Public International Law: Chapter IV ー International Law and Municipal Law

  International Law and Municipal Law

i. Dualism vs Monism

Q: When there is conflict between international law and domestic law, which is to prevail?

There are varying theories which try to answer the question. 

1. Dualist or pluralist theory

  • International law and municipal law are essentially different from each other. 
  • As to source:
    • Municipal law: local custom or legislation
    • International law: treaties and custom grown among states
  • As regards the relations they regulate:
    • Municipal law: relations between individual persons under the state 
    • International law: relations between states
  • As to their substance:
    • Municipal law: law of the sovereign over individuals 
    • International law: law between sovereign states
  • For the dualists, when international law and municipal law conflict, municipal law must prevail. The dualists are positivists with a strong emphasis on state sovereignty.

2. Monistic Theory or Monism

  • International law and domestic law belong to only one system of law. 
  • There are two monist theories:

  1. Municipal law subsumes and is superior to international law
  2. International law is superior to domestic law (supported by Kelsen)
    • The superiority of international law is seen as flowing from a deep suspicion of local sovereigns and from the conviction that international law can imbue the domestic order with a sense of moral purpose.

ii. Municipal Law in International Law

  • The prevailing practice accepts dualism at least in its postulate that there are two legal systems. 
  • There are prevailing provisions in treaties which recognize dualism. 

Article 27 of the Vienna Convention on the Law of Treaties: 
“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” 

Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949:  
“Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.” 

  • This follows the dualist tradition and blocks domestic law from entry into the international arena. 
  • A state which has violated a provision of international law cannot justify itself by recourse to its domestic law. 
  • A state which has entered into an international agreement must modify its law to make it conform to the agreement. 

Exchange of Greek and Turkish Population Case:
“a principle which is self-evident according to which a state which has contracted a valid international obligation is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.”

  • But even in dualism, the two systems are not completely separated. 
  • Article 38 recognizes the common teachings of domestic law as part of international law. 
Barcelona Traction Case: 
If the Court were to decide the case in disregard of the relevant institutions of municipal law, it would without justification, invite serious legal difficulties. It would lose touch with reality.... It is to rules generally accepted by municipal systems,... and not to the municipal law of a particular State, that international law refers.

  • For a situation, moreover, where the court must decide a dispute which turns not upon international law but upon domestic law...

Brazilian Loans Case: 
“Once the Court has arrived at the conclusion that it is necessary to apply the municipal law of a particular country, there seems to be no doubt that it must seek to apply it as it would be applied in that country....”

iii. International Law in Domestic Law

  • Dualism also rules when it comes to entry of international law into the domestic sphere. 
  • International law, unless it is made part of the domestic system, has no role in the settlement of domestic conflicts.

Q: How does international law become part of domestic law for “dualists”? 

In this regard, there are two theories. 

1. Doctrine of Transformation. 

  • This is based on a strict dualist approach. 
  • Since the two systems are distinct and operate separately, for international law to become part of domestic law it must be expressly and specifically transformed into domestic law through the appropriate constitutional machinery such as an act of Congress or Parliament. 
  • This doctrine flows by analogy from what is applicable to treaties
    • Treaties do not become part of the law of a state unless it is consented to by the state.

2. Doctrine of Incorporation. 

  • Blackstone expressed this in his Commentary when he said that:
    • the law of nations, wherever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law, and it is held to be part of the law of the land.

Q: What does Philippine law follow? 

  • Treaties as international law
    • They become part of the law of the land when concurred in by the Senate in accordance with Article VII, Section 21 of the Constitution which sets down the mechanism for transforming a treaty into binding municipal law. 
    • “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.
  • Customary law and treaties which have become customary law, 
    • Article II, Section 2 of the Constitution “The Philippines... adopts the generally accepted principles of international law as part of the law of the land,
    • The Constitution manifests its adherence to the “dualist” theory and at the same time adopts the incorporation theory and thereby makes international law part of domestic law. 
    • This provision makes the Philippines one of the states which make a specific declaration that international law has the force also of domestic law.
    • International law therefore can be used by Philippine courts to settle domestic disputes in much the same way that they would use the Civil Code or the Penal Code and other laws passed by Congress.

Q: What elements of international law become part of Philippine law by incorporation through Article II, Section 2? 

