I.

GENERAL PRINCIPLES broadening scope and breadth of international law

means that in contemporary times, it affects almost
A. International Law Defined
every aspect of our lives.
1. Origins. The intellectual origins of international law
B. Basis of International Law
run concurrently with the development of sovereignty.
Initially, Hugo Grotius and Alberico Gentili (16th 1. The Natural Law School. There is a natural and
century), both of competent theological training, universal principle of right and wrong, independent of
characterized international law as municipal law writ mutual intercourse or compact, which can be discovered
large. and recognized by every individual through the use of his
reason and conscience. Since individuals compose the
2. Breakthrough. By the early 19th century, following the
State whose will is but the collective will of the
Napoleonic wars, the first major peace summit took
inhabitants, the State also becomes bound by the natural
place (Congress of Vienna, 1814-15), followed by the
law.
early versions of several important treaties including
those establishing rules for the navigation of rivers 2. The Positivist School. The binding force of
(1815), those establishing the neutrality of Switzerland international law is derived from the agreement of the
(1831) and Belgium (1831), the first codified law on States to be bound by it. In this context, international law
maritime warfare (Declaration of Paris, 1856), and much is not a law of subordination but of coordination.
later, the Kellogg-Briand Pact (1928) which sought to
3. The Eclectic or Grotian School. In so far as it conforms
limit or abolish war. Notably, these years also saw the
to the dictates of right reason, the voluntary law may be
creation of an early framework of rules regarding the
said to blend with the natural law and be, indeed, an
recognition of States, and State responsibility.
expression of it. In case of conflict, the natural law
3. Terminology. The term international law was first prevails, being the more fundamental law.
formally used by Jeremy Bentham in 1870. [See: J.
4. Other suggested basis: Ubi Societas Ibi Jus. Under this
Bentham, Introduction to the Principles of Morals and
concept, law is considered as the hallmark of any political
Legislation, 1789)
community which intends to act together for the
4. Traditional Definition. That brunch of public law which common good. Law is therefore considered necessary for
regulates the relations of States and of other entities the society to function and, because it is necessary, it is
which have been granted international personality. [This ex hypothesi binding.
definition focuses on subjects, which are entities that
5. Belief of States. Another cogent argument for
possess international personality and have rights and
international law is simply that it exists because States
obligations recognizer under international law, as against
believe it exists. This belief can be seen from the
objects, which are persons or things in respect of which
communications the States make to each other,
rights are held and obligations assumed by the subjects
communications which notably contain substantial
of international law.] Another traditional definition is
references to law and other legal references.
that of Oppenheim, who refers to international law as "a
body of customary and conventional rules which are C. Theories of International Relations
considered legally binding by civilized States in their
intercourse with each other." This definition appears to 1. Realist Theory. This theory provides that States are in
exclude general principles of law and seems to make a a constant struggle for power; therefore, each State can
subjective distinction between so-called civilized and be reasonably assumed to be acting only in pursuit of
non-civilized States. [See: L. Oppenheim, International their individual interests.
Law: A Treatise, 1912] 2. Institutionalist Theory. This theory is more interested
5. Modern Definition. The law that deals with the with understanding international relations through the
conduct of States and international organizations, their interplay of States in the different institutions. As such,
relations with each other and, in certain circumstances, the relations of States are a product of their interaction
their relations with persons, natural or juridical not only among themselves, but also with the various
[American Third Restatement]. In a sense, the
institutions and hierarchal structures in the global according to Austin, does not follow this precept.
political sphere. International law, furthermore, lacks an effective
enforcement mechanism.
3. Neoliberalist Theory. This theory proceeds from an
assumption that States are geared towards gains and 2. Command Theory. Similar to the Austinian Dilemma,
profit, therefore, relations are often dependent on the “command theory” states that laws are commands
whether the same would be profitable or not. of the sovereign authority and are backed by sanction.
Those who subscribe to this theory therefore see
4. Democratic Peace Theory. This provides that
international law as merely a “code of rules of conduct
democratic States are generally hesitant to go to war
of moral force” and is simply “positive international
with other democratic States. [See also: Golden Arches
morality”.
