International Law

(Finals)

In case of Conflict between a treaty and a

custom, which would prevail?

In case a treaty comes after a particular custom, as between

the parties to the treaty, the treaty should Prevail
If custom develops after the treaty, the customs should prevail,
it being an expression of a later will

Distinguish a treaty from an Executive Agreement

Treaty
needs concurrence of the senate
involve basic political issues changes in national policy
Treaty are permanent international agreements
Executive agreements
Need no concurrence from the senate
Just adjustments of details in carrying out well established national policies
Merely temporary arrangements

Sample Question
An executive agreement was executed between the
Philippines and the neighboring state
The senate of the Philippines took it upon itself to procure a
certified true copy of the executive agreement and after
deliberating on it, declared by a unanimous vote , that the
agreement was both unwise and against the best interest of the
country
Is the executive agreement binding from the standpoint of:
Philippine law?
International law?

Is the VFA a treaty or a mere executive

agreement?
In the case of Bayan vs. Zamora (G.R. no. 138570, Oct
10, 2000), VFA was considered a treaty because the
senate concurred in via 2/3 votes of all its members
But in the POV of the US Government, it is merely an
executive agreement

May a treaty be modified without the consent of all

the parties?
GR: NO
XPN: if allowed by the treaty itself, two states may
modify a provision only insofar as their countries are
concerned.

Grounds for invalidating a treaty

Error
Fraud
Corruption of a representative of a state
Coercion of a representative of a state
Coercion of a state by threat or use of force
Violation of Jus Cogens norm

Error as a ground
Error may be invoked as a ground for invalidating consent
only if the error relates to some fact or situation which was assumed by
the state invoking the error to exist at the time when the treaty was
concluded, and that fact or situation formed an essential basis of its
consent to be bound by the treaty
Error may not be invoked by the state
if it contributed to the error by its own conduct
if the circumstances where such as to put the state on notice of a
possible error

Fraud as a ground
If a state has been induced to conclude a treaty by the
fraudulent act of another negotiating State, the State
may invoke the fraud by invalidating its consent to be
bound by the treaty
Manipulation of the state representative through
corruption may also be invoked as invalidating the
states consent.

Grounds for termination of a treaty

Termination of a treaty or withdrawal by a party in accordance with the
terms of the treaty
Extinction of one of the parties to the treaty
Mutual agreement of all the parties to terminate the treaty
Denunciation of the treaty by one of the parties
Supervening impossibility of performance
Conclusion of a subsequent treaty inconsistent between the same parties
Violation of the treaty by one of the parties
Doctrine of Rebus sic stantibus
Outbreak of war between the parties to the treaty
Severance of diplomatic or consular relations
The emergence of new preemptory norm of general international law
renders void and terminates any existing treaty in conflict with such norms

Requisites of Rebus sic stantibus

The change must not have been used by the Party invoking the
doctrine
The doctrine cannot operate Retroactively
i.e it must not adversely affect provisions which have already been
complied with prior to the vital change in situation
The change must have been Unforseen or unforeseeable at the
time of perfection a treaty
The doctrine must be invoked within a reasonable Time
The duration of the treaty must be Indefinite
The change must be so Substantial that the foundation of the
treaty must have altogether disappeared.

When Rebusic Stantibus is not applicable

If the treaty establishes a boundary
If the fundamental change is a result of a breach by the
party invoking it or of an obligation under the treaty or
of another obligation owed to any other party to the
treaty

Clean State rule

When one state ceases to exist and is succeeded by
another on the same territory, the newly independent
state is not bound to maintain in force, or to become a
party to.
Any treaty by reason only at the fact that at the date of
the succession of States the treaty was in force in
respect of the territory to which the succession of States
relates

Exceptions to the clean state

rule
When the new state agrees to be bound by the treatise
made by its predecessor
Treatise affecting boundary regime (uti possidetis)

What is the most favored-nation

clause?
It may be defined in general as a pledge by a
contracting party to a treaty to grant the other party
treatment not less favorable than that which has been
or may be granted to the most favored among other
countries

 Senate Bill 1234 was passed creating a joint legislativeexecutive commission to give on behalf of the senate.
Its advice, consent and concurrence to treatise entered
into by the president The Bill contains the guidelines to
be followed by the commission in the discharge of its
functions.
Is the bill constitutional?
Answer: NO. The bill is not constitutional. The senate
cannot delegate its power to concur th etreatise ratified
by the president

Suggested Answer
No. as held in US vs. Curtiss wright export Corporation
299 US 304, it is the president alone who can act as
representative of the nation in the conduct of foreign
affairs. Although the senate has the power to concur.
In treatise, The president alone can negotiate treatise
and Congress is powerless to intrude into this.
However, if a matter involves a treaty or an executive
agreement, the HR may pass a resolution expressing its
view on the matter.

