[TRANS] STATUTORY CONSTRUCTION BY MNQT:>MEOW

CHAPTER 1 only individual responsibility. is usually collective in the

INTERNATIONAL LAW sense that it attached
● A body of rules and principles of action which are binding upon
directly to the state and not
civilized states in their relations with one another. its nationals.
● There are other entities besides states that are also governed
in varying degree by the laws of nations. *A principle of municipal law can become a part of international
○ Ex.: United Nations, individual (real and only subject of law, as when the principle is embodied in a treaty or convention.
international law)
● Schwarzenberger RELATION TO MUNICIPAL LAW
○ International law is the body of legal rules which apply ● States admitted to the family of nations are bound by the rules
between sovereign states and such other entities as have prescribed by it for the regulation of international intercourse.
been granted international personality. ○ Consequence of membership in the international
community.
DIVISIONS OF INTERNATIONAL LAW ● The law of nations, although not specially adopted by the
● Laws of Peace Constitution or any municipal act, is essentialy a part of the law
○ Govern the normal relations of states. of the land. Its obligation commences and runs with the
○ Those states not involved in the war continue to be existence of a nation.
regulated under the laws of peace in their relations inter se.
GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL
● Laws of War LAW
○ When war breaks out between or among some of the ● Refers to norms of general or customary international law
states, their relations cease to be regulated under the laws which are binding on all states.
of peace and come under the laws of war for the duration ● Ex.: renunciation of war as an instrument of national policy, the
of the hostilities. principle of sovereign immunity, a person’s right to life, liberty
and due process, pacta sunt servanda (agreements must be
● Laws of Neutrality kept), etc.
○ Govern the relations of those states not involved in the war ● 2 elements:
with the belligerents, those involved in the war. ○ The established, widespread, and consistent practice on
the part of States.
*when the war ends and peace is restored, the relations of all the ○ Psychological element - opinio juris sive necessitates
members of the family of nations will come again under the laws (opinion as to law or necessity). It is believed that the
of peace, until another war breaks out. practice in question is rendered obligatory by the existence
of a rule of law requiring it.
MUNICIPAL LAW ● Primary source of international law
● Private international law (conflict of laws) pertains to municipal ○ Have the character of jus rationale”
or private law of each state rather than as a part of ○ Valid through all kinds of human societies.
international law.
● Laws from different state jurisdictions that conflict with one INTERNATIONAL LAW AS PART OF THE SPHERE OF
another relating to a subject (foreign element) DOMESTIC LAW
● Foreign element - person/subject matter where there is ● Transformation method
conflict. ○ An international law can be transformed into a domestic
● Only those precepts applicable to relations of international law through a constitutional mechanism such as local
persons inter se fall within the field of international law. legislation.
○ Generally accepted rules of international law are not per se
DISTINCTIONS WITH MUNICIPAL LAW binding upon the state but must first be embodied in
● Monists legislation enacted by the lawmaking body and so
○ Believe in the oneness or unity of all law. transformed into municipal law. Only when so transformed
○ Law is essentially a command binding upon the subjects will they become binding upon the state as part of its
independently of their will, and it is ultimately the conduct of municipal law.
individuals which it regulates. ○ Ex.: Treaties
● Dualists ○ Article 7, Section 2 of the 1987 Constitution: No treaty or
○ Believe in the dichotomy of the law. international agreement shall be valid and effective unless
● Oppenheim concurred in by at least ⅔ of all the members of the senate.
○ Whereas municipal law is a law of a sovereign over those ● Incorporation method
subjected to his sway, the law of nations is a law, not ○ By mere constitutional declaration, international law is
above, but between, sovereign states and is, therefore, a deemed to have the force of domestic law.
weaker law. ○ Article 2, Section 2 of the 1987 Constitution: The
Philippines renounces war as an instrument of national
Municipal Law International Law policy, adopts the generally accepted principles of
international law as part of the law of the land, and adheres
to the policy of peace, equality, justice, freedom,
Issued by a political superior Not imposed upon but
cooperation and amidity with all nations.
for observance by those simply adopted by states as
under its authority. a common rule of action
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF
among themselves.
THE PHILIPPINES V. DUQUE
● Whether or not the resolutions of the WHA, which have not
been embodied in any local legislation, and on which the
Consists mainly of Derived not from any
questioned administrative regulations were based have
enactments from the particular legislation but from
attained the status of customary law and should they be
lawmaking authority of each sources as international
deemed incorporated as part of the law of the land.
state customs, international
○ NO. The WHA resolution are merely recommendatory and
conventions and the general
legally nonbinding. It may constitute a soft law or
principles of law.
nonbinging norms, principles and practices that influence
state behavior.