  • Since treaties become apart of Philippine law only by ratification, the principle of incorporation applies only to customary law and to treaties which have become part of customary law. 
  • This distinction, however, is sometimes blurred in some Philippine Supreme Court decisions.
  • There have been occasions when the Supreme Court made use of international law to settle domestic problems. 

Mejoff v. Director of Prisons (1951):

  • An alien of Russian descent who had been detained pending execution of the order of deportation was ordered released on bail when after two years the deportation order could not be carried out because no ship or country would take him. 

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines “adopts the generally accepted principles of international law as part of the law of the Nation.” 

And in a resolution entitled “Universal Declaration of Human Rights” and approved by the General Assembly of the United Nations of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that:

Art. 1: “All human beings are born free and equal in degree and rights”

Art. 2“Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, nationality or social origin, property, birth, or other status” 

Art. 8“Everyone has the right to an effective remedy by the competent nationals for acts violating the fundamental rights granted him by the Constitution or by law” 

Art. 9“No one shall be subjected to arbitrary arrest, detention or exile”


Kuroda v. Jalandoni (1949):

(The provision) “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 a signatory.”

  • Thus, although the Philippines was not a signatory to the Hague Convention and became a signatory to the Geneva Convention only in 1947, the Court held that a Philippine Military Commission had jurisdiction over war crimes committed in violation of the two conventions prior to 1947. 
  • Apparently, the Court considered jurisdiction over war crimes part of customary law.

Agustin v. Edu (1979):

  • A case involving a presidential Letter of Instruction prescribing the use of early warning devices (EWD), the Court said that the constitutional provision “possesses relevance.” 
  • The court pointed out that the 1968 Vienna Convention on Road Signs and Signals had been ratified by the Philippine government under Presidential Decree No. 207. 
“It is not for this country to repudiate a commitment to which it had pledged its word. The concept Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the principle of international morality.”

  • Strictly speaking, therefore, the incorporation here was done not via the Constitution but by ratification.

JBL. Reyes v. Bagatsing (1983):

  • The international duty of protecting foreign embassies was recognized.

The doctrine of immunity from suit of a foreign state is likewise a principle of international law whose acceptance in this jurisdiction has been established in a long line of cases starting with Raquiza v. Bradford. It was summarized and reaffirmed in Baer v. Tizon.


Conflict between International Law and Domestic Law: International Rule

This incorporation or reception of international law into domestic Philippine law can become a problem when international law, whether customary or conventional, comes into conflict with domestic law, whether constitutional or statutory. 

Q: Which law should prevail? 

  • It will depend on whether the case goes to a domestic court or to an international tribunal
Before an international tribunal
  • It is an established principle that a state may not plead its own law as an excuse for failure to comply with international law. 
  • This principle of the Vienna Convention has long been established and is generally recognized.

Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949:  

“Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitutions or its laws as an excuse for failure to perform this duty.

Exchange of Greek and Turkish Populations Case

“this clause ... merely lays stress on a principle which is self-evident, according to which a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.

Exception:  Article 46 of the Vienna Convention: Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith


Conflict between International Law and Domestic Law: Municipal Rule

Before domestic courts

  • Domestic courts are bound to apply the local law. 
  • In international practice, however, courts are very rarely confronted with such a problem. 
  • The reason for this is that courts are generally able to give to domestic law a construction which does not conflict with international law. 

Q: But should conflict arise, what rule should be followed and what are the possible consequences?

  • Conflict may arise between a state’s Constitution and international law. 
  • Conceivably, however, there should be no such conflict between the Philippine Constitution or statutes on the one hand and customary international law on the other because the Constitution when formulated accepted the general principles of international law as part of the law of the land. 
  • Problems can more likely arise between treaties on the one hand and the Constitution or statutes on the other.

Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law. 

  • The Constitution, in Article VIII, Section 5, 2(a) explicitly recognizes the power of the Supreme Court to declare a treaty unconstitutional. 
The Supreme Court shall have the following powers:
    ....
      (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
        (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. 

        • This does not mean, however, that a treaty that has been declared unconstitutional loses its character as international law. 
        • Under the “dualist” theory, which the Constitution accepts, the unconstitutionality of a treaty is purely a domestic matter.

