SPECIAL ISSUES ON INTERNATIONAL LAW

Summer Class, PUP

Under Dean Taton

I. Review the provisions of the Philippine Constitution that relate to international law.

PREAMBLE
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just
and humane society, and establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and develop our patrimony, and secure to
ourselves and our posterity, the blessings of independence and democracy under the rule of
law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.

Article II: DECLARATION OF PRINCIPLES AND STATE POLICIES

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.

Section 11. The State values the dignity of every human person and guarantees full respect for
human rights. Section 14. The State recognizes the role of women in nation-building, & shall
ensure the fundamental equality before the law of women & men.

ARTICLE III: BILL OF RIGHTS

Section 3.
1. The privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires otherwise, as prescribed by law.
2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for
any purpose in any proceeding.

ARTICLE V: THE LEGISLATIVE DEPARTMENT

Section 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines
and, on the day of the election, is at least thirty-five years of age, able to read and write, a
registered voter, and a resident of the Philippines for not less than two years immediately
preceding the day of the election.

Article VII: EXECUTIVE

Section 2. No person may be elected President unless he is a natural born citizen of the
Philippines, a registered voter, able to read and write, at least forty years of age on the day of
the election, and a resident of the Philippines for at least ten years immediately preceding such
election.

ARTICLE XIII: SOCIAL JUSTICE AND HUMAN RIGHTS

Section 1. The Congress shall give highest priority to the enactment of measures that protect
and enhance the right of all the people to human dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power
for the common good. To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments.
Section 2. The promotion of social justice shall include the commitment to create economic
opportunities based on freedom of initiative and self-reliance.

ARTICLE XVI: GENERAL PROVISIONS

Section 1. The flag of the Philippines shall be red, white, and blue, with a sun and three stars,
as consecrated and honored by the people and recognized by law.

ARTICLE XII NATIONAL ECONOMY AND PATRIMONY

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and
other natural resources are owned by the State.

 With the exception of agricultural lands, all other natural resources shall not be
alienated.
 The exploration, development, and utilization of natural resources shall be under the
full control and supervision of the State.
 The State may directly undertake such activities, or it may enter into co-production,
joint venture, or production-sharing agreements with Filipino citizens, or corporations
or associations at least 60 per centum of whose capital is owned by such citizens.
 Such agreements may be for a period not exceeding twenty-five years, renewable for
not more than twenty-five years, and under such terms and conditions as may be
provided by law.
 In cases of water rights for irrigation, water supply, fisheries, or industrial uses other
than the development of waterpower, beneficial use may be the measure and limit of
the grant.

The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino
citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fish
workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either
technical or financial assistance for largescale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the general terms and conditions
provided by law, based on real contributions to the economic growth and general welfare of
the country.

 In such agreements, the State shall promote the development and use of local scientific
and technical resources.

The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution.
 * The recognition of the importance of the country's natural resources, not only for national
economic development, but also for its security and national defense.

* The primacy and supremacy of the principle of sovereignty and State control and supervision
over all aspects of exploration, development and utilization of the country's natural resources
is mandated in the 1st paragraph of Section 2 of Article XII.
(1) To insure their conservation for Filipino posterity;
(2) To serve as an instrument of national defense, helping prevent the extension to the country
of foreign control through peaceful economic penetration; and,
(3) To avoid making the Philippines a source of international conflicts with the consequent
danger to its internal security and independence.

II. The Nature of International Law

What is international law?
Answer:
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.

Defined 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.

What is the scope of international law?

Answer:
The topics that are covered by international law today include the regulation of space
expeditions, the division of the ocean floor, the protection of human rights, the management
of the international financial system, and the regulation of the environment. Beyond the
primary concern for the preservation of peace, it now covers all the interests of contemporary
international and even domestic life.

Is international law a law?

Answer:
The question is sometimes asked whether international law is indeed law. The basic challenge
to international law as law is the claim that there can be no law binding sovereign states.
Moreover, there exists no international legislative body. There is, of course, the General
Assembly of the United Nations; but its resolutions are generally not binding on anybody.
There is no international executive. The Security Council was intended to be that entity but
it is often effectively hamstrung by the veto power. Neither is there a central authority that
can make judgments binding on states. The International Court of Justice can bind states
only when states consent to be bound. Moreover, national officials tend to find justification
for whatever they do. Psychologically too, the allegiance to one’s sovereign state can be very
strong to the point of defying reason. When the chips are down, national policy or interest is
often preferred over international law. Enforcement of international law is a real problem for
several reasons. Frequently, there is no assured procedure of identifying violation. Even the
 powers of the UN have reference largely to lawbreaking that takes the form of an act of
aggression or threat to peace. But there are many violations of international law which are not
of this nature. Most of the time, all the UN can do is censure. For these reasons, it is said that
what is called international law is not law because it is commonly disregarded. These
objections are based on an exaggerated notion of sovereignty as embodying an individualist
regime. This, however, is not the reality. The reality is social interdependence and the
predominance of the general interest. The reality is that States are bound by many rules not
promulgated by themselves. As Henkin observes, “It is probably the case that almost all
nations observe almost all principles of international law and almost all of their obligations
almost all of the time.”

