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 conflict arises, the same is resolved through state-to-state transactions.

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.

Examples of treaties the Philippines have entered into and customary practices it adheres to:

Treaties
 United Nations Convention on the Law of the Sea (UNCLOS): The Philippines is a signatory to UNCLOS, which governs
maritime rights and responsibilities, including territorial waters, exclusive economic zones, and navigation rights.
 ASEAN Free Trade Area (AFTA): As a member of the Association of Southeast Asian Nations (ASEAN), the Philippines is
part of various trade agreements within the region, such as AFTA, which aims to promote economic integration among
ASEAN member states.
 Paris Agreement on Climate Change: The Philippines has ratified the Paris Agreement, committing to take action to mitigate
climate change and adapt to its impacts.

Customary Practices
 Respect for Diplomatic Immunity: The Philippines, like other nations, observes the principle of diplomatic immunity, which
grants protection to foreign diplomats from legal jurisdiction in the host country. This customary practice facilitates smooth
diplomatic relations.
 Non-interference in Internal Affairs: The principle of non-interference in the internal affairs of other states is widely observed
in international relations. The Philippines generally respects this principle and expects the same from other countries.
 Peaceful Settlement of Disputes: The Philippines supports the peaceful settlement of disputes, as outlined in the United
Nations Charter. This includes negotiation, mediation, arbitration, and adjudication, rather than resorting to force or aggression
to resolve conflicts.

HOW DOES INTERNATIONAL 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:

“xxx the Philippines adopts the generally accepted principles of International Law as part of the law of the 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. 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. VII, 1987 Constitution).

SOURCES OF INTERNATIONAL LAW

Since there is no central international body that creates public international law; it is created by several sources.

The Charter of the United Nations is the establishing document for the International Court of Justice (ICJ) as the principal judicial
organ of the UN. Article 38(1) of the Statute of the International Court of Justice lists the sources that the ICJ uses to resolve
disputes 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 states;
International conventions are treaties signed between two or more nations that act as an international agreement.

A treaty, as defined by The 1969 Vienna Convention on Law of Treaties Art. 2 (1)(a), 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.

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 constituting 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. 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. VII, 1987 Constitution).

Examples of bilateral treaties entered into by the Philippines are the Mutual Defense Treaty with USA, signed on 30 August 1999;
Visiting Force 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.

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

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. However, for a custom to be deemed as an international custom, these two
elements must exist: state practice and opinio juris sive necessitates ("opinion of law or necessity").

State practice states that there must be evidence of substantial uniformity of practice by a substantial number of states. In a
leading case rendered by the International Court of Justice, the case of North Sea Continental Shelf Cases (Germany v. Denmark, ICJ,
1969), what is required is that:

"xxx within the period in question, short though it might be, State practice, including that of States 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.

Kinds of international customs are regional customs and special 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 the states of that
region but not elsewhere. A special custom, on the other hand, is a long-continued practice between two states, accepted by them as
regulating their relations that form the basis of mutual rights and obligations.

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. Jus cogens enjoy a higher rank in the international hierarchy than treaty law and even ordinary customary rules.

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 obligation 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.

Examples of this are prohibitions of acts of aggression, on genocide, and on the protection of basic human rights.

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

 Pacta tertiis nec nocent nec prosunt – "A treaty binds the parties and only the parties”

This maxim clarifies that treaties are generally binding only on the parties that have consented to them. It means that non-
parties to a treaty are not affected by its provisions and obligations unless they subsequently consent to be bound.

 Res judicata – “A matter judged.”

It refers to the legal principle that once a matter has been finally adjudicated by a competent court, it cannot be relitigated
between the same parties. Res judicata prevents the same parties from repeatedly litigating the same issues or claims, thereby
promoting finality and judicial efficiency. In the context of international law, res judicata applies similarly. When an international tribunal
or court has issued a final judgment on a dispute between states or other international entities, the matter is considered settled, and the
parties are bound by the decision. This principle contributes to the stability of international relations by providing a mechanism for the
resolution of disputes and preventing continuous legal challenges to settled matters.

 Estoppel

Estoppel is a legal principle that prevents someone from asserting a claim or right that contradicts what they previously stated or
agreed to, especially if the other party relied on those earlier statements or actions to their detriment. In essence, estoppel prevents
individuals or entities from acting inconsistently or unfairly based on their prior conduct.

 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).

 Ex injuria jus non oritur – “Law does not arise from injustice."

This underscores the principle that illegal acts cannot create legal rights or obligations. It implies that states cannot benefit
from their own wrongful conduct and that international law seeks to rectify injustices rather than sanctioning them. For example:
Imagine there are two neighboring countries, Country A and Country B. Country A, through military force, unlawfully annexes
a portion of Country B's territory. Despite protests from Country B and the international community, Country A establishes control over
the annexed territory.
In response to this unlawful act, Country B takes diplomatic and legal measures to assert its rights and seek the return of its
territory. Eventually, the matter is brought before an international court, which rules that Country A's annexation of Country B's territory
was illegal under international law.

 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 i 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).
  Nemo dat quod non habet – “No one gives what he does not have.”

This maxim emphasizes the principle that a person cannot transfer a better title to property than they possess. In international law,
it is relevant in situations involving the transfer of territory or rights between states.

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.