Theory of Conflict Prevention]
3. International law as law. Although it may not comply
5. Hegemonic Stability Theory. This provides that the
with John Austin’s concept of law, i.e., enforced by
global system is likely to be stable when controlled by a
sovereign political authority, nonetheless it is still true
single State which would be known as the Hegemon.
law. This is because despite the prevailing belief that
D. Public International Law Distinguished from: international law does not comply with the requirements
of sovereign issuance, compulsion, and penalty, it still
1. Private International Law. As to nature, international has such mechanisms for enforcement such as self-help,
not municipal; as to remedies, international modes vs. force, collective action, and resort to the UN.
local tribunals; as to parties, international entities not
private persons; as to enforcement, international 4. Amendment and adjudication. Amendments (rules of
sanctions not local sheriff/police. Furthermore, Private change) are needed by legal systems. International law,
International Law (or Conflicts of Laws) is not really a unlike legislation, has rules based on consent (treaties
branch of international law but is rather a part of and customs). Thus, the focus here is on self-interest
domestic law dealing with disputes that arise from rather than common good. Notably, adjudication is also
private transactions between individuals or companies with consent.
and corporations from one country vis-à-vis their
5. Application, enforcement, and compliance. The
counterparts in another country.
absence of a central lawmaking authority and the
2. Internationality Morality or Ethics. Principles which debilitating jurisdictional defects weaken the
govern relations of States from the standpoint of expectation of compliance in comparison with the
conscience, morality, justice, and humanity. situation in the domestic plane. Enforcement is therefore
decentralized, unlike that of municipal law, and can be
3. International Comity. Rules of politeness/courtesy done either through peaceful measures or otherwise.
observed by the States in their relations with other These considerations are, however, balanced by the risk
States. of political/economic retaliation and other sanctions,
4. International Diplomacy. Objects of international such as adverse public opinion, retorsions, reprisals, the
policy and the conduct of foreign affairs. UN machinery, and the conviction that obedience will
redound to the public good.
5. International Administrative Law. Body of laws which
regulate the relations and activities of national and 6. Enforcement v. Enforceability. Actual enforcement is
international agencies with respect to their material and irrelevant to the binding quality of international law, as
intellectual interests which have received international enforcement is not what is meant by the term law. What
recognition. is material is that international law is "enforceable" even
though it lacks a police force or compulsory court.
E. International Law as True Law
F. Relationship with Municipal Law
1. The Austinian Dilemma. John Austin (19th century
positivist) states that laws are commands of a sovereign 1. Horizontal v. Vertical. International Law is
which receive the habitual obedience of the members of "horizontal" by nature whereas domestic or municipal
an independent political society. international law, law is "vertical". This means that in international law, all
States are more or less on equal footing and are generally separate planes, they may nevertheless affect each other
unable to compel each other to act, whereas under with regard to obligations. However, it is argued by
municipal law, a hierarchy exists to those lower in the Fitzmaurice that since the two systems lie on different
system. fields, their interaction should not bring them into
conflict with each other since they operate in two
2. Monist v. Dualist. To monists, there is no substantial
different spheres, with each being supreme in its own
distinction between international law and municipal law.
field. (Also see: H. Thirlway, The Law and Procedure of
But to dualists, the distinctions lie in that ML is issued by
the International Court of Justice, 2013)
a political superior for observance by those under its
authority, while IL is not imposed but adopted by States 6. Incorporation v. Transformation
as a common rule of action; ML consists of enactments
a. Incorporation. The doctrine of incorporation is
of the lawmaking authority, while IL is derived from such
expressed in Sec. 2, Art. II, Philippine Constitution, as
sources as international customs, conventions or general
follows: "The Philippines renounces war as an instrument
principles of law; ML regulates relations of individuals
of national policy, adopts the generally accepted
among themselves, while IL applies to relations between
principles of international law as part of the law of the
States and international persons; violations of ML are
land, and adheres to the policy of peace, equality, justice,
redressed through local judicial and administrative
freedom, cooperation and amity with all nations”.
processes, while in IL, they are resolved through State-
(Underscoring supplied) See: Kuroda vs. Jalandoni, 83
to-State transactions; and breaches of ML entail
Phil. 171 (although the Philippines was not a signatory to
individual responsibility. The Monist theory has been
the Hague and Geneva Conventions, international
criticized due to the fact that States, in practice, do not
jurisprudence is automatically incorporated in Philippine
follow this theory and instead follow international law
law, thus making war crimes punishable in the
only when it pleases them.
