The

Dynamics of
the Interaction
between
International Law
and Domestic Law
Atty. Romel Regalado Bagares
Executive Director

The Tectonic Shift in Thinking Since the

Post-WWII Years influencing the
development of international law
The importance of the Individual as a Subject and
Actor of International Law, to whom duties and
obligations are owed by States
O The State no longer has the monopoly of lawmaking powers in the international realm though
it remains the primary actor in many respects
O The rise of other actors in international legal
processes: international organizations, civil society
groups
O Later on: an expanded view of what constitutes the
international community (Draft Articles of State
Responsibility Art. 48: international community as
a whole is more inclusive)
O

Understanding the contemporary

international legal order: compensatory
constitutionalization
O highlights various aspects and elements of

micro- and macro-constitutionalization in

international law to compensate for deconstitutionalization in the domestic
level in some countries.

although there is no international

constitution in a formal sense there exists
fundamental norms in the international
legal order that fulfill constitutional
functions.

Elements of an international constitutional

order
OAn embryonic constitutional order where the

different national, regional and functional

(sectoral) regimes form the building blocks of
the international community (international
polity) that is underpinned by a core value
system common to all communities and
embedded in a variety of legal structures for its
enforcement.

The end of absolute sovereignty and the Lotus

era?
OIt assumes an increasingly integrated international

legal order in which the exercise of control over the

political decision-making process would only be
possible in a system where national and postnational constitutional orders complemented each
other.

Concrete manifestations: International

Criminal Law
OPurely consent-based system is giving way to

something else (UN SC resolutions under Chap. VII

of the UN Charter has binding, mandatory
character, cf. Prosecutor v. Tadic, 2 Oct. 1995,
Interlocutory Appeal on Jurisdiction )

OWhen pertaining to issues of international peace

and security

Core Value System: Norms

OJus cogens norms : peremptory norms which admit of

no derogation. These are binding on all members of

the international community, whether or not they
have expressed consent to its application. These are
not ordinary customary norms; these are of a superior
nature over other customary norms.

OEx: prohibition on genocide, slavery, crimes against

humanity, war crimes, aggression, torture, racial

discrimination

OCustomary norms binding on all states, which may also

be embodied in various international instruments

Core Value System: Obligations

OObligatio erga omnes omnium (customary)

- Obligations binding on the international

community, deriving from the jus cogens
nature of the norms in question (obiter dictum,
Barcelona Traction case, ICJ)
OObligatio erga omnes partes (conventional or

treaty obligations)

Sources of state obligations to human

rights
OInternational law as a normative system

- regulates state relations with other states, and

other international persons (including individuals)
Ogoverns state conduct affecting the international
community
OTreaties (pacta sunt servanda)
OCustomary norms binding upon all members of
the international community: opinio juris and
state practice
O General Principles of law
O Subsidiary Means of establishing means of
international law
O domestic iterations of international law

How International/Regional Legal Norms become

part of Domestic Law
O Through the Incorporation Clause of the 1987 Charter
O Through Transformation by way of the Treaty Clause of

the 1987 Charter

OThrough Constitutionalization by way of specific

provisions in the 1987 Charter and statutory

remedies
OThrough the Rule-Making Power of the Supreme Court
(Writ of Habeas Data, Writ of Amparo)
OThrough Jurisprudence

I. The Incorporation Clause

A. 1935, 1973 and 1987 Charters embody
essentially the same incorporation clause
Art. II, Section 2. The Philippines renounces war
as an instrument of national 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,
cooperation, and amity with all nations.

Kuroda case (1949)

The Incorporation Clause precisely allows
the full force and effect of norms in
Philippine territory, whether treaty or
customary , without need of domestic
legislation, as was held in Kuroda.
In this case, even if, as the defense lawyers
argued, the Philippines had not acceded to
Hague Convention on Land Warfare, the
Chief Justice ruled that these principles in
fact formed part of the law of our nation,
yes, even if the Philippines was not a
signatory to the said Convention.

