Jenelyn D.

Casim – Chapter 1: The Nature of International Law

 
What is International Law?
The traditional definition of international law is that “it is a body of rules and principles of action
which are binding upon civilized states in their relations to one another.”1
Since the international community is evolving, the Restatement (Third) of Foreign Relations
Law of the United States, which U.S. courts generally consider as the most authoritative work on
the subject, defines international law as 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.”2
Scope of International Law
New subject matters are being added, new subjects of international law are being recognized,
non-Western states are flooding into the community of nations, political and social principles are
changing, international organizations are assuming new roles.3
Is International Law a law?
Some dissenters would say that international law is not a law since there exists no international
legislative body or an international executive. Neither is there a central authority that can make
judgments binding on states. But it is a law because it consists of binding rules accepted by the
community. There is a general respect for law because of the possible consequences of defiance
either to oneself or to the larger society.4
Considered as law in practice and the sanctions for failing to comply includes:5
1. Force of public opinion
2. Self help
3. Intervention of third parties
4. Sanctions of international organizations
5. War (last resort)
Basis of International Law
Command Theory - law consists of commands originating from a sovereign and backed up by
threats of sanction if disobeyed. The reality is that nations see international law not as commands
but as principles for free and orderly interaction.6
Consensual (Positivist) Theory - international law derives its binding force from the consent of
states. Treaties are an expression of consent. Likewise, custom, as voluntary adherence to
common practices, is seen as expression of consent. In reality, however, there are many binding
rules which do not derive from consent.7

                                                            
1
 Bernas, J. (2009), Introduction to Public International Law. Quezon City, Philippines: Rex Printing Company, Inc. 
2
 Ibid. 
3
 Ibid. 
4
 Ibid. 
5
 Sarmiento, R (2016), Public International Law Reviewer. Quezon City, Philippines: Rex Printing Company, Inc. 
6
 Bernas, J. (2009), Introduction to Public International Law. Quezon City, Philippines: Rex Printing Company, Inc. 
7
 Ibid 
Jenelyn D. Casim – Chapter 1: The Nature of International Law
 
Natural law theory - law is derived by reason from the nature of man. International law is said
to be an application of natural reason to the nature of the state person. Although the theory finds
little support now, much of customary law and what are regarded as generally accepted
principles of law are in fact an expression of what traditionally was called natural law.8
Grotius or Eclectic Theory – a compromise between the natural and positivist theories and
considers International Law as binding because it is good and right and because it is agreed upon
by the states.9
Distinction between Public International Law and Private International Law
PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW
Disputes are resolved through international Recourse is with municipal tribunals through
modes of settlement, like negotiations and local and administrative and judicial
arbitrations, reprisals and even war processes
Derived from such sources as international
Derived from the statutes and laws of the
customs, international conventions and the
lawmaking authority of each state
general principles of law
Applies to relations of states inter se and other Regulates relations of individuals whether of
international persons the same nationality or not
Infractions are attached directly to the state
Entails only individual responsibility
and not to its nationals

                                                            
8
 Ibid 
9
 Duka, C. (2017), Public International Law Simplified. . Quezon City, Philippines: Rex Printing Company, Inc. 
Jenelyn D. Casim – Chapter 2: The Sources of International Law
 
Classification of Sources
Formal Sources - can refer to the various processes by which rules come into existence. Thus,
for instance, legislation is a formal source of law. So are treaty making and judicial decision
making as well as the practice of states.10
Material Sources - are not concerned with how rules come into existence but rather with the
substance and content of the obligation. They identify what the obligations are.11
Primary Sources of International Law
1. Treaties and Conventions
Treaties and conventions are legally binding contracts between states. These are the rules of
conduct of states in dealing with each other.12
Whether or not treaties override custom depends on the intention of the parties. If the treaty is
intended to be declaratory of customary law, it may be seen as evidence of customary law.13
2. International Customs
Custom or customary international law means a general and consistent practice of states
followed by them from a sense of legal obligation. The initial factor for determining the
existence of custom is the actual behavior of states (usus). This includes several elements:
duration, consistency, and generality of the practice of states.14
3. General Principles of Law
These are the general principles of law recognized by civilized states, recognized by or common
to the world’s major legal systems. This has reference not to principles of international law but to
principles of municipal law common to the legal systems of the world. They may, in a sense, be
said to belong to no particular system of law but are evidence rather of the fundamental unity of
law. Most of these principles, however, have either become part of customary law or have been
incorporated into conventional international law.15 Examples: prescription, estoppel, res judicata,
pacta sunt servanda.16
Secondary Sources of International Law
1. Teachings of Highly Qualified Publicists
In many cases of first impression, the only authorities that can be cited are writers. The extent to
which they are referred to depends on the tradition of the court or of individual judges. Publicists
are institutions white write on international law.17

                                                            
10
 Bernas, J. (2009), Introduction to Public International Law. Quezon City, Philippines: Rex Printing Company, Inc. 
11
 Ibid. 
12
 Duka, C. (2017), Public International Law Simplified. Quezon City, Philippines: Rex Printing Company, Inc. 
13
 Bernas, J. (2009), Introduction to Public International Law. Quezon City, Philippines: Rex Printing Company, Inc. 
14
 Ibid. 
15
 Ibid. 
16
 Cruz, I. (1996), International Law Reviewer. Quezon City, Philippines: Central Lawbook Publishing Co., Inc. 
17
 Bernas, J. (2009), Introduction to Public International Law. Quezon City, Philippines: Rex Printing Company, Inc. 
Jenelyn D. Casim – Chapter 2: The Sources of International Law
 
