom against a state that refused to ratify it. Colombia argued the Montevideo Convention merely codified existing Latin-American custom. The Court: "The limited number of States which have ratified this Convention reveals the weakness of this argument" — eleven states — and the preamble said it modified rather than interpreted the Havana Convention.

Digest 6

LaGrand (Germany v. United States of America)

ICJ Reports 2001, p. 466 | Order of 3 March 1999 and Judgment of 27 June 2001

The proposition, in two parts: (i) Art. 36(1) of the Vienna Convention on Consular Relations creates rights for the individual detainee, not merely for the sending State; and (ii) orders indicating provisional measures under Art. 41 of the ICJ Statute are binding. A domestic procedural rule cannot excuse either breach.

Where it sits: treaties as a source (§2.5); the two-plane rule (§3.4); judicial decisions and the status of municipal law as "merely facts" (§2.7).

Facts

Karl and Walter LaGrand were German nationals who had lived in the United States since childhood. On 7 January 1982 they were arrested in Marana, Arizona, on suspicion of an attempted armed bank robbery in which the bank manager was murdered and another employee seriously injured. On 17 February 1984 the Superior Court of Pima County convicted them both of first-degree murder, attempted murder, attempted armed robbery and two counts of kidnapping. On 14 December 1984 each was sentenced to death.

The United States did not inform them of their right to consular notification. Germany did not learn of the detention, trial and sentencing until 1992 — and then not from the United States.

By the time the omission was raised in the American courts, the procedural default rule barred it: a claim not raised at the appropriate stage of state proceedings cannot be raised on federal habeas review.

Karl LaGrand was executed on 24 February 1999. Germany filed its Application on 2 March 1999, together with a request for provisional measures. The Court made an Order on 3 March 1999 indicating that the United States "should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings". Walter LaGrand was executed the same day.

Issues

1. Does Art. 36(1) create individual rights?
2. Did the application of the procedural default rule violate Art. 36(2)?
3. Are provisional measures under Art. 41 of the Statute binding?

Ruling

Issue 1 — Yes. The Court's conclusion is short and is the sentence to memorise:

"Based on the text of these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article 1 of the Optional Protocol, may be invoked in this Court by the national State of the detained person. These rights were violated in the present case."

— Judgment, para. 77 verified

Issue 2 — Yes, the procedural default rule as applied violated Art. 36(2). The Court was careful about the scope of this holding, and the care is examinable:

"But it has not found that a United States law, whether substantive or procedural in character, is inherently inconsistent with the obligations undertaken by the United States in the Vienna Convention. In the present case the violation of Article 36, paragraph 2, was caused by the circumstances in which the procedural default rule was applied, and not by the rule as such."

— para. 125 verified

Read that twice. The Court did not strike down American criminal procedure — it could not, and it said so. It held that a rule requiring a claim to be raised early cannot be applied so as to bar a claim the defendant did not know he had because the same State failed to tell him. The circularity is the violation: the breach of paragraph 1 produced the ignorance, and the ignorance triggered the bar.

Issue 3 — Yes. Provisional measures are binding. The decisive reasoning:

"The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows ... that the power to indicate provisional measures entails that such measures should be binding ... The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article."

— para. 102 verified

On the argument from the Court's lack of enforcement machinery:

"However, the lack of means of execution and the lack of binding force are two different matters. Hence, the fact that the Court does not itself have the means to ensure the execution of orders made pursuant to Article 41 is not an argument against the binding nature of such orders."

— para. 107 verified

Why it matters for Module 1

One — it is the modern authority that treaties may create rights for individuals directly. That collapses the traditional definition from §1.1. If a treaty between states can confer a right on a detained person, then the individual is, at least to that extent, a subject and not merely an object of international law. It is the strongest available support for the contemporary definition.

Two — it is the case on the binding force of provisional measures, and the reasoning is a masterclass in VCLT interpretation: ordinary meaning, then context, then object and purpose, then Art. 33(4) for a divergence between authentic texts.

Three — it is the sharpest illustration of the two-plane rule at §3.4. Every American court that applied the procedural default rule acted lawfully under American law. The United States nonetheless breached international law. Municipal law was, in the Court's eyes, "merely a fact" — Nachura's phrase from German Interests in Polish Upper Silesia — evidence of what the State did, never a justification for what it did.

Four — it shows the reach and the limit of an international judgment. The Court could hold the United States in breach; it could not save Walter LaGrand. Art. 59 confines the judgment to the parties, and the Court has no bailiff. Yet LaGrand changed the law on provisional measures for every state and every future case — which is §2.7's paradox exactly: no precedential force, decisive influence.