In case of conflict between a treaty and a statute,

which would prevail?
In case of conflict the court should harmonize both laws
first and if there exist an unavoidable contradiction
between them, the principle of lex posterior derogat
priori (a treaty may repeal a statute and a stature may
repeal a treat) will apply.
The later one prevails, in our jurisdiction treatise
entered into by executive are ratified by the senate and
takes the form of the statute.

State responsibility occurs:

By the direct injury to the rights of another state
By a wrongful act or omission which causes injury to an
alien
In this case the responsibility is owed to the State of
which an alien is a national

Elements of State Responsibility

Existence of an act of omission which violated an
obligation established by a rule of II in force between a
state responsible for the act or omission and the injured
State.
The unlawful act may be attributed to the State as a
legal person
Loss or damage must have resulted from the unlawful
act. But in inter-State relations even acts affecting the
dignity of the state must be compensated by adequate
reparation even if no pecuniary loss exist; damage is
not a separate constituent element.

Elements of State responsibility

The failure to fulfill an Intl law obligation is necessary but not
a sufficient element in the case of Intl delicts.
To create an automatic link of responsibility between the
acting and the claimant state, an additional condition
(damage suffered by claimant state) is required
This requirement is connected to the secondary rules of State
Responsibility since it concerns its implementation on the
diplomatic and judicial plane
It is always the elements of damage suffered by one State
that entitles that State to claim against another state which
caused the damage and demand redress

Doctrine of State Responsibility

When an injuri is inflicted to an alien within a state
territory, there is a need to determinewhether the state
can be held responsible for it
If a state violates a customary rule of international law
or treaty obligation, it commits an international
wrongful act

What is an internationally wrongful act?

When conduct consisting of an action or omission:
is attributable to the State under International law
Constitutes a breach of an international obligation of a
State

Breach of an International Obligation

A. The state must have been bound by an obligation at
the time of the breach
B. the Breach need not constitute an illegal act so long
as the act is not an conformity with a states
international obligations
(Articles on state responsibility, Art. 12)

Principle of Strict Liability

Fault is not necessary for state responsibility to be
incurred
Requisites (Brownlie)
Agency
Causal connection between the breachand the act or
omission imputable to the State

When is culpa (fault) relevant?

When the breach results from acts of individuals not
employed by the state or from the activities of licensees
or trespassers on its territory
When the state engages in lawful activities, in which
case responsibility may result from culpa in executing
these lawful activities
When determining the amount of the damages
When due diligence or liability for culpa is stipulated in
a treaty

The Standard of Diligence

Relevant where the conduct od individual State Officials
rather than state organs is concerned, State
Responsibility arises if the state failed to exercise the
due diligence which could reasonably have prevented
such conduct (Higgins)
B. Due diligence standard
Objective view: that the States ability to fulfill is
irrelevant
Relativist view: that the State must possess an ablity to
fulfill its obligations (Tehran hostages case)

Forms of State Liability

1. Direct liability
a. a state is in direct breach of its international
obligations
b. i.e. for the acts of State organs in their official
capacity
2. Vicariously liability
a. The state did not directly commit the injurious
conduct, but it becomes liable for being negligent in
preventing or punishing the act, and not for the act itself
b. i.e. for the acts of private individuals when

Forms of State Liability

Direct State Reponsibility- Where the international
delinquency was committed by superior government officials or
organs like the chief of state or the national legislature, liability
will attach immediately as their acts may not be effectively
prevented or reversed under the constitution or laws of the state.
Indirect State Responsibility- Where the offense is committed
by inferior government officials or by private individuals. The
State will be held liable only if, by reason of its indifference in
preventing or punishing it, it can be considered to have connived
in affecting its commission.