Philippines); Lo Ching vs. Archbishop of Manila, 81 Phil.
3. Written in the Law. States that have written 601; Borovsky vs. Commissioner of Immigration, G.R. No.
constitutions usually indicate the manner in which L-4362 (1951) (where prolonged detention of a Stateless
international law is treated in domestic courts: Federal alien pending deportation was deemed illegal, citing the
Republic of Germany (Basic Law, Art. 15 - "The general Universal Declaration of Human Rights which is
rules of international law shall form part of federal law. incorporated in Philippine law).
They shall take precedence over the law and create rights
b. Transformation. The doctrine of transformation
and duties directly for the inhabitants of the Federal
requires the enactment by the legislative body of such
territory"); Art. 15 of the Russian Constitution makes
international law principles as are sought to be part of
reference to "generally recognized principles and norms
municipal law. See: Laguna Lake Development Authority
of international law and international treaties"; the 1996
vs. Court of Appeals, 231 SCRA 292 (where it is declared
Constitution of the Republic of South Africa: "Customary
that Sec. 6, Art. II, Philippine Constitution, which reads:
international law is the law in the Republic unless it is
“The State shall protect and advance the right of the
inconsistent with the Constitution or an Act of
people to a balanced and healthful ecology in accord
Parliament." [Note that this generally covers only
with the rhythm and harmony of nature”, was taken
customs and principles but not treaties, since the latter
from the Universal Declaration of Human Rights and the
usually still needs transformation.]
Alma Conference of Declaration of 1978 recognizing
4. The Prism of State Practice. The application of health as a fundamental human right. Thus, the authority
international law in the municipal system is better of Laguna Lake Development Authority (LLDA) to issue a
understood through the prism of State practice. For cease and desist order to prevent the pollution of
example, in the UK and the US, domestic legislation or Marilao River was upheld on the basis of the principle of
judgments trump customary international law; while in necessary implication.
Malaysia, customary law is already deemed incorporated
c. Caution. Internationally speaking, the fact that a
in their jurisdiction.
country follows the incorporation doctrine for customary
5. The Theory of Coordination. This Doctrine states that international law does not automatically mean that the
although domestic law and international law are on two same follows for conventional international law or
treaties (e.g., United Kingdom). Likewise, some States obligations; see Polish Nationals in Danzig Case 1932
make a distinction between treaties which they deem [225 C.T.S. 188], where the PCIJ ruled that a state cannot
are self-executing from those they deem are not (e.g., adduce as against another state its own domestic laws
United States). However, the Philippines does not seem with a view to evading obligations incumbent upon it
to make such distinctions in employing the incorporation under international law; UN Headquarters Case 1988
doctrine, the only qualification being that in the case of [I.C.J. Reports 1988, p.12], where the ICJ affirmed that
treaties, the same must be in conformity with the international law prevails over municipal law).
Constitution. (Art. VIII, Sec. 5[2][a]; Secretary of Justice
ii. Application of Vienna Convention on the Law of
vs. Judge Lantion, G.R. No. 139465, January 18, 2000)
Treaties (VCLT). International law does not entirely
7. Conflict Between International Law and Municipal ignore municipal law, the latter being used as evidence
Law. either of custom or general principles of law. However,
following Art. 27 of the VCLT, which states that “a party
a. On the domestic sphere, with a local court deciding:
may not invoke the provision of its internal law as
i. If the conflict is with the Constitution: uphold the justification for its failure to perform a treaty”, municipal
Constitution. [See Sec. 5(2)(a), Art. VIII, Philippine law (or a gap within it) cannot be used by a state as
Constitution, which provides that the Supreme Court has excuse for non-compliance with an obligation under
the power to declare a treaty or executive agreement international law. (See: Free Zones of Upper Savoy Case
unconstitutional.] In Secretary of Justice vs. Judge 1932 [PCIJ Series A/B No. 46], where the PCIJ ruled that
Lantion, it was held that in States where the Constitution France could not rely on its domestic law to override its
is the highest law of the land, such as the Republic of the treaty obligations; Alabama Claims Arbitration Case
Philippines, both statutes and treaties may be 1932; LaGrand Case 2001. [(2001) ICJ Rep 466, where the
invalidated if they are in conflict with the Constitution. ICJ ruled that the US had violated its treaty obligations
when it failed to inform an alien arrested locally of his
ii. If the conflict is with a statute: the doctrine of rights under international law.]
