Readings. General Principle of International Law

UNIT Ill
LEGAL BASIS
OF
INTERNATIONAL
RELATIONS
Lesson 7
LESS
ON OBJECTIVES
After this lesson, you should be able to:
understand the basic principles of international law; determine
international customs and obligations; and
3.
Definition of Terms
International law - laws that regulate relations of states and
international persons
National law - laws that regulate individuals among themselves
or within the state
Treaty - an international agreement conducted between states, in
written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments,
whatever its particular designation (Art. 2 (1) (a), Vienna
Convention on Law of Treaties)
understand the full concept of treaties.

'NTRODUCTION
International Law and National Law

International law regulates relations of states and international persons. It is
derived from treaties, international customs, and general principles of law. If CODflict
arises, the same is resolved through state to state transactions.
59
On the other hand, national law regulates relations of individuals among
themselves or within the state. It consists of statutory enactments, executive orders,
and judicial pronouncements. If there is conflict, the same is redressed through local,
administrative, and judicial processes.
How does intemational law become a part of the law of the state?
There are two doctrines of adoption: doctrine of incorporation and doctrine
of transformation.
The doctrine of incorporation is mainly based under Section 2, Art. Il of the
1987 Constitution which states that:
"x x x the Philippines adopts thegenerally acceptedprinciples ofInternational Law as part of t
law ofthe land."
Thus, the generally accepted principles of international law are considered
as part of a state's national laws by reason of its membership in the family of nations.
The doctrine of transformation requires the enactment by the legislative body
of such international law principles as are sought to be part of municipal law
(Coquia & Defensor-Santiago, 2005). This doctrine must be related to the power of the
President to enter into treaties wherein rule and principles embodied in said treaties would
be transformed into Philippine law and would become valid and effective upon the
concurrence of two-thirds (2/3) of all the members of the Senate (Sec. 21, Art. Vll,
1987 Constitution).
International Conventions and International Customs
International conventions are international agreements concluded between
States, in written form, and governed by International Law, embodied either in a
single instrument or in two or more related instruments and whatever its particular
designation (Art. 2 (1) (a), Vienna Convention on Law of Treaties).
Examples of bilateral treaties entered into by the Philippines are the Mutual
Defense Treaty with USA, signed on 30 August 1959; Visiting Forces Agreement
with USA, signed on 10 February 1998; and RP-US Extradition Treaty with USA,
signed on 13 November 1995.
At times, the Philippines also enter into multilateral treaties or conventions with
two or more states. An example of which is the 1982 United Nations Convention on
the Law of the Sea (UNCLOS). Other examples are the International Convention on
Civil and Political Rights, Rome Statute of the International Criminal Court, and
Convention on the Prevention and Punishment of the Crime of Genocide.
International customs, also known as customary law, consists of rules of law
derived from the consistent conduct of states, acting out of the belief that the law
required them to act that way (Aust, 2010). However, for a custom to be deemed as
an international custom, these two elements must exist: state practice and
opiniojuris sive necessitates ("opinion of law or necessitf).
State practice states that there must be evidence of substantial uniformity Of
practice by a substantial number of states (Aust. 2010). In a leading case rendered
by the International Court ofJustice, the case of North Sea Continental Shelf Cases
(Germany v. Denmark, ICJ, 1969), what is required is that:
-xxxw within the period in question, short though it might be, State practice,
including that ofStates whose interests are specifically affected, should have
been both extensive and virtually uniform.-
Proof of state practice are as follows: administrative acts, legislation, court
decisions, historical records, and international stage activities.
Opinio juris sive necessitates states the belief that the given practice is rendered
obligatory by the existence of a rule requiring it. Consequently, the states
concerned must feel that they are conforming to what amounts to a legal Obligation
(North Sea Continental Shelf Cases) (Germany v. Denmark, ICJ, 1969).
Kinds of international customs are: regional custom and speciat or local custom.
Regional custom is a practice among states within a particular area of the world
which can be sufficiently well-established and accepted as law that is binding among
he states of that region but not elsewhere (Epps & Graham, 2011). A special custom,
n the other hand, is a long-continued practice between two states, accepted by them as
egulating their relations that form the basis of mutual rights and obligations (Right of
assage Case (Portugal v. India), ICJ, 1960).
Jus Cogens and Obligations Erga Omnes