○ Respondents failed to establish that the provisions of
Regulates the relations of Applies to the relations inter pertinent WHA resolutions are customary international law
individuals among se of states and other that may be deemed part of the law of the land.
themselves or with their own international persons. ○ Legislation is necessary to transform the provisions of the
states. WHA resolutions into domestic law.
Violations are redressed Resolved through state-to- TREATY
through a local state transactions ranging ● A contract between two nations, not a legislative act.
administrative and judicial from peaceful methods like ● The Philippine constitution declares a treaty to be a law of the
processes. negotiations and arbitration land. It is to be regarded in courts of justice as equivalent to an
to the hostile arbitrament of act of the legislature, whenever it operates of itself, without the
force like reprisals and even aid of any legislative provision.
war.
PHILIP MORRIS INC V. COURT OF APPEALS
Breaches generally entail Responsibility for infractions
 ● The fact that international law has been made part of the law ■ The petitioner claimed the entitlement to practice the
of the land does not by any means imply the primacy of law profession in the Philippines without submitting to
international law over national law in the municipal sphere. the required bar examinations on the basis of the
● Under the doctrine of incorporation, rules of international law provisions of the Treaty of Academic Degree and the
are given a standing equal, not superior, to national legislation. Exercise of Professions between the Philippines and
the Spanish state.
AIR CANADA V. CIR ■ The Court ruled that: the treaty could not have been
● Article 7, Section 21 of the 1987 Constitution states that “valid intended to modify the laws and regulations governing
and effective” means that treaty provisions that define rights the admission to the practice of law in the Philippines.
and duties as well as definite prestations have effects ■ The executive department may not encroach upon the
equivalent to a statute. constitutional prerogative of the SC to promulgate rules
● We only deal here with bilateral treaty state obligations that for admission. The power is reserved only to the
are not international obligations erga omnes. We are also not Congress of the Philippines.
required to rule in this case on the effect of international ○ REPUBLIC OF INDONESIA V. VINZON
customary norms especially those with jus cogens character. ■ Recognized the principle of sovereign independence
and equality as part of the law of the land.
MIJARES V. RAÑADA ■ Used the principle to justify the recognition of the
● There is no obligatory rule derived from treaties or conventions principle of sovereign immunity which exempts the
that requires the Philippines to recognize foreign judgements, State - both our Government and foreign governments -
or allow a procedure for the enforcement thereof. from suit.
● However, generally accepted principles of international law, by ■ However, a foreign government acting in its jus imperri
virtue of incorporation clause of the constitution, form part of function cannot be held liable in a Philippine court.
the laws of the land even if they do not derive from treaty Taking jurisdiction would amount to authority over a
obligations. foreign government, and would thus violate the principle
● Foreign judgments may be enforced in the Philippines under: of sovereign independence and equality.
(i) procedural rules; or (ii) jurisprudence. The applicable
procedural rules are set out in Section 48, Rule 39 of the BASIS OF INTERNATIONAL LAW
Rules of Court, which governs the recognition and International law does not emanate from a supreme lawmaking
enforcememt of foreign judgements. authority for the regulation of those subject to its control but is, on
the contrary, voluntarily observed by an international community
CONFLICTS BETWEEN INTERNATIONAL LAW AND which does not recognize any political superior among its
MUNICIPAL LAW members.
● Section 48, Rule 39 of The Rules of Court has expressly
placed international law in the same category as the Civil What gives binding force to international law?
Code, the Insurance Act, and the Local Government Code. ● Naturalist - Samuel Pufendorf
○ Therefore, in resolving conflicts between international law ○ The basis of international law is the law of nature.
and municipal law, the apparent contradiction should be ■ A higher law or rule of human conduct independent of
reconciled and give effect, if possible, to both systems of positive enactment and even special divine revelation,
law. and binding always and everywhere in view of its
● However, if the conflict is actual and not merely apparent: intrinsic reasonableness.
○ International viewpoint ○ There is a natural and universal principle of right and
■ To sustain or uphold the supremacy of municipal law wrong, independent of any mutual intercourse or compact.
over international law could lead to international It is supposed to be discovered and recognized by every
anarchy and lawlessness, each state discarding and individual through the use of his reason and his
repudiating such parts of international law as are conscience.
inconsistent with and inimical to its national interests, ○ International law is not a law between but above states.
ambitions and policies. ● Positivist - Richard Zouche
○ As held in a dispute between Great Britain and Venezuela: ○ The binding force is derived from the agreement of
■ There could be no question that national laws must sovereign states to be bound by it.
yield to the laws of the nations if there was a conflict. ○ Not a law of subordination but of coordination.
○ In The Over the Top, the SC of the United States: ○ An acknowledgement of the law is necessary to make it
■ International law is law only in so far as we adopt it and, binding on the states it purports to govern.
like all common or statute law, it bends to the will of the ○ Any state withholding its consent can disclaim responsibility
Congress. of observance.