incorporation, as applied in most countries, decrees that
rules of international law are given equal standing with, G. Sources of International Law
but are not superior to, national legilative enactments. A
1. In the domestic sphere, the constitution, legislative
treaty may repeal a statute, and a statute may repeal a
enactments, and case law (stare decisis) constitute such
treaty; thus, the principle of lex posterior derogat priori,
sources. On the international plane, it is a bit
which favors that which comes last in time will usually be
complicated because there is no body likened to a
upheld by the municipal tribunal. [See also Ichong v.
national legislature, no fundamental law, and the
Hernandez, 101 Phil. 115, where it was held that the
doctrine of precedents is not applicable.
Retail Trade Nationalization Law prevails over the Treaty
of Amity with China and the Universal Declaration of 2. Material and Formal Sources. Material sources are
Human Rights, because the law was passed in the distinguished from formal sources insofar as it is the
exercise of the police power of the State, and police material sources from which the substance of the law is
power cannot be bargained away through the medium of derived, while it is the formal sources that become the
a treat or a contract.] basis of the validity and force of law. An example of this
can be seen in the case of custom: while custom itself is
b. On the international sphere, with an international
a formal source of law, the state practice that was taking
tribunal deciding:
place even before such practice crystallized into custom
i. Superiority. International law is superior to municipal can be considered as the material source.
law, because international law provides the standard by
3. Given the wide range of possible sources of
which to determine the legality of a State’s conduct.
international law, the most authoritative enumeration is
[See: Alabama Claims Arbitration Case 1872 [John
found in Art. 38, Statute of the International Court of
Bassett Moore, History and Digest of the International
Justice, which provides that the Court, whose function is
Arbitrations to which the United States Has Been a Party,
to decide in accordance with International Law such
1898], where it was decided that the UK must take care
disputes as are submitted to it, shall apply:
that its municipal law conform with its international
As Primary Sources: ii. Scope. Custom may be general or regional. In either
case, the elements of a custom must both exist and be
a. International Treaties and Conventions, whether
proven. See: Asylum Case 1950, where the Court ruled
general or particular, establishing rules expressly
that although a regional custom can exist, the same must
recognized by the contesting states.
still be proven; Right of Passages Case 1960 [(1960) ICJ
i. Treaties may codify, crystallize, or create obligations. Rep 6], where the ICJ again affirmed the possibility of a
Codification is done where the treaty merely compiles regional custom but denied the Portugal’s claim since it
existing obligations to facilitate simplicity, as in the case failed to prove that such a custom existed.
of the 1982 UNCLOS. Crystallization is done to formalize
iii. Elements. The two main elements of custom which
as an obligation existing state practice, as in the case of
must concur are State practice and opinion juris. As sub-
the 1958 Geneva Continental Shelf Convention. Creation
elements of State practice, the practice in question must
is done where the treaty itself is the first time wherein
be demonstrated to have been general, uniform, and
such obligation was created between the parties, as is
over a long enough period of time to enable it to
usually the case in bilateral trade agreements.
crystalize (duration). See: Nicaragua Case [(1986) ICJ Rep
ii. Treaties, just like domestic law, are governed by the 14], where ICJ discussed custom and its elements
rules on Lex Posterior and Lex Specialis. Lex Posterior extensively; North Sea Continental Shelf Case 1969
provides that a later treaty overrides a prior treaty in [(1969 ICJ Rep 3)], where the sub-elements of State
case of incompatibility while lex specialis provides that a practice were discussed extensively.]
more specific treaty should be followed if in conflict with
iv. Evidence of Custom. According to Brownlie, custom
a more general treaty.
