International Law
Sources of International Law
The sources of international law – international conventions (treaties), international custom,
general principles of law, and judicial decisions—are treated differently in this jurisdiction.
1. The generally accepted principles of international law include international customs and
general principles of law. Under the incorporation clause, the principles form part of the
law of the land. And by “mere constitutional declaration, international law is deemed to
have the force of domestic law."
Generally accepted principles of international law refer to norms of general or
customary international law which are binding to all states, i.e., renunciation of war as an
instrument of national policy, the principle of sovereign immunity, a person’s right to life,
liberty and due process, and pacta sunt servanda, among others.
Per jurisprudence, international customs and general principles of law recognized by
civilized nations form part of the law of the land.
Generally accepted principles of international law form part of Philippine laws even if
they do not derive from treaty obligations of the Philippines.
Generally accepted principles of international law, as referred to in the Constitution,
include customary international law. Customary international law is one of the primary
sources of international law under Article 38 of the Statute of International Court of
Justice.
Customary International law consists of acts which by repetition of States of similar
international acts for a number of years, occur out of a sense of obligation, and taken by
a significant number of States.
Thus, customary international law requires the concurrence of two elements: (1) the
established, widespread, and consistent practice on the part of the States; and (2) a
psychological element known as opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law requiring it.
2. Treaties become part of the law of the land through transformation pursuant to Article
VII, Section 21 of the Constitution…Thus, treaties or conventional international law must
go through a process prescribed by the Constitution for it to be transformed into
municipal law that can be applied to domestic conflicts.
Relationship with domestic law
While a treaty ratified by the President is binding upon the Philippines in the international plane,
it would need the concurrence of the legislature before it can be considered valid and effective
in the Philippine domestic jurisdiction.
Prior to and even without the concurrence, the treaty, once ratified (by the President) is valid
and binding upon the Philippines in the international plane. But in order to take effect in the
Philippine domestic plane, it would have to first undergo legislative concurrence as required
under the Constitution.
1. The president cannot unilaterally withdraw from a treaty if subsequent legislation affirms
and implements it.
2. A treaty cannot amend a statute.
3. A statute enjoys primacy over a treaty.
4. A statute is passed by both the House of Representatives and Senate, and is ultimately
signed into law by the president. In contrast, a treaty is negotiated by the president, and
legislative participation is limited to Senate concurrence. Thus, there is greater
participation by the sovereign’s democratically elected representatives in the enactment
of statutes.
5. General rule: The president can withdraw from a treaty as a matter of policy in keeping
with our legal system if a treaty is unconstitutional or contrary to provisions of an existing
prior statute.
6. Exception: The president may not unilaterally withdraw from a treaty: (a) when the
Senate conditionally concurs, such that it requires concurrence also to withdraw, or (b)
when the withdrawal itself will be contrary to a statute, or to a legislative authority to
negotiate and enter into a treaty, or an existing law which implements a treaty.
