Q:

Is International Law Law?

A:
The question of whether or not International Law is a law lies on the
theory of whether it is enforceable or implementable or not. Some thinkers
like Thomas Hobbes1, and Jeremy Bentham2 are of the opinion that seeing
that international law is not binding or enforceable, it is not a law in the
true sense. On the other hand, German jurist Lassa Francis Lawrence
Oppenheim,3 James L. Brierly Brierly,4 and Joseph Gabriel Starke 5 were of
the opinion that international law is a law due to the fact that it could be
implemented or enforced. The latter three (3) scholars are considered the
three prominent figures of international law whose scholarly works carry
the most weight.
Q:What are the bases of international law?
A:
The basis for the authority of international law is the same as the
basis for early laws of every character, namely, the general consent of those
to be bound thereby, strengthened by custom and continued acquiescence.
There is no common superior among nations to promulgate principles of
international law, and on the other hand, no single nation can introduce a
new principle into this system.6
Q:What is meant by jus cogens?
A:
It literally means compelling law. A jus cogens norm 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

1 Robert F. Turner, International Law is really Law, (*July 9, 2013, 10:10P.M)

http://www.fed-soc.org/publications/detail/international-law-really-is-law
2http://www.jstor.org/discover/10.2307/2193684?
uid=16936288&uid=3738256&uid=2&uid=3&uid=67&uid=31022&uid=62&sid=21
102530563967
3 http://pgdalatm.nalsar.ac.in/materials/Intro%20to%20International%20Law.pdf
4 Supra Note 18 at 5
5 S.K. Verma, AN Introduction to Public International Law, 49 (2004)
6 9 Wilson & Tucker on International Law, page 11

modified only by a subsequent norm of general international law having the

same character. (Art. 53, Vienna Convention on the Law of Treaties)
Q:

What is meant by erga omnes?

A:
It is an obligation of every State towards the international community
as a whole. All states have a legal interest in its compliance, and thus all
States are entitled to invoke responsibility for breach of such an obligation.
(Case Concerning The Barcelona Traction, ICJ 1970).
Q:

What is meant by opinion juris?

A:
An element of international custom, it means recognition of a practice
as a legal norm and therefore obligatory.
Q:

What are the sources of International Law?

A:

Primary Sources:
1. International conventions, whether general or particular,
establishing rules expressly recognized by the contesting state.
2. International custom, as evidence of a general practice accepted as
law; and
3. The general principles of law recognized by civilized nations;
(Article 38(1), Statute of the International Court of Justice)
Note: Sources of law refer to norms derived from international
conventions on treaties, customs, and general principles of law. The
distinctive character of these norms is that they are created or they
acquire binding effect through the methods pointed above.
Secondary Sources:
1. Decisions of international tribunals; and
2. Teachings of the most highly qualified publicists of various nations.

Q:

Distinguish soft law from hard law

A:

Hard law means binding laws. To constitute law, a rule, instrument or

decision must be authoritative and prescriptive. In International law,
hard law includes treaties or international agreements, as well as
customary laws. These instruments result in legally enforceable
commitments for countries (states) and other international subjects.

Soft law means commitments made by negotiating parties that are not
legally binding. By implication, those set of international customary
rules, laws and customs which do not carry any binding effect
whatsoever or impose no obligation at all to states for its compliance.
Q:
How do we distinguish Private International Law from Public
International Law?
A:

Public International Law is a body of legal principles, norms and

processes which regulates the relations of States and other
international persons and governs their conduct affecting the interest
of the international community as a whole whereas Private
International Law is that part of the law of each State which
determines whether, in dealing with a factual situation, an event or
transaction between private individuals or entities involving a foreign
element, the law of some other State will be recognized.

Q:
Is there a collective responsibility for a breach of international
law?
A:

The responsibility incurred consequent upon a breach of an

international obligation by a State is collective in character. For that
reason the fulfilment of reparation obligations by an author State,
although effected by the organs of that State, burdens the entire
population of the State. And that is especially the case when
reparation has to be provided in the form of compensation.7

Q:What is the extent of a States Freedom of Action?