can be proven using a wide range of instruments
iii. Treaties may be bilateral or multilateral, depending on including diplomatic correspondence, press releases,
how many parties are involved. Multilateral treaties are opinion of official legal advisers, executive decisions and
usually general in nature and establish common practices, judicial decisions, legislation, and resolutions
principles of law, while bilateral treaties are usually for of the United Nations General Assembly, among others.
the regulation of particular conduct such as trade. Although a large number of States performing the same
conduct may create a presumption that there is in fact a
iv. Law between the parties. Regardless of how many custom in existence, such a presumption is not
states are involved, it must always be remembered that conclusive and may be rebutted with a wide range of
a treaty becomes the law between the parties who gave evidence, (See:J. Crawford, brownlie’s Principle of Public
their consent thereto. Although there are instances International law, 2012)
where states who do not give their consent are bound by
treaties, such as situations wherein a treaty is merely a) The Baxter Paradox, under the Baxter Paradox, named
meant to codify existing practices regarding jus cogens, after Professor R.R. Baxter, it is believed that as more and
the general rule still stands that states are only bound to more States subscribe to a treaty , the understanding of
the treaties they gave their consent to, and only to the the contemporary status of customary international law
extent by which they allowed themselves to be bound. will decrease because the actions of States are already
expressly guided by a real obligation under the treaty
b. International Customs, as evidence of a general and not a mere sense of opinio juris. Thus, Baxterposists
practice accepted as binding law through persistent that if a treaty becomes so popular as to only have a
usage over a long period of time, e.g., angary, exemption handful of States not party to it, those handful of States
of unarmed fishing vessel from capture. It is necessary, would be the onl;y ones capable of generating custom,
however, that the custom be: [i] prevailing practice by a but simultaneously their task appears to be the
number of states; [ii] repeated over a considerable Herculean since custom requires a wider and much more
period of time; and [iii] attended by opinion juris or a general application or observance of conduct.
sense of legal obligation.
v. State Practice. State practice consists not only of what
i. Definition. In the Asylum Case [(1950, ICJ Rep 266], the States say or do but also of what they fail to say or do. As
ICJ held that custom is defined as ‘’constant and uniform mentioned earlier, State practice has three sub-elements
usage accepted by law’.
which are generality, uniformity, and duration. (See; particularly those who qualify as persistent objectors.
North Sea Continental Shelf Case 1969) Following the Anglo-Norwegian Fisheries Case 1951, a
persistent objector is one who objects to the practice
a) Uniformity. According to the Nicaragua Case 1986,
from the early stages of the practice and maintains the
although uniformity is required, absolute uniformity by
said objection consistently.
all States is not. As such, substantial uniformity of a given
practice among States is enough. Following the North ix. Exception to Persistent Objector. As an exception,
Sea Continental Shelf Case 1969, actual uniformity is not mere objection at the beginning is not enough for a State
required provided that the practices of the States are to claim it is a persistent objector: a State cannot claim
extensive and virtually uniform with one another.( Also to be persistent objector when the practice being
see; Anglo-Norwegian Fisheries Case 1951 [(1951) ICJ objected to has already attained the status of jus cogens.
Rep 116], where the ICJ ruled that some degree of
x. Relationship between Treaty and Custom. Generally, if
uniformity amongst State practices is essential before a
there is a conflict between a treaty and a custom, a treaty
custom can exist).
is superior. The exception to this rule is if the custom
b) Generality. Given that a custom can be either general involved is jus cogens. Also, a treaty may create custom,
or regional, the practice under consideration must be provided, it was intended to be norm-creating custom,
widespread among the States that are particularly and a State may be bound by both a treaty and a custom
involved in the relevant activity. Thus, the universality of at the same time insofar as they do not conflict with each
a given practice is not a requirement. (See: Asylum Case other. (See North Sea Continental Shelf case 1969, where
1950) ICJ examined whether the equidistant principle
contained in the 1958 Geneva Convention on the
c) Duration. Although the length of time required for a
Continental Shelf had already become custom;
practice to crystallize into State practice varies from
Nicaragua Case 1986, where the ICJ ruled that the mere
situation to situation, the ICJ in the North Sea Continental
fact that the a custom is enshrined in a treaty does not
Shelf Case (1969) stated that the time period must be
prohibit the Court from entertaining a claim seeking
long
relief based on violation of custom; Fisheries Jurisdiction
d) Instant Custom. Although scholars have been arguing Case [(1974) ICJ Rep 3], where the ICJ ruled that the
for the existence of an instant custom, especially in the Iceland was still bound by a treaty it had earlier signed
aftermath of the 9/11 terrorist attacks, the ruling of the despite the emergence of newer practices among States
ICJ in the North Sea Continental Shelf case 1969 should provided the obligation in the treaty had not radically
still be controlling insofar as it prescribes the elements of changed.)