Brierly adds: “The ultimate explanation of the binding force of all law is that man, whether
he is a single individual or whether he is associated with other men in a state, is constrained,
in so far as he is a reasonable being, to believe that order and not chaos is the governing
principle of the world in which he lives.”

In the ultimate analysis, although the final enforcer is power, fundamentally, there is a general
respect for law because of the possible consequences of defiance either to oneself or to the
larger society

Give some theories about international law.

Answer:

(1) 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.
(2) 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. In reality, however, there
are many binding rules which do not derive from consent.
(3) 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.
(4) Some dissenters. However, see no objective basis for international law. They see
international law as a combinations of politics, morality and self-interest hidden under the
smokescreen of legal language.

International law is law because it is seen as such by states and other subjects of international
law
Distinguish public and private international law.
Answer:
Public international law governs the relationships between and among states and also their
relations with international organizations and individual persons. While, private international law
is really a 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.

Who is Hugo Grotius?

Answer: A Dutch, who is considered as the father of modern international law. He authored De
Jure Belli ac Pads. What he called “the law of nations” was later given the name of “international
law” by the British Philosopher Jeremy Bentham.

The following are some of the significant milestones in the development of international law:
(a) The Peace of Westphalia, which ended the Thirty Years War (1618-1648) and established
a treaty based framework for peace cooperation. (It was at this time that pacta sunt servanda
arose.)
(b) Congress of Vienna (1815), which ended the Napoleonic Wars and created a sophisticated
system of multilateral political and economic cooperation.
(c) Covenant of the League of Nations (1920) which included the Treaty of Versailles which
ended World War I.

What are the sources of international law?

Answer:
There are two sources of international law. The primary source of international law are as follows:
(1) Customs; (2) treaties; (3) international agreements; and, (4) generally recognized principles of
law. The secondary source of international law are as follows: (1) judicial decisions; and, (2)
teachings of highly qualified and recognized publicists.

What is customs or customary law?

Answer: A general and consistent practice of states followed by them from a sense of legal
obligation. This includes several elements, duration, consistency and generality of the
practice of states.

What is opinio juris?

Answer: It is a belief that a certain form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law. Even humanitarian consideration by itself does
not constitute opinio juris.

Note: Under Article 53 of the Vienna Convention on the law of Treaties, it provides that:

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention,
a peremptory 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 general international law having the same character.

What is a soft law?

Answer:
Not included among the sources is what a growing literature refers to as “soft law.” Others prefer
to call this category “non-treaty agreements.” They are international agreements not concluded as
treaties and therefore not covered by the Vienna Convention on the Law of Treaties.

Other sources of soft law are administrative rules which guide the practice of states in relation to
international organizations. These are mostly administrative procedures that are carried out with
varying degrees of consistency and uniformity that may eventually ripen into customary law or
become formalized later on in treaties. Soft law plays an important role in international relations
because often states prefer non-treaty obligations as a simpler and more flexible foundation for
their future relations.

What is a treaty?
Answer:
The Vienna Convention defines a treaty as “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.

Treaties determine the rights and duties of states just as individual rights are determined by
contracts. Their binding force comes from the voluntary decision of sovereign states to obligate
themselves to a mode of behavior. While treaties are generally binding only on the parties, the
number of the contracting parties and the generality of the acceptance of the rules created by the
treaty can have the effect of creating a universal law in much the same way that general practice
suffices to create customary law.

No particular form is prescribed. Thus, the exchange of notes between the two heads of state
was considered an international agreement.

*Two characteristics the Court found which convinced it that a binding obligation been incurred.
First, the commitment was very specific. Second, there was a clear intent to be bound.

What are the functions of treaties?

Answer: Treaties have many functions. They are sources of international law, they serve as the
charter of international organizations, they are used to transfer territory, regulate commercial
relations, settle disputes, protect human rights, guarantee investments, etc.

What are the various names of a treaty?

Answer: They can be conventions, pacts, covenants, charters, protocols, concordat, modus vivendi,
etc. The generic term that is used is international agreements.

III.
Take note of the definition of the treaty.
Ratification of the treaty.
Secretary of Foreign Affairs – Sec. Pet. Cayetano

00269 002 6542

April 2017
3. Uy vs. Estate of Vipa Fernandez, April 5, 2017
4. Domingo vs. Singson, April 5, 2017
9. Advance decisions Baclaran Marketing vs. Nieva and Sibulo
10. Bankard, Inc. vs. Luz P. Alerte
12. Jona Bumatay vs. Lolita Bumatay