A:

A States freedom of action, it is opined, is limited to its jurisdiction

and sovereignty. State sovereignty is the right to exercise in a definite
portion of the globe the functions of a State to the exclusion of
another State. Sovereignty in the relations between States signifies
independence. Independence in regard to a portion of the globe is the
right to exercise therein to the exclusion of any other State, the
functions of a State. (Island of Palmas case: USA v. the Netherlands)

7 Andre de Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical

Inquiry into the Implementation and Enforcement of the International Responsibility
of States, p. 220

Under the principle of auto-limitation, any State may by its consent,

express or implied, submit to a restriction of its sovereign rights.
There may thus be a curtailment of what otherwise is a plenary power.
(Reagan v. CIR, G.R. No.L-26379, Dec. 27, 1969)
Q:
Distinguish between
International Law
A:

the

Monist

and

Dualist

theories

in

Under the Monist Theory, both international law and domestic law are
part of a single legal order; international law is automatically
incorporated into each nations legal system and that international
law is supreme over domestic law.
While the Dualist Theory is the theory that affirms that the
international law and municipal law are distinct and separate; each is
supreme in its own sphere and level of operation.

Q:
Distinguish between the Doctrine of Incorporation and the
Doctrine of Transformation.
A:

The Doctrine of Incorporation

Under this doctrine, rules of international law form part of the law of
the land and no further legislative action is needed to make such rules
applicable in the domestic sphere. The doctrine decrees that rules of
international law are given equal standing with, but are not superior
to, national legislative enactments.
The Doctrine of Transformation
This doctrine holds that the generally accepted rules of international
law are not per se binding upon the state but must first be embodied
in legislation enacted by the lawmaking body and so transformed into
municipal law.

Q:
In case of conflict between municipal law and international law,
which should prevail?
A:

The basic rule would be to attempt to reconcile the apparent

contradiction and thereby give effect, if possible, to both systems of
aw. For this purpose, it should be presumed that municipal law is

always enacted by each state with due regard for and never in
defiance of the generally accepted principles of international law.8
Q:What are the Calvo and Drago Doctrines?
A:

Calvo Doctrine
The Calvo Doctrine is a foreign policy doctrine which holds that
jurisdiction in international investment disputes lies with the country
in which the investment is located. The Calvo Doctrine thus proposed
to prohibit diplomatic protection or (armed) intervention before local
resources were exhausted. An investor, under this doctrine, has no
recourse but to use the local courts, rather than those of their home
country. As a policy prescription, the Calvo Doctrine is an expression
of legal nationalism. The principle, named after Carlos Calvo, an
Argentine jurist, has been applied throughout Latin America and other
areas of the world.
The doctrine arose from Calvos's ideas, expressed in his Derecho
internacional terico y prctico de Europa y Amrica (Paris, 1868;
greatly expanded in subsequent editions, which were published in
French). Calvo justified his doctrine as necessary to prevent the abuse
of the jurisdiction of weak nations by more powerful nations. It has
since been incorporated as a part of several Latin American
constitutions, as well as many other treaties, statutes, and contracts.
The doctrine is used chiefly in concession contracts, the clause
attempting to give local courts final jurisdiction and to obviate any
appeal to diplomatic intervention.9
Drago Doctrine
The Drago Doctrine was announced in 1902 by the Argentine Minister
of Foreign Affairs Luis Mara Drago. Addressing the Monroe Doctrine
and the influence of European imperial powers, it set forth the policy
that no foreign power, including the United States, could use force
against a Latin America nation to collect debt. In 1904, the Roosevelt
Corollary was issued by the United States in response to the Drago
Doctrine. The Roosevelt Corollary asserted the right of the United

8 Cruz, International Law, 2003 Edition, p. 7.

9 Entry on Carlos Calvo from the Columbia Encyclopedia 6th Ed.

States to intervene Latin America in the interests of American

business and Latin American independence from European powers.
It grew from the ideas expressed by Carlos Calvo in Derecho
internacional terico y prctico de Europa y Amrica, commonly
known as the Calvo Doctrine. The Calvo Doctrine proposed to prohibit
diplomatic intervention before local resources were exhausted.
The Drago Doctrine itself was a response to the actions of Britain,
Germany, and Italy, who in 1902 had blockaded and shelled ports in
response to Venezuela's massive debt, acquired under governments
previous to president Cipriano Castro. A modified version by Horace
Porter was adopted at the Hague in 1907, adding that arbitration and
litigation should always be used first.
The Drago Doctrine was used by Venezuela as a rationale for their
vote in support of Argentina at the Organization of American States
meeting discussing the Argentine debt crisis involving NML Capital.10
Q:What is the Doctrine of Equality of States?
A:

One of the fundamental rights of a state is equality with all other

states. This right is inherent in the concept of a state as a subject of
International Law and is given general recognition by long-standing
state practice. Precise definition of the principle of equality of states
is difficult, however, since many factors affect its application in any
particular situation. Thus, it is best to differentiate between legal
equality, that is, the concept of state equality as it applies to the legal
relations that states maintain with each other, and political equality,
which reflects the relative distribution of economic and military power
between states.
In its legal effects the principle of state equality has several important
consequences. Probably the most important manifestation of the
doctrine is the right of every state to have one vote in matters
requiring the consent of states. A natural consequence of this is that
the vote of every state, no matter how large or small the state, counts
the same as the individual votes of all other states. Legal equality also
means that no state can claim jurisdiction over other states, and as
corollary, a state is independent of the political will of all other states.

10 Encyclopedia.com article on Luis Mara Drago". Encyclopedia.com. Retrieved 9

April 2011.

From this also flows the concept of Sovereign Immunity, which

prevents one state from being sued in the courts of another state
without the consent of the first state. Likewise, equality of states
means that no other state can question the legality of official acts of
another state, a rule known in U.S. law as the act of state doctrine.
The doctrine of equality of states means one thing in legal effect, but
it also must be reflected against the realities imposed by differences
in political power. Political equality is in some sense a fiction, because
in political terms few states are equals. More powerful states can
establish arrangements that less powerful states assent to informally,
even though under a strict legal regime, they would not be bound by
the agreement.The differences between legal and political equality
are also recognized in the organization of the United Nations.
Although the Charter of the United Nations expressly recognizes the
sovereign equality of states, and the General Assembly formally
operates according to that principle, the five permanent members of
the Security Council retain express Veto power over several important
aspects of U.N. functions, such as use of enforcement measures,
admission to membership, amendments to the Charter, and election of
the Secretary-General. Notwithstanding the fact that nations
recognize limits on the principle of state equality in instances where
political power is crucial, the principle of legal equality is basic to the
operation of international law and a symbolic concept incorporated
into the formal structure of most international institutions.
Q:

What is the Doctrine of Non-Intervention?

A:

In international law, the principle of non-intervention includes, but is

not limited to, the prohibition of the threat or use of force against the
territorial integrity or political independence of any state. The
principle of non-intervention in the internal affairs of States also
signifies that a State should not otherwise intervene in a dictatorial
way in the internal affairs of other States. The International Court
referred in the Nicaragua case to [t]he element of coercion, which
defines, and indeed forms the very essence of, prohibited
intervention (ICJ Reports 1986, p. 108, para. 205). As Oppenheim's
International Law puts it, "the interference must be forcible or
dictatorial, or otherwise coercive, in effect depriving the state
intervened against of control over the matter in question. Interference
pure and simple is not intervention" (Vol. I, 9th ed., 1992, p. 432).
Butthe extent to which acts other than the use of force are, or should
be, prohibited is uncertain.

Intervention (even military intervention) with the consent, properly

given, of the Government of a State is not precluded.
The more common term is non-intervention, though noninterference also appears in the texts. The latter may suggest a wider
prohibition, though in most contexts the two terms seem to be used
interchangeably.11
Q:What is the principle of Self-Determination?
A:

Self-determination denotes the legal right of people to decide their

own destiny in the international order. Self-determination is a core
principle of international law, arising from customary international
law, but also recognized as a general principle of law, and enshrined
in a number of international treaties. For instance, self-determination
is protected in the United Nations Charter and the International
Covenant on Civil and Political Rights as a right of all peoples.
The scope and purpose of the principle of self-determination has
evolved significantly in the 20th century.
In the early 1900s,
international support grew for the right of all people to selfdetermination. This led to successful secessionist movements during
and after WWI, WWII and laid the groundwork for decolonization in
the 1960s.
Contemporary notions of self-determination usually distinguish
between internal and external self-determination, suggesting that
"self-determination" exists on a spectrum. Internal self-determination
may refer to various political and social rights; by contrast, external
self-determination refers to full legal independence/secession for the
given 'people' from the larger politico-legal state.12

11 The Princeton Encyclopedia of Self-Determination, http://pesd.princeton.edu/?

q=node/258, retrieved 21 August 2015
12 Cornell University Law School Legal Information Institute,
https://www.law.cornell.edu/wex/self_determination_international_law, retrieved 21
August 2015