2. Decisions of the Courts
Article 38 of the Statute directs the Court to apply judicial decisions as subsidiary means for the
determination of the rules of law. But this is made subject to Article 59 which says that the
decisions of the court have no binding force except between the parties and in respect of that
particular case. Hence, such decisions do not constitute stare decisis. However, the decisions of
the ICJ are not only regarded as highly persuasive in international law circles; they have also
contributed to the formulation of principles that have become international law.18
3. Equity
It would seem to be an important principle of equity that where two parties have assumed an
identical or a reciprocal obligation, one party which is engaged in a continuing nonperformance
of that obligation should not be permitted to take advantage of a similar nonperformance of that
obligation by the other party.19
Soft Law vs Hard Law
Soft law refers to rules or quasi-legal instruments which do not have any legally binding force of
traditional law. It is traditionally associated with International Law because it cannot be strictly
enforced in the local jurisdiction.20 Hard law, on the other hand, refers to actual binding legal
instruments and laws. It gives states and international persons actual binding responsibilities and
rights.21
Terminologies
Opinio Juris – the belief that a certain form of behavior is obligatory, is what makes practice an
international rule.
Jus Cogens – refers to norms that command peremptory authority, superseding conflicting
treaties and customs. Jus cogens norms are considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified only by general international norms of
equivalent authority. These are the norms accepted and recognized by the international
community of states as a whole as a norm.
Erga Omens – obligations of a state towards the international community as a whole; the legal
interest of a state towards the international community as a whole.

                                                            
18
 Ibid. 
19
 Ibid. 
20
 Duka, C. (2017), Public International Law Simplified. Quezon City, Philippines: Rex Printing Company, Inc. 
21
 Ibid 
Jeff P. Baron – Chapter 4: International Law and Municipal Law
 

DUALISM VS WHEN THERE IS CONFLICT BETWEEN INTERNATIONAL

MONISM LAW AND DOMESTIC LAW, WHICH IS TO PREVAIL?
DUALISM OR - International law and Municipal law are essentially different from
PLURALIST each other
THEORY

Difference as to source:
ML – product of local custom or of legislation
IL – product of treaties and customs grown among states

Difference as regards the relations they regulate:

ML – regulates relations between individual persons under the states
IL – regulates relations between nations

Difference as regards their substance:

ML – law of the sovereign over individuals
IL – law between sovereign states

- For a dualist, when international law and municipal law conflict,

municipal law must prevail. The dualists are positivists with a strong
emphasis on state sovereignty.
MONISTIC THEORY - international law and domestic law belong to only one system of
OR MONISM law

Two monist theories:

1. municipal law subsumes and is superior to international law
2. Kelsen* – international law is superior to domestic law. The
superiority of IL is seen as flowing form a deep suspicion of local
sovereigns and from the conviction that international law can imbue
the domestic order with a sense of moral purpose .
Jeff P. Baron – Chapter 4: International Law and Municipal Law
 
*Hans Kelsen
- author of 1980 Austrian Constitution
- published Pure Theory of Law. His interest in international law was
in reaction largely to the Kellogg-Briand Pact in 1929 and his
negative reaction to the vast idealism he saw represented in its pages,
along with the lack of recognition for the illicit actions of belligerent
states. His interest also focused on international war crimes which he
would redouble his efforts.
- supported by Dean Roscoe Pound
-theory of self-limitation of the state – a state as a sovereign power,
by its limits that it imposes on itself, becomes a rule-of-law state
MUNICIPAL LAW IN Two prevailing provisions in treaties which recognize dualism:
INTERNATIONAL
LAW 1. Article 27 of the Vienna Convention or the Law of Treaties: “A
party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.”
2. Article 13 of Declaration of Rights and Duties of States adopted
by International Law Commission in 1949: “Every state has the duty
to carry out in good faith its obligations arising from treaties and
other sources of international law, and it may not invoke provisions
in its constitution or its laws as an excuse for failure to perform this
duty.”

Dualist tradition: blocks domestic law from entry into the

international arena. Thus, a state which has violated a provision of
international law cannot justify itself by recourse to its domestic law.

- A state which has entered into an international agreement must

modify its laws to make it conform to the agreement.

- Even in Dualism, the two systems are not completely separated.

Article 38 recognizes the common teachings of domestic law as part
on international law.
Barcelona Traction Case: If the court were to decide the case in
disregard of the relevant institutions of municipal law, it would
without justification, invite serious legal difficulties. It would lose
touch with reality. It is to rules generally accepted by municipal
systems, and not to the municipal laws of a particular State, that
international law refers.
Jeff P. Baron – Chapter 4: International Law and Municipal Law
 

- Once a court has arrived at the conclusion that it is necessary to

apply the municipal law of the particular country, there seems to be
no doubt that is must seek to apply it as it would be applied in that
country.
INTERNATIONAL - Dualism also rules when it comes to entry in international law into
LAW IN DOMESTIC the domestic sphere. International law, unless it is made part of the
LAW domestic system, has no role in the settlement of domestic conflicts.

-Dualists: how does IL becomes part of DL?

1. Doctrine of Transformation – based on strict dualist approach. It
must be expressly and specifically transformed into domestic law
through the appropriate constitutional machinery such as an act of
Congress or Parliament. Treaties do not become part of the law of a
state unless it is consented to by the State.
2. Doctrine of Incorporation – Blackstone: whenever any question
arises which is properly the object of its jurisdiction, the law of
nations is here adopted in its full extent by the common law, and it is
held to be part of the law of the land.