Kuroda Ruling:
Such rules and principles [ Hague Convention
on Rules and Regulations covering Land Warfare]
therefore, form part of the law of our nation even
if the Philippines was not a signatory to the
conventions embodying them, for our
Constitution has been deliberately general and
extensive in its scope and is not confined to the
recognition of rules and principles of
international law as contained in treaties to
which our government may have been or shall be
signatory.

Problem Areas: Monist v. Dualist

O Generally accepted principles of

international law (Incorporation Clause,

1987 Charter) versus general principles of
international law (Art. 38, ICJ Charter)

O What is the content of generally accepted

principles of international law? (where not

provided by the Constitution itself, it is left to
the discretion of courts through case law)

II. Treaty Clause of the 1987 Constitution

as a means of transforming international

law principle into national law.
Art. VII Section 21. 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.
- Pimentel v. Secretary (it is the President who
ratifies through his signature)

Some Major Philippine Treaty Commitments

OConvention on the Elimination of All Forms of Racial Discrimination (CERD)
O International Covenant on Economic, Social and Cultural Rights (ICESCR)
O1951 Convention Relating to the Status of Refugees
O Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW)

O International Covenant on Civil and Political Rights (ICCPR) and its

Optional Protocol

OGeneva Conventions of 1949 and Additional Protocol II to the Geneva

Conventions

OConvention against Enforced Disappearance (CAED)

O Convention against Torture (CAT)

Problem Areas: Monist v. Dualist

O Does the application of the Treaty Clause make

provisions of the Treaty in question selfexecutory? (jurisprudential issue)

O If the Treaty itself requires the passing of an

implementing legislation, then its provisions,

while in theory already part of Philippine law, will
have doubtful application if no such legislation is
passed (Geneva Conventions, as first raised in
Kuroda)
OExamples : IHL Act, Enforced Disappearance Law,
Intellectual Property Law

III. Constitutionalization of international

legal norms
OGuarantees full respect for human rights.

(CONST. art. II, sec. 11)

ORecognizes the vital role of communication &

information in nation-building. (CONST. art. II,

sec. 24)

OThe privacy of communication &

correspondence shall be inviolable except

upon lawful order of the court, or when
public safety or order requires otherwise, as
prescribed by law. Any evidence obtained in
violation of thisshall be inadmissible for
any purpose in any proceeding. (CONST. art.
III, sec. 3)

OThe right of the people to be secure in their

persons, houses, papers, & effects against

unreasonable searches & seizures of
whatever nature & for any purpose shall be
inviolable, & no search warrant shall issue
except upon probable cause to be
determined personally by the judge, &
particularly describing the place to be
searched & the persons or things to be
seized. (art. III, sec. 2)

ORight to due process (CONST. art. III, sec. 2)

OFreedom of speech (CONST. art. III, sec. 4)
OFreedom of religion (CONST. art. III, sec. 5)
OFreedom of association (CONST. art. III, sec. 8)

OThe State shall provide the policy

environment for the full development of

Filipino capability & the emergence of
communication structures suitable to the
needs & aspirations of the nation & the
balanced flow of information into, out of, &
across the country, in accordance with a
policy that respects the freedom of speech
& of the press. (CONST. art. XVI, sec. 10)

Statutory Protections: Civil Code

Article 26. Every person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons. The following and
similar acts, though they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family relations of
another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly
station in life, place of birth, physical defect, or other personal condition.
Article 27. Any person suffering material or moral loss because a public
servant or employee refuses or neglects, without just cause, to perform his
official duty may file an action for damages and other relief against the
latter, without prejudice to any disciplinary administrative action that may
be taken.