uniformity and generality are shown to exist, must still
c. General Principle of Law. These are rules derived
take place before a practice can crystallize into State
mainly from natural law, observed and recognized by
practice.va
civilized nations, e.g., res judicata, prescription, pacta
vi. Opinio Juris. According to the Lotus Case ([1927]) PCIJ sunt servanda and estoppel. See Agustin vs. Edu, where
Series A, No. 10), opinion juris constitutes a State’s belief the doctrine of pacta sunt servanda was applies by the
that it is acting due to legal obligation. The fact that a Court relative to the validity of the administrative rule
State is acting in accordance with opinion juris is never requiring the use of early warning device, as part of the
presumed and must always be proven. Vienna Convention on Road Signs and Signals.

vii. Legal Conundrum. Should opinio juris precede State i. Definition. General principle of law are propositions of
practice or should it already be present when the law that are so fundamental that they are found in
practice is performed? Although this question has not yet almost all legal systems. Notably, general principles of
been formally resolved, it must nevertheless be law are a separate source of law from both treaty and
understood that custom can only arise once both custom.
elements concur.
ii. Purpose. General principles of Law were introduced as
viii. Persistent Objector. The mere existence of a custom a source of law in order to combat the problem on non-
may not necessarily be enough to bind States, liquet or the absence of any source of law or obligation
to point to in order to resolve the conflict). As such, even norm has been accepted as a rule of international law.
absent a particular treaty or custom, the Court may not The decision of a national court may be used depending
renege on its duty to decide a case since it is allowed to upon the prestige and perceived impartiality of the
rule on the matter on the basis of general principles of domestic court, not being in conflict with the decisions
law of international tribunals, and its admissibility in the
forum where it is cited.
iii. Scope. Although it is unclear what the formal scope of
general principles of law is, the decisions of the ICJ seem i. Binding Effect. Following the Article 59 of the ICJ
to lean towards general principles of law encompassing Statute, the decisions of the ICJ have no binding effect
both private law and public law concepts. See: Advisory except as to the State parties and only in respect of that
opinion on the Effect of Awards of Compensation Made particular case.
by the United nations Administrative Tribunal [(1954) ICJ
ii. Judicial Legislation. Despite res judicata being
Rep 47], where the ICJ acknowledge the principle of res
generally inapplicable with regard to decisions by the
judicata; Temple of Preah Vihear case [(1962) ICJ Rep 6]
international tribunals, as a rule which the tribunal
where the ICJ used the principle of estoppel in finding
adopts, when the same is not based on any existing rule
Thailand to have recognized Cambodia’s sovereignty
at the time of the decision, results- by such decision of
over disputed territory; Corfu Channel Case [(1949) ICJ
the tribunal – a new, provisional rule being followed. (
Rep 4], where circumstantial evidence, in the absence of
See : Anglo-Norwegian Fisheries Case 1951, where the
direct evidence, was used to ascertain whether or not
ICJ decision fixing Norway’s baselines were based more
Albania was liable for the sinking of British Ships; Status
on historic and economic considerations rather than a
of Eastern Carelia Case [(1923) PCIJ Series B. no. 5],
formal source of international law; Reparation
where the PCIJ ruled that it could not rule on the matter
Case [(1949) ICJ Rep 1740], where the ICJ created the
because it did not have jurisdiction over Russia who was
guidelines to be used by the United Nations in presenting
the respondent; Chorzow Factory case [(1927) PCIJ series
international claims against both members and non-
A, No. 9], where the PCIJ used the principle that taking
members of the UN, in order to seek reparations for
requires compensation to be valid when it decided a case
damages sustained by the UN or any of its agents.)