Philippines: Treaties as international law becomes part of the law of

the land when concurred in by the Senate in accordance with Article
VII, Section 21 of the Constitution which sets down the mechanism
for transforming a treaty into binding municipal law. (Dualist theory
and adopts incorporation theory making international law part of
domestic law). Therefore, IL can be used by Philippine courts to
settle domestic disputes in much the same way that they would use
the CC or RPC and other laws passed by the Congress.
The principle of incorporation applies only to customary law and to
treaties which have become part of customary law.
CONFLICT Which will rule? It will depend on whether the case goes to a
BETWEEN domestic court or to an international tribunal. It is an established
INTERNATIONAL principle that, before an international tribunal, a state may not plead
LAW AND its own law as an excuse for failure to comply with international law.
DOMESTIC LAW: “Every state has the duty to carry out in good faith its obligations
INTERNATIONAL arising from treaties and other sources of international law, and it
RULE may not invoke provisions in its constitutions or its laws as an
excuse for failure to perform this duty.”

Exception: Article 46 of Vienna Convention – in cases where

Jeff P. Baron – Chapter 4: International Law and Municipal Law
 
constitutional violation was manifested and concerned a rule of its
internal law of fundamental importance. If the treaty that is declared
unconstitutional, however, does not come under the exception, the
treaty can be ignored domestically but only at the risk of
international repercussions before an international court.
CONFLICT The situation is different when the conflict comes before a domestic
BETWEEN court. Domestic courts are bound to apply the local laws.
INTERNATIONAL
LAW AND This conflict arises only between a state’s constitution and an
DOMESTIC LAW: international law. If treaty in unconstitutional, it would not be valid
MUNICIPAL LAW and operative as domestic law. However, it does not mean that a
RULE treaty loses its character as international law.

Example cases:
1. GATT treaty in Tanada vs Angara (issue on economic nationalism
in the Constitution) – constitution does not encourage unlimited
entry of foreign goods, services and investments into the country, it
also does not prohibit them either.
2. Manila Prince Hotel vs GSIS: Article XII, Sec 10 was mandatory
and executory. (different conclusion from GATT treaty case)
Jade Ann L. Dulin – The Concept of Jus Cogens in the Vienna
Convention on the Law of Treaties by Dean Merlin Magallona
 

The law on treaties is found in the 1969 Vienna Convention on the Law of Treaties. It entered
into force on January 1980.

-Treaties can assume various names. They can be conventions, pacts, covenants or charters.
-They represent the most deliberate form of commitment through which government cooperate
with one another
-The generic term is International Agreement

The Vienna Convention defines treaty as “ an international agreement concluded between states
in written form and governed by international law, whether embodied in a single instrument or in
2 or more related instruments and whatever its particular designation”

-The two characteristic that should be remembered are:

1) It is a binding obligation
2) It is governed by International Law

-For a treaty to have a full and binding effect, the signatory of a treaty must have a full treaty
making power

INVALIDITY OF TREATIES
The usual ground for invalidation of contract can also invalidate a treaty:
1. Error of fact or situation
2. Fraud
3. Corruption of representative of a state
4. Corruption of a state by the threat or use of force

Moreover, a violation of jus cogens invalidates a treaty.

Treaties conflicting with preemptory norm of general international law (jus cogens)
A treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general
international law. For the purposes of the present Convention, a preemptory norm of general
international law 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 modified only by a
subsequent norm of a general international law having the same character.

What are the rules considered as violation of jus cogens?

-a treaty contemplating an unlawful use of force contrary to the provisions of the charter
-a treaty contemplating the performance of any other act criminal under international law
-a treaty contemplating or conniving towards the commission of acts such as trade in laves,
piracy or genocide
-racial discrimination

Under Jus Cogens is Obligations Erga Omnes

Jade Ann L. Dulin – The Concept of Jus Cogens in the Vienna
Convention on the Law of Treaties by Dean Merlin Magallona
 
Under the international law or reprisals, the general rule is that the directly injured state is
entitled to act against the violation of an international obligation of another state.

Obligations erga omnes are concerned with the enforceability of norms of international law, the
violation of which is deemed to be an offense not only against the state directly affected by the
breach, but also to all the members of the community.
Michael R. Tomada (Kuroda vs. Jalandoni)
 

Facts
Kuroda is the Commanding General of the Japanese Imperial Forces in the Philippines. He was
charged before a military commission convened by the Chief of Staff of the AFP, for committing
brutal atrocities and other high crimes against non-combatant civilians, as well as prisoners,
which is a violation of the laws and customs of war. Herein petitioner argued that the EO No. 68
which establishes a National War Crimes Office is illegal since the Philippines is not a signatory
nor adherent to the Hague Convention on Rules and Regulations covering land warfare. He also
argued that the US Attorneys Hussey and Port who participates in the prosecution of the charges,
were not authorized by the SC to practice law in the Philippines, which is a diminution of our
personality as an independent State.

Issue/s
1. WON EO No. 68 is unconstitutional.
2. WON the two US Attorneys participation in the proceedings is unlawful.

Held
First Issue: EO No. 68 is valid and constitutional. The constitution provides that “The
Philippines renounces war as an instrument of national policy and adopts the generally accepted
principle of international law as part of the nation.” Those guilty of war crimes are held
accountable therefor, in accordance with the generally accepted principles of International Law,
including the Hague Convention, the Geneva Convention, and International Jurisprudence. EO
No. 68 is in conformity with the general principle of International Law, and that of the
Constitution. Even though the Philippines is not a signatory of the Hague Convention and
Geneva Convention, the rules and regulations of the two convention s form part and are wholly
based on the generally accepted principles of International Law. These rules were accepted by
the two belligerent nations (the US and Japan) who were signatories thereof. Our Constitution
has been deliberately general and extensive in its scope, and is not confined to the recognition of
the rule and principle of international law, where the Philippines may have been or shall be a
signatory. Furthermore, the crimes charged against the petitioner were allegedly committed
while the Philippines was under the sovereignty of the US. This rights and obligations were not
erased by our assumption of full sovereignty. The change of form of government from
commonwealth to Republic does not affect the prosecution of these charges.