Doctrine of State imputability

1. A state is generealy responsible for the acts of state
organs and officials because these are agents of the
state.
2. A state is directly responsible for acts of private
individuals only when they act as its agents.
3. When private individuals are not acting as state
agents, a State is responsible not for their acts
directly, but for the States own negligence in not
trying to stop the acts of the erring individuals.
4. When they are not agents, and the state has no

Acts attributable to the state

Acts of the state organs- acts of state organs in their
capacity provided by law or under instructions of
superiors.
Acts of other persons- if the group of persons was in
fact exercising elements of the governmental authority
in the absence of default of the official authorities and
circumstances such as to call for the exercise of those
elements of authority.
Acts of revolutionaries- conduct of an insurrectional
movement which becomes the new government of a
State or part of a State.

Liability of Civilian Leaders

Civilian Leaders by contrast can be held reasonable if:
I. the subordinate was under the superiors effective authority and
control
II. The subordinate's criminal act were the result of the superiors
failure to exercise control properly
III. The superior knew or consciously disregarded, information
that clearly indicated a crime was being or would be committed.
IV. The criminal activities were within the effective responsibility
and control of the superior, and finally
V. The superior did not take all reasonable and necessary measures to
prevent or punish the crimes (article 28 (2))

Acts of Private Persons

General rule: a state is generally not responsible for the
acts of individuals
Exeptions: when the state adopts the acts of individuals
as its own, and thus becomes responsible for their
internationally wrongful acts (ASR, Article 11)
A state adopts private acts when:
The state encourages these acts
The individuals effectively act as agents in performing the
offending acts
The state endorses as its own the acts of individuals.

State liability from negligence

Even without adoption a state may be indirectly liable
for the acts of private individuals when it has an
international obligations to exert efforts to prevent the
internationally wrongful acts, or to prosecute the
miscreants, and the state maliciously or negligently fails
to do so.
Test: Whether due diligence was exercised to prevent
harm to foreigner and to foreign interest

Acts of other states

Dependent States
a) When the dependent state is so controlled that it
cannot be deemed as retaining separate international
personality, the dominant state is responsible for its
acts
b) Where the dependent state retain enough legal
powers to maintain a separate personality and still
conducts its own foreign relations, whether the
dominant state will be responsible for the dependent
states actions depend on the circumstances.

Joint Tortfeasors

a) When two states jointly commit an international

wrongful act
b) Though solidary liability should exist in principle, there
is little practice thereon.

Nauru vs. Australia

Where Nauru files a claim against Australia for
exploiting the formers phosphate resources
Court held that, even though it was possible that
Australia, UK, and New Zealand had solidary liability, a
claim made against just one of them was admissible

Legal Standing
1. Southwest Africa cases: A state cannot sue n a
particular right or interest unless that rght or interest
was vested in that state by some instrument, or some
rule of law (legal standing)
2. Barcelona Case and East Timor Case: All states
may have standing to make liability for the violation of
erga omnes obligation
3. But erga omnes standing did not take away the
jurisdictional requirement for the court to act
particularly the requirement that states must consent
to the exercise of jurisdiction by a Court before a court

Declaratory relief
a) Nature: A declariotion by a Court that as to the
illegality of an act constitutes a measure of
satisfaction (or reparation in the broad sense)
(brownie)
b) When available:
)When this is, or the parties deem this to be the proper
way to deal with the dispute
)When the object is not to give satisfaction for the
wrong received BUT ONLY TO RECOGNIZE THE
LIABILITY

Satisfaction as a relief
a. Nature: A measure other than restitution or
compensation which an offending state is bound to
take
b. Objects: often cumulative
.Apology and other acknowledgement of wrongdoing
. Punishment of individuals concerned
.Taking of measures to prevent recurrence of the wrong

Satisfaction vs. Compensation

Pecuniary satisfaction is meant to be a token of regret
and acknowledgemet of wrongdoing (a monetary
sorry)
Compensation is intended to make up for a repair the
damage done

Restitution as a reflief
a) Nature: involves wiping out all the consequences of
the breach and re-establishing the situation which
would probably have existed had the act not been
committed
b) Forms
)Legal restitution: declaration that an offending treaty,
law, executive act, or agreement is invalid
)Specific Restitution: restitution in kind or payment of
a sum sorresponding to the value of the restitution and
the award for losses sustained which would not be
covered by the first two

Chorzow Factory Case

Any breach of an agreement in ivolves an obligation to
make reparation
Reparation of wrong may consist in an indemnity
corresponding to the damage which the nationals of the
injured State have suffered as a result of the act.