● Grotius
CONSTITUTION VS. TREATY ○ Father of international law
● Cases involving conflicts between the constitution of a state ○ The system of international law is based on the dictates of
and a treaty duly entered into by it with other states. right reason as well as practice of states.
○ Generally, the treaty is rejected in the local forum but is ○ Insofar as it conformed to the dictates of right reason, the
upheld by international tribunals as a demandable voluntary law might be said to blend with the natural law
obligation of signatories under the maxim pacta sunt and be indeed the expression of it.
servanda. ○ Should there be a conflict between the two, the law of
○ Provided in the Declaration of the Rights and Duties of nature was to prevail as being the fundamental law, the
States, adopted by International Law Commission: authority of which could not be contravened by the practice
■ Every State has the duty to carry out in good faith its of states.
obligations arising from treaties or other sources of
international law, and it may not invoke provisions in its SANCTIONS OF INTERNATIONAL LAW
constitution or its laws as an excuse for failure to What compels obedience to international law?
perform this duty. ● Unlike mucinipal law, which generally prescirbes specific
■ However, most constitutions contain provisions methods for its enforcement, international law is not provided
empowering the judiciary to annul treaties and the with “teeth,” as it were, to ensure a more respectful regard for
legislature to supersede them with statutes, thereby its principles.
establishing the primacy of local law over the ● The cumpolsive force of reciprocal advantage and fear of
international agreement. retaliation.
● Position of the Philippines: 1. Its observance will redound to the welfare of the whole society
○ Article 8, Section 4(2) of the 1987 Constitution authorizes of nations.
the Supreme Court to decide, among others, all cases 2. Normal habits of obedience ingrained in the nature of man as
involving the constitutionality of “any treaty, international or a social being.
executive agreement, law… 3. Respect for world opinion held by most states.
○ INCHONG V. HERNANDEZ ○ Based on the desire to project an agreeable public image in
■ A treaty is always subject to qualification or amendment order to maintain the goodwill and favorable regard of the
by a subsequent law, and the very same may never rest of the family of nations.
curtail or restrict the scope of the police power of the 4. Constant and reasonable fear.
state. ○ Violations of international law might visit upon the culprit
○ GONZALES V. HECHANOVA the retaliation of other states.
■ The Constitution authorizes the nullification of a treaty 5. Machinery of United Nations which has proved to be an
not only when it conflicts with the constitution but also effective deterrent to international disputes caused by
when it runs counter to an act of Congress. disregard of the law of nations.
○ IN RE: PETITION OF ARTURO EFREN GARCIA
■ The SC denied the application of the petitioner for OBSERVANCE VS. ENFORCEMENT
admission to the practice of law in the Philippines ● Observance
without submitting to the required bar examinations.
 ○ Essentially subjective and mainly dependent on the volition 2. This provision shall not prejudice the power of the Court to
of the entity which is supposed to be governed by the law. decide a case ex aequo et bono, if the parties agree thereto.
● Enforcement
○ Process by which such observance may be compelled, PRIMARY SOURCES OF INTERNATIONAL LAW
usually by force or at least the threat of force. ● Treaties or conventions
○ To be considered a direct source of international law, must
ENFORCEMENT OF INTERNATIONAL LAW be concluded by a sizable number of states and thus reflect
● States are able to enforce international law through the will or at least the consensus of the family of nations.
international organizations or regional groups like United ○ Article 7, Section 2 of the 1987 Constitution: No treaty
Nations and the Organizations of American States. or international agreement shall be valid and effective
○ Grieviances of the disagreeing states may be presented to unless concurred in by at least ⅔ of all the members of the
and discussed in these bodies, which may thereafter adopt senate.
such measures as mat be necessary to compel compliance ○ Not every treaty can be considered a direct source of
with international obligations or vindicate the wrong international law because it is not always concluded by the
committed. great body of states.
■ Exercised through the Security Council and the ■ Ex.: bilateral treaties (particular international law) -
International Court of Justice. binding only upon the signatories and cannot apply to
■ Special arbitral tribunals may be created by agreement the rest of the international community which had no
of the parties affected. participation in its negotiation or adoption.
○ Quarelling states may attempt to settle their differences ■ A bilateral treaty may become primary sources, of
between themselves, either through amicable methods international law, if they are of the same nature, contain
such as diplomatic talks or hostile measures like retorsions practically uniform provisions and are concluded by a
and reprisals. Where these fail, war itself may be waged as substantial number of states, albeit separately.
a last resort.