Second Issue: The Military Commission is a special military tribunal governed by special law,
and not by the Rules of Court which govern ordinary civil courts. EO No. 68 does not require
that the counsel appearing before the said commission must be attorneys qualified to practice law
in accordance with the Rules of Court.
Michael R. Tomada (Co Kim Cham vs. Valdez Tan Keh)
 

Facts
Petitioner prays that the respondent Judge be ordered to continue the civil case proceedings,
initiated under the regime of Republic of the Philippines, established during the Japanese
Military Occupation. Herein respondent Judge refused to take cognizance and continue the
proceedings on the ground that Gen. MacArthur issued a proclamation in 1944 which had an
effect of invalidating and nullifying all judicial proceedings and judgments of the courts of the
Philippines. He further contended that the government established during the Japanese
occupation is not a de facto government.

Issue/s
1. WON the judicial acts and proceedings of the court existing under the Philippine
Executive Commission, were good and valid, even after the liberation or reoccupation of
the Philippines by the US and Filipino Forces.
2. WON the proclamation issued by Gen MacArthur has invalidated all judgment and
judicial acts of the said courts.
3. WON the commonwealth courts may continue those proceedings pending in the said
courts if such proceedings were not invalidated by the proclamation.

Held
First Issue: It is a legal truism in political and international law that all acts and proceeding of
the legislative, executive, and judicial department of a de facto government are good and valid.
There are several kinds of de facto government, First, de facto gov’t in legal sense, the gov’t that
gets possession and control of, or usurps by force, or by voice of majority, the rightful legal gov’t
and maintains itself against the will of the latter. Second, established and maintained by military
forces who invade and occupy the territory of the enemy in the course of war, and which is
denominated a gov’t of paramount force. Third, Established as an independent gov’t by the
inhabitants of a country who rise in insurrection against the parent State.

In view of the foregoing, it is evident that the Philippine Executive Commission was a civil gov’t
established by the military forces of occupation, and therefore a de facto gov’t of the second
kind. The judicial acts and proceedings of the courts of justice which are not of political
complexion, were good and valid and by virtue of the well-known principle of postliminy in
international law, remained good and valid even after the liberation or reoccupation of the
Philippines by the American and Filipino forces.

Second Issue: The mere conception or thought of the possibility that the titular sovereign or his
representatives who reoccupies a territory occupied by an enemy, may set aside or annul all
judicial acts or proceedings of the tribunal which the belligerent occupant had the right and duty
to establish in order to insure public safety and order during military occupation, would be
sufficient to paralyze the social life of the country or occupied territory, for it would have to be
expected that litigants would not willingly submit their litigation to courts whose judgments or
decisions may afterwards be annulled. It is therefore evident that the proclamation which
declares that “ all laws and regulations, and processes of any other gov’t in the Philippines other
than the commonwealth are null and void”, haw not invalidated the judicial acts and proceedings
which are not a political complexion, and the said judicial acts and proceedings were good and
Michael R. Tomada (Co Kim Cham vs. Valdez Tan Keh)
 
valid before, and now good and valid after reoccupation of the liberation forces of the US and
Philippines.

Third Issue: The present courts as the same courts which had been functioning during the
Japanese regime therefore can continue the proceedings pending therein prior to the restoration
of the commonwealth of the Philippines. It is obvious that the present courts have jurisdiction to
continue final judgment, the proceedings not of political complexion pending therein at the time
of the restoration of the commonwealth gov’t.
Michael R. Tomada (Mejoff vs. Director of Prisons)
 

Facts
Petitioner is an alien of Russian descent who was brought by the Japanese Forces as a secret
operatives during the Japanese regime. Upon liberation, he was arrested by the US Army as a
Japanese spy. He was ordered to be deported, but was held into custody since the petitioner does
not have travel documents, and no Russian vessel granted admission of the petitioner for lack of
authority.

Issue
1. WON an alien who entered the country in violation of its immigration laws may be
detained for as long as the gov’t is unable to deport him

Held
Foreign nationals, not enemy against whom no charge has been made other than that their
permission to stay has expired, may not indefinitely be kept in detention. The protection against
deprivation of liberty without due process of law and except for crimes committed against the
laws of the land is not limited to Philippine citizens but extends to all residents, except enemy
aliens, regardless of nationality. The petitioner's entry into the Philippines was not unlawful; he
was brought by the armed and belligerent forces of a de facto government whose decrees were
law during the occupation. Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts
the generally accepted principles of international law as part of the law of Nation." The SC
adopted the reasoning and conclusions in Staniszewski vs. Watkins since the Philippine law on
immigration was patterned after or copied from the American law and practice. Although not
binding upon this Court as a precedent, the case aforecited affords a happy solution to the
quandry in which the parties here finds themselves, solution which we think is sensible, sound
and compatible with law and the Constitution.
Carelle Mae N. Jadap (Baer vs. Tizon)
 
FACTS:
Respondent Edgardo Gener, as plaintiff, filed a complaint for injunction with the Court of First Instance
of Bataan against petitioner, Donald Baer, Commander of the United States Naval Base in
Olongapo.. He alleged that he was engaged in the business of logging and that the American Naval Base
authorities stopped his logging operations.. He prayed for a writ of preliminary injunction restraining petitioner
from interfering with his logging operations..
A restraining order was issued by respondent Judge. Counsel for petitioner, upon instructions of the
American Ambassador to the Philippines, entered their appearance for the purpose of contesting the jurisdiction
of respondent Judge on the ground that the suit was one against a foreign sovereign without its consent.

