Public International Law: Questions & Suggested Answers

 I. Briefly define the following:

1. Public International Law 
• 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)
2. Doctrine of Sources
• It lays down conditions for verifying and ascertaining the existence of legal principles. The conditions are the observable manifestations of the “wills” of States as revealed in the processes by which norms are formed —that is, treaty and state practice accepted as law. The process of verification is inductive and positivistic. It is the process of finding what laws the states themselves have created and what laws they are willing to place themselves under. It is a manifestation of the fact that international law is characterized by individualism. (Bernas, p.8)
3. Ex aequo et bono
• It is based upon the idea of ‘fundamental fairness’ as a guideline principle in arbitration and other dispute settlement processes. Provided that the parties expressly agree, it enables judges and arbitrators to decide a case according to what—in literal translation of the original Latin phrase—‘is fair (or equitable) and good’ (Fair and Equitable Treatment). (Oxford Public International Law, https://opil.ouplaw.com/)
4. Marten's Clause
• It puts the “laws of humanity” and the “dictates of public conscience” on the same level as “usages of states” or usus thus suggesting that even without practice or usus or at least without consistent practice there can emerge a principle of law based on laws of humanity and the dictates of public conscience. (Bernas, p.15)
5. Moving boundaries doctrine
• When part of the territory of a state becomes territory of another state, the international agreements of the predecessor state cease to have effect in respect of the territory and the international agreements of the successor state come into force there. Ex: If X has a treaty with Y, and part of Y is transferred to Z, X may seek relief from treaty obligation under “rebus sic stantibus.’’ (Bernas, p.83)
6. Authentication of text
• Negotiations conclude with the signing of the document. The signatures serve as authentication of the document. (Bernas, p.29)
• The adoption of the text of a treaty at an international conference takes place by the vote of two-thirds of the States present and voting, unless by the same majority they shall decide to apply a different rule. (Art. 9, Vienna Convention)
7. Interpretation declarations in a treaty
• An expression of how a state understands its adoption of the treaty. These are not meant to be a derogation from the treaty. (Bernas, p.32)
8. Rebus sic stantibus
• A mode of terminating a treaty due to change of fundamental conditions. (Bernas, p.46)
• The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. (Art. 62, Vienna Convention)
9. Instant custom
• It is not the product of constant and prolonged practice. Rather it comes about as a spontaneous activity of a great number of states supporting a specific line of action. Ex: The after- math of the attack on the Word Trade Center in New York have given birth to instant customary law classifying the attack as an armed attack under Article 51 of the UN Charter justifying collective self-defense. (Bernas, p.14)
10. Pacta sunt servanda
• The first fundamental rule on application of treaties. (Bernas, p.38)
• Every treaty in force is binding upon the parties to it and must be performed by them in good faith. (Art. 26, Vienna Convention)
• Agreements which are legally binding must be performed. (Oxford Public International Law, https://opil.ouplaw.com/)
11. Soft law
• It is also called as “non-treaty agreements.” They are international agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties. Other sources of soft law are administrative rules which guide the practice of states in relation to international organizations. (Bernas, p.21)
12. Mistake of fact
• It is one of the usual ground for invalidation of treaties. (Bernas, p.42)
• A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. (Art. 48, Vienna Convention)
13. Clean slate rule
• A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of 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. (Art. 16, Vienna Convention)
• However, it does not apply to treaties affecting boundary regimes. (Bernas, p.56)
14. Doctrine of transformation
• For international law to become part of domestic law it must be expressly and specifically transformed into domestic law through the appropriate constitutional machinery such as an act of Congress or Parliament. (Bernas, p.60)
15. Succession of treaties
• When one state ceases to exist and is succeeded by another on the same territory, the question arises whether the new state is bound by the commitments made by its predecessor. (Bernas, p.56)

II. Discuss.

1. Explain and illustrate equity as a source of international law.
• Equity, when accepted, is an instrument whereby conventional or customary law may be supplemented or modified in order to achieve justice. It has both a procedural and substantive aspect. Procedurally, it means a mandate given to a judge to exercise discretion in order to achieve a determination that is more equitable and fair. 
• Different kinds of equity are distinguished: intra legem (within the law), that is, the law is adapted to the facts of the case; praeter legem (beyond the law), that is, it is used to fill the gaps within the law; and contra legem (against the law), that is, a refusal to apply the law which is seen as unjust. 
• Illustration: Diversion of Water from the Meuse (Netherlands v. Belgium). 
  • Netherlands had complained that certain canals constructed by Belgium were in violation of an agreement in that the construction would alter the water level and rate of flow of the Meuse River. The Court rejected the Netherlands claim and a Belgian counterclaim based on the construction of a lock by the Netherlands at an earlier time.  (Bernas, p.20)
2. Treaties have a prescribed form. True or False. Justify.
• True. Treaties have a prescribed form.
  • The Vienna Convention defines a treaty as “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.” The Vienna Convention applies to international agreements that satisfy the Convention’s definition, specifically that they be in writing and reflective of the intention of the parties to be bound, and governed by international law.
• While treaties are generally in written form, there are writers who hold that even an oral agreement can be binding. However, only written agreements that are new, come under the provisions of the Vienna Convention. (Bernas, p.22)

III. Create a flow-chart of Treaty-Making Process in accordance with the Law on Treaties. Incorporate the process as found in the 1987 Constitution.