involving damages; The Separate opinion of Justice
McNair in the Advisory Opinion on the International iii. Judicial Legislation and Custom. When judicial
Status of the South West Africa 1950 [(1950) ICJ Rep 128], legislation occurs, and its basis is the practice of States,
where the general principle of trusts was discussed in does this mean that such a practice is now custom?
relation to the advisory opinion; LIAMCO v. Libya 1981 Likewise, can a judicial decision which has all the
(20 1LM 1), where the general principle of equity was elements of custom be considered customary? Although
used in determining the amount of damages. these questions appear to be purely academic, they
could have an effect on the future understanding of the
[Note: To these may be added the principle of ex aequo
sources of international law.
et bono (what is good and just), provided that the parties
to the dispute agree thereto, as provided in Art. 38(1), iv. Judicial Consistency. Despite the general
Statute of the International Court of Justice. This must inapplicability of res judicata with regard to decisions of
not, however, confused with the principle of equity since international tribunals, these tribunals nevertheless
equity is a part of the judicial function and can be applied follow the rule on judicial consistency. This rule provides
at any time, whereas the principle of ex acquo et bono, that, as much a s possible, rulings should not deviate
which considers only socio-economic and political from already settled matters except when necessary.
considerations, may only be applied when asked for by
the parties.] v. Local Jurisprudence. According to the German interests
in polish Upper Silesia Case [(1926)] PCIJ Series A no. 7],
As Secondary Sources: the PCIJ remarked that from the viewpoint of
international law, municipal law, including legal
a. Judicial Decisions, generally of international tribunals,
decisions of domestic courts, are merely facts from
the most authoritative being the International Court of
which can be inferred the will of the State and its
Justice. They are not really sources, but “subsidiary
activities.
means” for finding what the law is, and whether the
vi. Judicial Courtesy. In the Advisory opinion on the becomes clear that States cannot evade their jus cogens
Interpretation of Peace treaties with Bulgaria, Hungary, by creating a treaty or pointing to one already existence.
and Romania [(1950) ICJ Rep 221], the ICJ clarified that
5. Other sources of Law. Although not explicitly
when it is requested for an opinion regarding case, if the
mentioned under Article 38, other possible sources of
result will materially affect the decision in the pending
law are resolutions international organizations, soft laws,
case, the ICJ will not hesitate to decline the request for
and equity. In the Nicaragua case 1986, the ICJ despite
an opinion.
much criticism, examined, and appreciated a resolution
b. Writings of Publicist, which must be fair and unbiased by the Un General Assembly as possible evidence of
representation of international law by acknowledged obligation.
authorities in the field.
a. Soft laws. Soft laws are mere guidelines for conduct.
i. Publicist are a particular class of learned scholars With regard to the Philippines, these are not considered
whose writings are regarded as being persuasive sources as binding. (See: Pharmaceutical and Health Care
of international law. Although they are merely Association of the Philippines vs. Health Secretary
considered as subsidiary sources of international law, Francisco T. Duque [G. R. No. 173034], where the
they play a primary role in helping practitioners and non- Supreme Court ruled that although soft laws can
practitioners alike in better understanding various influence the behavior of States, they are still considered
concepts in law. Example of these publicists are Grotius, as non-binding norms, principles, and practices)
Vattel, Oppenheim, Rousseau, and Lauterpacht.
b. Lex Mercatoria. Although not strictly a law which is
ii. Caution. Despite their role in the understanding and imposed by a sovereign, lex mercatoria, which has
development of international law, such writings are not evolved through the practice of businessmen, is still
immune from losing their value over time. As such, while hugely a part of international commercial law.
some writings are of great importance today, unless they
are updated, they could be significantly less important in
the future.

4. Interpretation of Article 38. 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 custom over
general principles of law, except:

a. The principle of Jus Cogens. 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. Examples
are slaves trade, piracy, and terrorism. See Hilao v,
Marcos (25 F.3d 1467), where it was held that official
torture of prisoners/dissenters are violation of the
principle of jus cogens.

i. Following Article 53 of the VCLT, a treaty is void if it

comes into conflict with a peremptory norm of
international law. Furthermore, Article 63 of the VCLT
provides that if a new peremptory norm emerges, all
treaties in conflict with it are rendered void. As such, it