ISSUE:
Whether the contention of the petitioner that the respondent judge acquires no jurisdiction on the ground
that the suit was one against a foreign sovereign without its consent.

HELD:
YES. The contention of the petitioner is tenable. The writ of certiorari prayed for is granted, nullifying and
setting aside the writ of preliminary injunction. The invocation of the doctrine of immunity from suit of a foreign
state without its consent is appropriate. In the case of Coleman v. Tennesse it was explicitly declared:" It
is well settled that a foreign army, permitted to march through a friendly country or to be stationed in
it, by permission of its government or sovereign, is exempt from the civil and criminal jurisdiction of the
place. "In the case of Raquiza v. Bradford it was held that” Accuracy demands the clarification that after
the conclusion of the Philippine-American Military Bases Agreement, the treaty provisions should control on such
matter, the assumption being that there was a manifestation of the submission to jurisdiction on the part of the
foreign power whenever appropriate.
This is not only a case of a citizen filing a suit against his own Government without the latter's consent but
it is of a citizen filing an action against a foreign government without said government's consent, which renders
more obvious the lack of jurisdiction of the courts of his country.
In the case of Parreno v. Mc Granery the court ruled that: "It is a widely accepted principle
of international law, which is made a part of the law of the land (Article II, Section 3of the
Constitution), that a foreign state may not be brought to suit before the courts of another state or its
own courts without its consent." The doctrine of state immunity is not limited to cases which would
result in a pecuniary charge against the sovereign or would require the doing of an affirmative ac t by it.
Prevention of a sovereign from doing an affirmative act pertaining directly and immediately to
the most important public function of any government - the defense of the state - is equally as untenable as
requiring it to do an affirmative act. That such an appraisal is not opposed to the interpretation of the relevant
treaty provision by our government is made clear in the aforesaid manifestation and memorandum as
Amicus curiae, wherein it joined petitioner for the grant of the remedy prayed for. There should be no
Carelle Mae N. Jadap (Baer vs. Tizon)
 
misinterpretation of the scope of the decision reached by this Court. Petitioner, as the Commander of the
United States Naval Base in Olongapo, does not possess diplomatic.
Carelle Mae N. Jadap (Tanada vs. Angara)
 
Facts:

On April 15, 1994, the Philippine Government represented by its Secretary of the Department of
Trade and Industry signed the Final Act binding the Philippine Government to submit to its
respective competent authorities the WTO (World Trade Organization) Agreements to seek
approval for such. On December 14, 1994, Resolution No. 97 was adopted by the Philippine
Senate to ratify the WTO Agreement.
This is a petition assailing the constitutionality of the WTO agreement as it violates Sec 19,
Article II, providing for the development of a self reliant and independent national economy, and
Sections 10 and 12, Article XII, providing for the “Filipino first” policy.

Issue:

Whether or not the Resolution No. 97 ratifying the WTO Agreement is unconstitutional

Ruling:

The Supreme Court ruled the Resolution No. 97 is not unconstitutional. While the constitution
mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it
recognizes the need for business exchange with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino interests only against foreign competition and trade
practices that are unfair. In other words, the Constitution did not intend to pursue an isolationalist
policy. Furthermore, the constitutional policy of a “self-reliant and independent national
economy” does not necessarily rule out the entry of foreign investments, goods and services. It
contemplates neither “economic seclusion” nor “mendicancy in the international community.”
The Senate, after deliberation and voting, gave its consent to the WTO Agreement thereby
making it “a part of the law of the land”. The Supreme Court gave due respect to an equal
department in government. It presumes its actions as regular and done in good faith unless there
is convincing proof and persuasive agreements to the contrary. As a result, the ratification of the
WTO Agreement limits or restricts the absoluteness of sovereignty. A treaty engagement is not a
mere obligation but creates a legally binding obligation on the parties. A state which has
contracted valid international obligations is bound to make its legislations such modifications as
may be necessary to ensure the fulfillment of the obligations undertaken.
Carelle Mae N. Jadap (Lim vs. Executive Secretary)
 
Facts:

Beginning January of year 2002, personnel from the armed forces of the United States of
America started arriving in Mindanao to take part, in conjunction with the Philippine military, in
“Balikatan 02-1.” They are a simulation of joint military maneuvers pursuant to the Mutual
Defense Treaty a bilateral defense agreement entered into by the Philippines and the United
States in 1951. Its aim is to enhance the strategic and technological capabilities of our armed
forces through joint training with its American counterparts; the “Balikatan” is the largest such
training exercise directly supporting the MDT’s objectives. It is this treaty to which the VFA
adverts and the obligations thereunder which it seeks to reaffirm.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for
certiorari and prohibition, attacking the constitutionality of the joint exercise.

Issue:

Whether “Balikatan 02-1” activities covered by the Visiting Forces Agreement?

Ruling:

To resolve this, it is necessary to refer to the VFA itself. The VFA permits United States
personnel to engage, on an impermanent basis, in “activities,” the exact meaning of which was
left undefined. The sole encumbrance placed on its definition is couched in the negative, in that
United States personnel must “abstain from any activity inconsistent with the spirit of this
agreement, and in particular, from any political activity.

The Vienna Convention on the Law of Treaties, Articles 31 and 32 contains provisos governing
interpretations of international agreements. It clearly provides that the cardinal rule of
interpretation must involve an examination of the text, which is presumed to verbalize the
parties’ intentions. The Convention likewise dictates what may be used as aids to deduce the
meaning of terms, which it refers to as the context of the treaty, as well as other elements may be
taken into account alongside the aforesaid context.