Compensation as a Relief
a. Nature: Payment of money as a valuation of the wrong
done
b. Chorzow case: Amount of the compensation must
correspond to:
.The value which a restitution in kind would bear;
.The award of damages for loss sustained which would
not be covered by restitution in kind of payment in
place of it.

When a state may escape liability

1. If the wrong state consented to the offending act
2. If the offender states act was done in self defense;
3. If it constitute a countermeasure taken against the
wronged state;
4. If it was done in compliance with the offender States
obligations under a peremptory norm
5. If the author of the wrongful act has no other
reasonable way, in a ituation of distress, to save his
life or the lfe of a person entrusted to his case, unless
the state caused the distress or the act ib question will

No liability under state of necessity

a. Act was only way to safeguard an essential interest from a grave
and eminent peril (ASR, Art,25)
b. Act must not seriously impair an essential interest of the state or
states to which the obligation breached is owed, or of the
international community as a whole;
c. The existence and imminence of such a peril must be duly
established;
d. The means employed to avert the purported peril must be such as
are absolutely necessary to avert alleged danger
e. The obligation violated must not exclude the possibility of excluding
necessity

Sample problem
The Hezbollah, an armed militia in Lebanon was implicated in the
torture and rape of several Filipina OFWs
What remedies are available to the victims?
May the state of Lebanon be held liable under international law?
Answer:
Under intl law the victims must forst exhaust all local remedies in
Lebanon
If this is unsuccessful, the Philippine govt may take up the cause
of the victims as it affects the national interest.

Sample Problem
The Japanese govt confirm that during the WW2,
Filipinas were among those conscripted as comfort
women (or prostitutes) for Japanese troops in various
parts of Asia
The Japanese govt has accordingly launched a goodwill
campaign and has offered the PH govt substantial
assistance for a program that will promote through
government and non-government organizations (NGOs)
womens rights, child welfare, nutrition and family
health care.
An executive agreement is about to be signed for that
purpose

Sample Problem
The agreement includes a clause whereby the PH govt
acknowledges that any liability to the comfort women
or their descendants are deemed covered by the
reparations agreements signed and implemented
immediately after WW2
Juliano Iglesias, a descendant of now deceased comfort
woman seeks your legal advice on the validity of the
agreement.

Answer
The agreement is valid. The comfort women and their
descendants cannot assert individual claims against
Japan. As stated in Davis and Moore vs. Reagan (453 US
654) the sovereign authority of a state to settle claims
of its nationals against foreign countries has repeatedly
been recognized
This may be made without the consent of the nationals
or even wthout consultation wth them. Since the
continued amity between a State and other countries
may require a satisfactory compromise of mutual claims
may only be made by executive agreement

Sample Problem
In a raid conducted by rebels in a Cambodian town, an
American businessman who has been a longtime
resident of the place was caught by the rebels and
robbed of his cash and other valuable personal
belongings
Within minutes, 2 truckloads of govt troops arrived
prompting the rebels to withdraw. Before fleeing they
shot the American casing him physical injuries.

Sample Problem
Govt troopers immediately launched pursuit operations
and killed several rebels
No cash or other valuable property taken from the
American businessman was recovered
In an action for indemnity filed by the US govt in behalf
f the businessman for injuries and losses in cash and
property, the Cambodian govt contended that under Intl
law it was not responsible for the acts of the rebels

Sample Problem
1. Is the contention of the Cambodian government
correct? Explain.
2. Suppose the rebellion is successful and a new govt
gains control of the entire state, replacing the lawful govt
that was toppled may the new govt be held responsible
for the injuries or losses suffered by the American
Businessman?

Answers
1. Yes, the contention of the Cambodian govt is correct.
Unless it clearly appears that the government has failed
to use promptly and with appropriate force its
constituted authority it cannot be held responsible for
the acts of the rebels are not its agents and their acts
were done without its volition
In this case govt troopers immediately pusued the
rebels and killed several of them

Answer
2. The new govt maybe held responsible if it succeeds in
overthrowing the govt
Victrious rebel movements are responsible for the illegal
acts of their forces during the course of the rebellion.
The acts of the rebels are imputable to them when they
assumed as duly constituted authorities of the state.