OArticle 32. Any public officer or employee, or any

private individual, who directly or indirectly

obstructs, defeats, violates or in any manner
impedes or impairs any of the following rights and
liberties of another person shall be liable to the
latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a
periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without
due process of law;

(7) The right to a just compensation when private

property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house,
papers, and effects against unreasonable searches
and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and
correspondence;
(12) The right to become a member of associations
or societies for purposes not contrary to law;
(13) The right to take part in a peaceable assembly
to petition the Government for redress of grievances;
(14) The right to be a free from involuntary servitude
in any form;

Data Privacy Act

ONot apply to information necessary in order to

carry out the functions of public authority

Owhich includes the processing of personal
data by the central monetary authority &
law enforcement & regulatory agencies
Ofor the performance of their
constitutionally & statutorily mandated
functions.
[RA 10173, sec. 4(e)]

ONational Privacy Commission (NPC)

Oto administer & implement the Data Privacy

Act
Oto monitor & ensure compliance of the country
with international standards set for data
protection (RA 10173, sec. 7)
Oattached to the Office of the President but will
be under the Department of Information &
Communications Technology once DICT
created (RA 10173, sec. 42)

IV. The Supreme Courts Rule-Making

Powers
OUnder Administrative Order 25-2007: Extra-

judicial Killings refer to the killings of political

activists and media practitioner

OEstablishment of special courts to try

extrajudicial killings (later on scrapped)

OAO 25-2007 is sanctioned by Article VIII, sec.

5(6) of the 1987 Constitution: Promulgate

rules concerning the protection and
enforcement of constitutional rights.

The Summit on Extrajudicial Killings and

Enforced Disappearances (2007)
CJ Puno:
the Judiciary shall refer initially through its
Committee on the Revision of the Rules of
Court, the recommendations calling for the
crafting of new rules to enhance the
protection of our peoples constitutional
rights.
- Writs of Amparo and Habeas Data

Judicial Borrowing: Latin American

Experience
OIt is significant that, from the point of view of

the constitutionalization of international/

regional legal norms, that the Philippine
Supreme Court borrowed heavily from its
Latin American counterparts in drafting the
new Rules on the Writs of Amparo and
Habeas Data

Amparo: as a mode of relief

ONot criminal in nature and will not determine the

criminal guilt of the respondent. But amparo court

may refer the case to DOJ for prosecution
O Does not suspend the filing of criminal, civil or
administrative actions
Oif a criminal action has begun, the writ may be
available by motion in criminal case
OIf criminal or civil case is filed after amparo
proceedings begin, the case shall be consolidated
before amparo court

The Rule on Habeas Data (Jan. 2008)

The Writ of Habeas Data

OSECTION 1. Habeas Data.The writ of habeas data

is a remedy available to any person whose right to

privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public
official or employee, or of a private individual or
entity engaged in the gathering, collecting or storing
of data or information regarding the person, family,
home and correspondence of the aggrieved party.

V. Jurisprudence
O Manalo Brothers v. Defense Secretary (case

no. 1 for Writ of Amparo): SC referenced the

Convention against Enforced Disappearance
as if it were already operative, even if at that
time, the Philippines was not yet a party to
it.
OGiven in the context of discussions on right to
be secure in ones person as a key element
of the right to life.
O Limited to the Writ of Amparo as a remedy,
but it is an opening.

V. Jurisprudence
O Republic v. Sandiganbayan):Nevertheless,

even during the interregnum (Freedom

Constitution) the Filipino people continued
to enjoy, under the Covenant (ICCPR) and
the Declaration (UDHR), almost the same
rights found in the Bill of Rights of the 1973
Constitution. (Italics supplied)

Concluding Remarks
OConstitutionalized international legal norms are

obviously of a higher-order nature from the point

of view of domestic law;
OConstitutionalized international legal norms may
also be iterated through statutory enactments
at the same time;
O An international legal norm may simultaneously
exist in the domestic legal order as a customary
norm through the Incorporation Clause, as a
constitutionalized norm in the Bill of Rights
and other provisions of the Charter, and finally
as part of a statutory enactment.

Concluding Remarks
OBut the hierarchy remains : constitutionalized

international legal norms are of a higher value

than statutory ones.
OLegislative work on international law has a double
aspect : through the Treaty Clause ( Senate )and
through the statutory enactment of treaty
obligations, as appropriate (Congress as a
whole).
OThe question of the constitutionality of an
international treaty or norm must be looked at
from the internal, and not external, standpoint