It appeared farfetched that the ambiguity surrounding the meaning of the word ’activities’ arose
from accident. It was deliberately made that way to give both parties a certain leeway in
negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes
other than military. As conceived, the joint exercises may include training on new techniques of
patrol and surveillance to protect the nation’s marine resources, sea search-and-rescue operations
to assist vessels in distress, disaster relief operations, civic action projects such as the building of
school houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that .’Balikatan 02-1,” a “mutual anti- terrorism advising, assisting and training
exercise,” falls under the umbrella of sanctioned or allowable activities in the context of the
agreement.
Carelle Mae N. Jadap - Guide Questions
 
Guide Questions:
Is international law- law?
Traditional view: That branch of public law which regulates the relations of States and of other
entities which have been granted international personality. Modern view: The law that deals with
the conduct of States and international organizations, their relations with each other and, in
certain circumstances, their relations with persons, natural or juridical

What are the basis of International law?

Command theory. In the view of John Austin, a renowned legal philosopher, law consists of
commands originating from a sovereign and backed up by threats of sanction if disobeyed. In
this view, international law is not law because it does not come from a command of a sovereign.
Neither treaties nor custom come from a command of a sovereign. This theory, however, has
generally been discredited. The reality is that nations see international law not as commands but
as principles for free and orderly interaction.
Consensual theory. Under this theory, international law derives its binding force from the
consent of states. Treaties are an expression of consent. Likewise, custom, as voluntary
adherence to common practices, is seen as expression of consent.5 In reality, however, there are
many binding rules which do not derive from consent.
Natural law theory. The natural law theory posits that law is derived by reason from the nature of
man International law is said to be an application of natural reason to the nature of the state-
person. Although the theory finds little support now, much of customary law and what are
regarded as generally accepted principles of law are in fact an expression of what traditionally
was called natural law. Some dissenters, however, see no objective basis for international law.
They see international law as a combination of politics, morality and self-interest hidden under
the smokescreen of legal language.
In the ultimate analysis, however, the best answer is pragmatic. Fundamentally, there is a general
respect for law and also there is concern about the consequences of defiance either to oneself or
to the larger society. International law is law because it is seen as such by states and other
subjects of international law.

What is meant by “jus cogens”?

Jus Cogens is a customary international law which has the status of a peremptory 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.
It is a mandatory norm and stands on a higher category than a jus dispositivum norm which
States can set aside or modify by agreement.
Examples:
The prohibition against the use of force under the UN Chater [Nicaragua Case]
Carelle Mae N. Jadap - Guide Questions
 
Law on genocide
Principle of self-determination
Principle of racial non-discrimination
Crimes against humanity
Prohibition against slavery and slave trade
Piracy [Brownlie; Magallona]
[Reference: UP Bar Reviewer 2012: Political Law]

What is meant by “erga omnes”?

An obligation erga omnes is one that binds the international community as a whole. [Articles on
State Responsibility, Art. 48] It is demandable of any State. Such obligations exist because of the
importance of the rights involved, so States have a legal interest in their protection.

Obligations erga omnes derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including protection from slavery and racial
discrimination. Some of the corresponding rights of protection have entered into the body of
general international law others are conferred by international instruments of a universal or
quasi-universal character [Barcelona Traction Case, 1970 ICJ 3; Reservations to the Genocide
Convention, 1951 ICJ 23]

Another example of an obligation erga omnes is the obligation to prevent torture. In the Hissene
Habre Case, the ICJ rules that “States parties to the Convention [agains Torture] have a common
interest to ensure, in view of their shared values, that acts of torture are prevented and that, if
they occur, their authors do not enjoy impunity. The obligations of a State party to conduct a
preliminary inquiry into the facts and to submit the case to its competent authorities for
prosecution are triggered by the presence of the alleged offender in its territory, regardless of the
nationality of the offender or the victims, or of the place where the alleged offences occurred. All
the other States parties have a common interest in compliance with these obligations by the State
in whose territory the alleged offender is present.”[Hissene Habre Case, 2012 ICJ 422]

What is meant by “opinion juris”?

Generally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
The classical formulation in international law sees those customary rules accepted as binding
result from the combination [of] two elements: the established, widespread, and consistent
practice on the part of States; and a psychological element known as the 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.
Carelle Mae N. Jadap - Guide Questions
 

What are the sources of International Law?

Article 38 of the ICJ Statute provides the following sources of international law:
International conventions, whether general or particular, establishing rules expressly recognized
by the contesting states;
International custom, as evidence of a general practice accepted as law;
The general principles of law recognized by civilized nations;
Judicial decisions and the teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law. [ICJ Statute, Art. 38]
Treaties

Definition: 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 [Vienna Convention, Art. 2(1)(a)]

Custom

Customary international law means “a general and consistent practice of States followed by them
from a sense of legal obligation.” [Bernas; Restatement]

Elements of Custom:
State practice – actual behavior of States. It has three underlying requirements:
Uniformity – consistency of the practice (involves continuity and repetition of practice)
Duration – no particular duration for the emergence of custom is required
Generality – general acceptance of States of the practice [Brownlie]
Opinio juris – States must behave in a way that they show belief that the practice is rendered
obligatory by the rule of law requiring it. [Nicaragua v. US, 1986 ICJ 14; North Sea Continental
Shelf, 1969 ICJ 3]
States are generally bound by custom even if they did not consent to it, unless they are
considered “persistent objectors.” Such States must, by clear evidence of objection, show that
they contract out of custom in the process of its formulation. [Brownlie]

Evidence used for state practice:

Diplomatic correspondence
Policy statements
Press releases
Opinions of official legal advisers
Carelle Mae N. Jadap - Guide Questions
 
