Sources of International Law and its Application to the Philippine Legal System

By Chester B. Cabalza

Blogger's Notes:
Commentary of an Academic 
(Copyright @ 2010 by Chester B Cabalza. All Rights Reserved).

Provisions of Article 38(1) of the Statute of International Court of Justice

The said article provides as follows:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

(a)international conventions, whether general or particular, establishing rules expressly recognized by the contesting state;

(b)international custom, as evidence of a general practice accepted as law;

(c)the general principles of law recognized by civilized nations;

(d)subject to the provisions of Article 59, 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.

Provisions of Section 102 of the ALI Restatement (Third) of US Foreign Relations Law

The Restatement (Third) of the Foreign Relations Law of the United States is a text complied and published by the American Law Institute, an NGO. The Restatement are designed to provide a comprehensive overview of the law in a particular area-in the ALI’s own words, to “tell judges and lawyers what the law is.” The ALI itself is not a law-making body, however, and although the Restatement are widely respected, hence they have now legal independent legal effect.

Considerably, Restatement’s list of sources of international law can be compared to in Article 38(1) of the Statute of the International Court of Justice.

Section 102 of the ALI Restatement (Third) of US Foreign Relations Law, provides that:

(1) A rule of international law is one that has been accepted as such by the international community of states

(a) In the form of customary law;

(b) By international agreement; or

(c) By derivation from general principles common to the major legal systems of the world.

(2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.

(3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when agreements are intended for adherence by states generally and are in fact widely accepted.
(4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.

Rules of International Law in the Philippine Legal System

International law is founded largely upon the principles of reciprocity, comity, independence and equality of States. These principles were adopted as part of the law of the land. In the Philippines, the Doctrine of Incorporation prevails where 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. Such is recognized in Sec. 2, Art. II, 1987 Constitution, in gist that it “adopts the generally accepted principles of international law as part as law of the land.” The Philippines is a dualist state that subscribes to the Dualist theory where domestic and international law are independent of each other, and as they regulate different subject matters. International law regulates relations of sovereign states while municipal law governs the internal affairs of the state. Thus, no conflict can ever arise between international and municipal law because they are mutually exclusive.

In case of conflict between the international law (IL) and municipal law, IL prevails before an international tribunal, is a state may not plead its own law as an excuse for failure to comply with international law. The state must modify its laws to ensure fulfillment of its obligations under the treaty, unless the constitutional violation is manifest and concerns a rule of internal law of fundamental importance.

On the other hand, municipal rule prevails when the conflict comes before a domestic court, domestic courts are bound to apply the local law. Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law. It does not, however, lose its character as international law. For instance, in the case of Pimentel v. Executive Secretary, it was held that the power to ratify is vested in the President as chief architect of foreign policies subject to the concurrence of the Senate. Under the law, treaty or international agreements, and in this case, the Rome of Statute, must be concurred in by at least two-thirds (2/3) of all the members of the Senate. In another case, Gonzales v. Hechanova, herein the executive secretary entered two separate contracts for the purchase of imported rice from the governments of Vietnam and Burma,. However, the court held that said executive agreements are unlawful, on the ground that the function of the executive secretary is to enforce laws by Congress, thus he has no power to authorize the importation of rice in question.