○ Violations of these laws may be punished after the war ● Customs
through such measures as the prosecution of the war ○ A practice which has grown up between states and has
criminals and the collection of reparations. come to be accepted as binding by the mere fact of
○ Rules of international law may be treated by the individual persistent usage over a long period of time. (Fenwick)
states as part of their municipal law. ○ Ex. The practice of granting immunities to foreign heads of
■ The legislature may implement such rules by states or diplomats in the territory of the local state
prescribing the norms for their observance and pursuant to what has come to be known as the principle of
providing specific penalties for their violation. exterritoriality.
■ The executive participates by, enforcing such laws. The ○ Two elements must concur:
judiciary by applying the rules of international law ex ■ Objective element - State practice - continuous
proprio vigore (of its own force) in proper cases or the repetition of the same or similar kind of acts or norms by
appropriate statutory enactments intended to implement States. It is demonstrated upon the existence of the
them. following elements: (1) generality; (2) uniformity and
consistency; and (3) duration. While opinio juris, the
FUNCTIONS OF INTERNATIONAL LAW psychological element, requires that the state practice
● Primary: To establish peace and order in the community of or norm be carried out in such a way, as to be evidence
nations and to prevent the employment of force, including war, of a belief that this practice is rendered obligatory by the
in all international relations. existence of a rule of law requiring it."
● To promote world friendship by leveling the barriers, as of ■ Subjective element - opinio juris sive necessitates
color or creed, that have so far obstructed the fostering of a (an opinion of law or necessity)
closer understanding in the family of nations. ○ Defect: Difficulty of determining when a practice can be
● To encourage and ensure greater international cooperation in considered to have hardened into custom and thus
the solution of certain common problems of a political, acquired obligatory character.
economic, cultural or humanitarian character. ○ Article 2, Section 2 of the 1987 Constitution: The
● To provide for the orderly management of the relations of Philippines renounces war as an instrument of national
states on the basis of the substantive rules they have agreed policy, adopts the generally accepted principles of
to observe as members of the international community. international law as part of the law of the land, and adheres
to the policy of peace, equality, justice, freedom,
DISTINCTIONS WITH OTHER CONCEPTS cooperation and amidity with all nations. (embodies the
● International morality or ethics incorporation method)
○ Govern the relations of states from the higher standpoint of
conscience, morality, justice and humanity. ● General principles of law.
○ International comity - rules of courtesy observed by states ○ Mostly derived from the law of nature and are observed by
in their mutual relations where violations does not most states because they are believed to be good and just.
constitute to grounds for legal claims. ○ Inclusion as a direct source is believed to be a rejection of
● International diplomacy the Positivist view.
○ Relates to the objects of national or international policy and ○ Universal in application because of the unilateral decision
the conduct of foreign affairs or international relations. of a considerable number of states to adopt and observe
○ Satow - “the application of intelligence and tact to the them in recognition of their intrinsic merit.
conduct of official relations between independent states.” ○ Among those that have been acknowledged as such are,
● International administrative law as previously noted, the renunciation of war as an
○ That body of laws and regulations, now highly developed, instrument of national policy, the principle of sovereign
created by the action of international conferences or immunity, a person's right to life, liberty and due process
commissions which regulate the relations and activities of and pacta sunt servanda. (Agreements must be kept)
national and international agencies with respect to those
material and intellectual interests which have received an SECONDARY SOURCES OF INTERNATIONAL LAW
authoritative universal recognition. ● Decisions of courts
○ Decisions of international tribunals like the International
Court of Justice and arbitration bodies and those
CHAPTER 2 promulgated by national courts are acceptable because
article 38 does not distinguish between those rendered by
ARTICLE 38 OF THE STATUTE OF THE INTERNATIONAL the two.
COURT OF JUSTICE ■ They are acceptable as long as they are a correct
1. The Court, whose function is to decide in accordance with application and interpretation of the law of nations or
international law such disputes as are submitted to it, shall “undetake to establish the true rule of international law”
apply: (Fenwick)
a. International conventions, whether general or particular, ○ The doctrine of Stare Decisis is not applicable in
establishing rules expressly recognized by the contesting international law, and so the decision of a court in one case
states; will have only persuasive value in the decision of a
b. International custom, as evidence of a general practice subsequent case.
accepted as law; ■ Article 59 of the Statute of the International Court of
c. The general principles of law recognized by civilized Justice: The decision of the Court has no binding force
nations; except between parties and in respect to that particular
d. Subject to the provisions of Article 59, judicial decisions case.
and the teachings of the most highly qualified publicists of ● Writings of publicists
the various nations, as subsidiary means for the ○ A highly qualified publicist is a scholar of public
determination of rules of law. international law, and the term usually refers to legal
scholars or "academic writers."
○ A fair and unbiased representation of international law, and
by an acknowledged authority in the field.
○ Mere credentials are not enough as the jurist may have
been motivated by national pride or interest, or error, in
interpreting a rule of international law or in supposing the
existence of a rule which does not in fact form part of the
law of nations.