Official manuals on legal decisions (executive decisions and practices; government comments on
drafts by the ILC)
International and national judicial decisions
Recitals in treaties and international instruments
Practice of international organs [Harris]
Examples of customary norms:
International humanitarian law and the laws of war (as embodied in the Rome Statute of the
International Criminal Court and the 1949 Geneva Conventions)
International human rights law (ICCPR, ICESCR, UDHR)
Sovereign immunity [Sanders v. Veridiano, G.R. No. L-46930, June 10, 1988]
Regional Custom

Custom may exist at a regional level, as recognized in the Asylum Case.The Party which relies
on a custom of this kind must prove that this custom is established in such a manner that it has
become binding on the other Party, and that it is in accordance with a constant and uniform usage
practised by the States in question, and that this usage is the expression of a right appertaining to
the State granting asylum and a duty incumbent on the territorial State. [Asylum Case, 1950 ICJ
260]

Conflict between Treaty and Custom

If a treaty comes later than a particular custom, then the treaty should prevail. The principle
of pacta sunt servanda should be followed. But if the treaty is in conflict with a customary rule
that is also a jus cogens norm, then custom would prevail. Treaties that are in conflict with a jus
cogensnorm are void. [VCLT, Art. 53]

General Principles of Law

These are the general principles of law recognized by or common to the world’s major legal
systems. This source makes reference to municipal law, and is an evidence of the fundamental
unity of law. [Bernas]

Examples of general principles of law: estoppels, res judicata, res inter alios acta, prescription,
certain rules on evidence

Judicial decisions

This source of international law is merely highly persuasive and not binding on States, because
the principle of stare decisis has no application in international law. [Bernas; VCLT, art.
59] Decisions of courts, either international or national, including arbitration tribunals, may be
used.[Brownlie]
Carelle Mae N. Jadap - Guide Questions
 
Writings of Publicists

The term “publicists” includes institutions which write on international law, as well as authors or
writers with known expertise on the subject matter. Their writings are considered subsidiary
sources only. [Bernas; Brownlie]

Distinguish “soft law” from “hard law”?

Hard Law Vs Soft Law (Public International Law)
International lawyers typically distinguish binding rules of international law ("hard law") from
non-binding norms, principles, and practices that influence state behavior -- ("soft law").
Hard law
Hard law refers to a norm or rule of conduct accepted and recognized by the international
community of states as a whole, as a source of law binding on them. Hard law produces
obligations which when breached gives rise to international responsibility and, consequently, to
reparation.
Soft law
Soft law has no binding force and pertains to a statement or declaration of principle with moral
force on the conduct of state but no normative character and without intent to create enforceable
obligations.
"Soft law" does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice. It is, however, an expression
of non-binding norms, principles, and practices that influence state behavior.
Examples:
a) UN Declaration of Human Rights - applied by the Supreme Court in Government of
Hongkong Special Administrative Region v. Olalia, Mejoff v. Director of Prisons, Mijares v.
Rañada and Shangri-la International Hotel Management, Ltd. v. Developers Group of
Companies, Inc.

How do we distinguish Private international law from public international law?

Public international law governs the relationships between and among states and also their
relations with international organizations and individual persons. Private international law is
really domestic law which deals with cases where foreign law intrudes in the domestic sphere
where there are questions of the applicability of foreign law or the role of foreign courts

Is there collective responsibility for a breach of international law?

It is a key principle of international law that states—as unitary legal persons—can be held
responsible for their acts. When a state breaches an international obligation , it has a duty to
make reparation for any injury it causes, either by making restitution, paying compensation, or
Carelle Mae N. Jadap - Guide Questions
 
providing some alternative form of satisfaction, such as an official apology. Moreover, the
International Court of Justice has consistently asserted that it may order state payment of
reparations when a breach of international law has occurred. Reparations have often been levied
in the aftermath of aggressive war: France was required to pay reparation sin 1871; Germany
was required to pay reparations after World War I; Germany’s Eastern, Soviet-occupied zone
paid reparations to the USSR after World War II; and today Iraq continues to pay reparations to
Kuwait for the First Gulf War. In2001 the International Law Commission produced draft articles
codifying these principles of state responsibility. Current international law thus attributes holistic
responsibility to states for their acts. On this model, the state as an organized agent is held
responsible independently of its members. Of course, for the state to discharge its responsibility,
liability for reparations will normally have to be distributed to members, but this distribution is
performed in an independent second step. The key feature of the corporate model is that since
responsibility accrues to the collective, citizens may face demands to do their part in discharging
responsibility merely because they belong to the body politic.

What is the extent of a State’s freedom of action?

States prevent their national courts from deciding disputes which relate to the internal affairs of
another State, the other two being immunity and non-justiciability. It is an avoidance technique
that is directly related to a State's obligation to respect the independence and equality of other
States by not requiring them to submit to adjudication in a national court or to settlement of their
disputes without their consent. Every sovereign state is bound to respect the independence of
every other state, and the courts of one country will not sit in judgment on the acts of the
government of another, done within its territory, redress of grievances by reason of such
acts must be obtained through the means open to be availed of by sovereign powers as
between themselves. (Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923
(1964), citing Underhill v. Hernandez, 168 U.S. 250, 18 S. Ct. 83, 42 L. Ed. 456 (1897)).

Distinguish between the Monist and Dualist theorist of International law.

Dualism v. Monism

Under the dualist theory, in cases where there is a conflict between international law and national
law, the latter must prevail. Dualists place a strong emphasis on state sovereignty.