Jus cogens (Compelling Law) occupy another category of international
customs as these refer to norms that command peremptory authority,
superseding conflicting treaties and customs which can neither be derogated nor
modified, except by a norm or similar character (Vinuya v. Executive Secretary,
G.R. No. 162230, April 28, 2010). Jus cogens enjoy a higher rank in the
international hierarchy than treaty law and even ordinary customary rules
(Prosecutor v. Furundzia, International Criminal Tribunal for the former
Yugoslavia, 1998). Examples of this are norms on torture, racial discrimination,
genocide, and piracy.
Obligations erga omnes ("towards all") refers to an obligation under
general international law that a state owes in any given case to the international
community, in view of its common values and its concern for compliance, so
that a breach of that obligation enables all States to take action; or an obligati0n
under a multilateral treaty that a state party to the treaty owes in any given case
to all the other state parties to the same treaty, in view of their common values
and concern for compliance, so that a breach of that obligation enables to all
these states to take action (Vinuya v. Executive Secretary, G.R. No. 162230,
April 28, 2010).
Examples of this are prohibitions of acts of aggression, on genocide, and on
the protection of basic human rights.
Treaties
A treaty is an international agreement conducted between states, in written
form and governed by international law, whether embodied in a single
instrument or in two or more related instruments, whatever its particular
designation (Art. 2 (1) (a), Vienna Convention on Law of Treaties).
Steps in treaty making involves (1) negotiation; (2) signing of the treaty by
the representatives; (3) exchange of ratification instruments; (4) ratification of
the treaty by the constitutional organs of the respective states; and (5)
registration with and publication by the Secretariat of the United Nations (UN).
A state is obliged to refrain from acts which would defeat the object
and Purpose of a treaty when it has signed the treaty or has exchanged
instruments onstituting the treaty subject to ratification, acceptance of
approval, until it shall have made its intention clear not to become a party
to the treaty; or it has expressed its consent to be bound by the treaty,
pending the entry into force of the treaty and provided that such entry into
force is not unduly delayed (Art. 18, Vienna Convention on Law of
Treaties).
In connection thereto, the power of the President to ratify a treaty is Well-
entrenched in the 1987 Constitution. However, no treaty or international
agreement shall be valid and effective unless concurred in by at least 2/3 of all
the members of the Senate (Sec. 21, Art. Vll, 1987 Constitution).
unit Ill LEGAL BASIS OF INTERNATIONAL RELATIONS

63
Basic Principles Concerning Treaties
Pacta tertiis nec nocent nec prosunt - "A treaty binds the parties and only
the parties"
Pacta sunt servanda - "Agreements must be kept" - Every treaty in force is
binding upon the parties to it and must be performed by them in good faith
(Art. 26, Vienna Convention on Law of Treaties).
Rebuc sic stantibus - "Things standing thus" - A fundamental change of
circumstances which has occurred with regard to those existing at the time of
the conclusion of a treaty, and which was not foreseen by the parties, may be
invoked as a ground for terminating or withdrawing from the treaty if the
existence for those circumstances constituted an essential basis of the consent of
the parties to be bound by the treaty and the effect of the change is radically to
transform the extent of the obligations still to be performed under the treaty
(Par. 1, Art. 62, Vienna Convention on Law of Treaties).
CREATE AND COLLABORATE.
As a group, perform the following:
1. On the Internet, research the case of The Province of North Cotabato et.al.
v. the Government of the Republic of the Philippines Peace Panel on Ancestral
Domain, C.R. No. 183591, October 14, 2008.
2. Make a summary of the case.
3. Discuss in class the validity of the Memorandum of Agreement on the
Ancestral Domain (MOA-AD) between the Republic of the Philippines and the
MILF.
4. Also, on the Internet, research on the cases of Simbolon v. Romulo, G.R. No.
175888, February 11, 2009 and Saguisag v. Executive Secretary, G.R. No.
212426, January 12, 2016.
5. Compare and summarize both cases.
6. Discuss in class the validity of the Visiting Forces Agreement (VFA) and the
Enhanced Defense Cooperation Agreement (EDCA) based on the two cases.
Executive Agreement and Concordat

An executive agreement is an agreement concluded by the President based on
authority granted by Congress or based on the inherent authority granted to him/her
by the Constitution. This is distinguished from a treaty as the latter pertains to a
covenant concluded by the President with the advice and consent of the Senate. No
treaty or international agreement shall be valid and effective unless concurred in by
at least two-thirds of all the members of the Senate
(Sec. 21, Article VII, 1987 Constitution). Both treaties and executive
agreements have binding effect upon states as long as the negotiating
functionaries have remained within their powers (USAFFE Veterans
Association Inc. v. Treasurer of the Philippines, C.R. No. L-10500, June 30,
1959).
A concordat is a treaty or agreement between the Pope and a state or
government that deals with religious matters as well as the recognition and
privileges of the Holy See in other states (Sarmiento, 2014).
COLLABORATE.
As a group, perform the following:
I. Research for an executive agreement entered into by a Philippine president.
2. Analyze the contents of this executive agreement.
3. Research on news excerpts leading to the signing of this executive agreement.
Put the news excerpt in the space provided.
4. Explain in class your observations on the possible reasons why the said
executive agreement was signed.
SUMMARY
International law is a law that governs states and theirinternational

persons. It is based not only on international covenants but also on international
customs. By adoption, principles of international law become part of Philippine
law.
Treaties are international covenants that can be entered into by Philippine
Presidents and subject to ratification by the Senate. Its formation entails a

number of steps, and its implementation causes positive and negative effects on
the country.

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UNIT Ill

understand the full concept of treaties.

International Law and National Law

Thus, the generally accepted principles of international law are considered

Jus Cogens and Obligations Erga Omnes

unit Ill LEGAL BASIS OF INTERNATIONAL RELATIONS

CREATE AND COLLABORATE.

As a group, perform the following:

Executive Agreement and Concordat

International law is a law that governs states and theirinternational

Presidents and subject to ratification by the Senate. Its formation entails a

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