Under the monistic theory of Kelsen, it is international law that must prevail because it “can
imbue the domestic order with a sense of moral purpose.” [Bernas, Introduction to Public
International Law]

Other views:
Monist-Naturalist View: PIL is superior to municipal law, with both systems being a part of the
higher system of natural law
Coordinationist View: PIL and municipal law operate in different spheres, but municipal law
must comply with PIL
Carelle Mae N. Jadap - Guide Questions
 
International Law in Domestic Law

There are two theories which provide how international law becomes part of domestic law:
Transformation – for international law to be part of domestic law, it must be expressly and
specifically transformed into domestic law through appropriate constitutional machineries (e.g.
Congress)
Incorporation – international law is deemed held to be part of the law of the land [Bernas]
The Philippines follows both theories of transformation (for treaties which require the
concurrence of the Senate) and incorporation (for customary international law and treaties which
form part of custom). [Bernas]

Domestic Law in International Law

A State may not invoke the provisions of its domestic law to justify violations of international
law. [Vienna Convention on the Law of Treaties, Art. 27]

Application of International Law and National Law

Where a claim is filed in an international court, then it is international law that must be applied
by the tribunal. But if the claim is filed in a domestic court, it is bound to apply the local
law. [Bernas]

In the Philippines, should a conflict arise between an international agreement and the
Constitution, the treaty would not be valid and operative as domestic law. This is explicitly
mentioned in Art. VIII, Sec. 5(2)(a) of the Constitution, where the Supreme Court is given the
power to declare a treaty unconstitutional. [Bernas]

While an international tribunal would not have the power to reverse the nullification of a treaty
in domestic law, it can take appropriate action in favor of an aggrieved state. [Bernas]

Ditinguish between the doctrine of incorporation and the doctrine of transformation.

Transformation and Incorporation

Transformation: requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. Treaties become part of the law of the land
through transformation pursuant to Article VII, Section 21 of the Constitution which provides
that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate." 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. [Pharmaceutical v. DOH, G.R. No.
173034, October 9, 2007]

Incorporation: applies when, by mere constitutional declaration, international law is deemed to

have the force of domestic law. This can be seen from Art. II, Sec. 2 of the 1987 Constitution:
Carelle Mae N. Jadap - Guide Questions
 
“The Philippines xxx adopts the generally accepted principles of international law as part of the
law of the land.” [Pharmaceutical v. DOH, G.R. No. 173034, October 9, 2007]
In case of conflict between municipal law international law, which should prevail?
Application of International Law and National Law

Where a claim is filed in an international court, then it is international law that must be applied
by the tribunal. But if the claim is filed in a domestic court, it is bound to apply the local
law. [Bernas]

In the Philippines, should a conflict arise between an international agreement and the
Constitution, the treaty would not be valid and operative as domestic law. This is explicitly
mentioned in Art. VIII, Sec. 5(2)(a) of the Constitution, where the Supreme Court is given the
power to declare a treaty unconstitutional. [Bernas]

While an international tribunal would not have the power to reverse the nullification of a treaty
in domestic law, it can take appropriate action in favor of an aggrieved state. [Bernas]

What are the Calvo and Drago doctrines?

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 Drago Doctrine refers to a principle asserted by Argentine Minister of Foreign Affairs Luis
María Drago in December 29, 1902. The doctrine held that international law did not authorize
European powers to use armed intervention to force American republics to pay public debts.

What is the Doctrine of Sovereign Equality of States?

Doctrine of Equality of States
One of the fundamental rights of a state is equality with all other states. This right is inherent in t
he concept of a state as a
subject of Internationallaw and is given general recognition by longstanding state practice. Precis
e definition of theprinciple of equality of states is difficult, however, since many factors affect its
application in any particular situation. Thus, itis best to differentiate between legal equality, that
is, the concept of state equality as it applies to the legal relations thatstates maintain with each ot
her, and political equality, which reflects the relative distribution of economic and military powe
rbetween states.
In its legal effects the principle of state equality has several important consequences. Probably th
e most importantmanifestation of the doctrine is the right of every state to have one vote in matte
Carelle Mae N. Jadap - Guide Questions
 
rs requiring the consent of states. A naturalconsequence of this is that the vote of every state, no
matter how large or small the state, counts the same as the individualvotes of all other states. Leg
al equality also means that no state can claim jurisdiction over other states, and as corollary, astat
e is independent of the political will of all other states. 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 s
tate. Likewise, equality ofstates 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 aga
inst the realities imposedby differences in political power. Political equality is in some sense a fic
tion, because in political terms few states areequals. More powerful states can establish arrangem
ents that less powerful states assent to informally, even though under astrict legal regime, they w
ould not be bound by the agreement.The differences between legal and political equality are also
recognized in the organization of the United Nations.

What is the Doctrine of Non-Intervention?

The non-intervention rule is a principle of international law that restricts the ability of outside
nations to interfere with the internal affairs of another nation. At its core, the principle is a
corollary to the right of territorial sovereignty possessed by each nation.

What is the Principle of Self-Determination of People?

The right of a people to self-determination has acquired a status beyond ‘convention’ and is
considered a general principle of international law.
The people’s right to self-determination should not be understood as extending to a unilateral
right of secession. A distinction should be made between the right of internal and external self-
determination.
a. internal self-determination – a people’s pursuit of its political, economic, social and cultural
development within the framework of an existing state.

b. external self-determination (which potentially takes the form of the assertion of aright to
unilateral secession) arises in only the most extreme of cases and, even then, under carefully
defined circumstances.
Positive International Law does not recognize the right of national groups, as such, to separate
themselves from the State of which they form part by the simple expression of a wish. The grant
or refusal of the right to a portion of its population of determining its own political fate by
plebiscite or by some other method, is, exclusively, an attribute of the sovereignty of every State.
[Province of North Cotabato v. GRP Peace Panel, G.R. No. 183591 and G.R. No. 183752 and
G.R. No. 183893 and G.R. No. 183962, October 14, 2008]