        Article 27 of the Vienna Convention on the Law of Treaties:

        “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”

        Tanada v. Angara (1997)

        • The Supreme Court handled the challenge to the Senate’s ratification GATT Treaty (General Agreement on Tariffs and Trade).
        • The petitioners in the case argued that the “letter, spirit and intent” of the Constitution mandating “economic nationalism” were violated by the “parity provisions” and “national treatment clauses” scattered in various parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and Declarations and in the Understanding on Commitments in Financial Services. The petitioners had relied on the nationalistic provisions of Articles II and XII of the Constitution.

        By its very title, Article II of the Constitution is a “declaration of principles and state policies.” The counterpart of this article in the 1935 Constitution is called the “basic political creed of the nation” by Dean Vicente Sinco. 

        These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. 

        As held in the leading case of Kilosbayan, Incorporated vs. Morato, the principles and state policies enumerated in Article II and some sections of Article XII are not “self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation

        All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are unfair. 

        In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair..”

        • The position of the Court in Tafiada is a retreat from an the earlier case of Manila Prince Hotel v. Government Service Insurance System (1997).

          • The Court said that the command of Article XII, Section 10 was mandatory and self-executory. 
          • Article XII, Section 10
          • “In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.” 
          • In awarding a contract to a Filipino corporation which had a lower bid than that of a Malaysian, the Court said that the command of Section 12 “is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words, the provision does not require any legislation to put it in operation. It is per se judicially enforceable.” 
        • The Court, however, attempted to justify its new position by saying:

        It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et al„ this Court held that “Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words, the provision does not require any legislation to put it in operation. It is per se judicially enforceable.” 

        However, as the constitutional provision itself states, it is enforceable only in regard to “the grants of rights, privileges and concessions covering national economy and patrimony” and not to every aspect of trade and commerce. 

        It refers to exceptions rather than the rule. The issue here is not whether this paragraph of Sec.10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there are enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement. And we hold that there are.” 


        Illustrative Cases:

        Head Money Cases, Edye v. Robertson 112 U.S. 580 (1884)

        A treaty is primarily a compact between independent nations.

        It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it. 

        If these fail, its infraction becomes the subject of international negotiations and reclamations, so far as the injured party chooses to seek redress, which may, in the end, be enforced by actual war. It is obvious that with all this, the judicial courts have nothing to do, and can give no redress.

        But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law and which are capable of enforcement as between private parties in the courts of the country. 

        An illustration of this character is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance when the individuals concerned are aliens. 

        The Constitution of the United States places such provisions as these in the same category as other laws of Congress by its declaration that this Constitution and the laws made in pursuance thereof, and all treaties made or which shall be made under authority of the United States, shall be the supreme law of the land.

        A treaty, then, is a law of the land; it becomes an an act of Congress whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice, that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.

        But, even in this aspect of the case, there is nothing in this law which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which gives it this superior sanctity.

        A treaty is made by the President and the Senate. 

        Statutes are made by the President, the Senate, and the House of Representatives. 

        The addition of the latter body to the other two in making a law certainly does not render it less entitled to respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this regard, it would seem to be in favor of an act in which all three of the bodies participate. 

        And such is, in fact, the case in a declaration of war, which must be made by Congress and which, when made, usually suspends or destroys existing treaties between the nations thus at war.

        In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal.


        Whitney v. Robertson :: 124 U.S. 190 (1888)

        Field, J.

        The plaintiffs are merchants, doing business in the city of New York; and in August, 1882, they imported a large quantity of ‘centrifugal and molasses sugars,’ the produce and manufacture of the island of San Domingo. These goods were similar in kind to sugars produced in the Hawaiian Islands, which are admitted free of duty under the treaty with the king of those islands, and the act of congress passed to carry the treaty into effect. 

        They were duly entered at the custom-house at the port of New York; the plaintiffs claiming that, by the treaty with the republic of San Domingo, the goods should be admitted on the same terms, that is, free of duty, as similar articles, the produce and manufacture of the Hawaiian islands. 

        The defendant, who was at the time collector of the port, refused to allow this claim, treated the goods as dutiable articles under the acts of Congress....

        The plaintiffs appealed from the collector’s decision to the secretary of the treasury, by whom the appeal was denied. 

        They then paid, under protest, the duties exacted, and brought the present action to recover the amount.... The defendant demurred to the complaint, the demurrer was sustained, and final judgment was entered in his favor; to review which the case is brought here.

        ... [t]he act of Congress under which the duties were collected, authorized their exaction. It is of general application, making no exception in favor of goods of any country. It was passed after the treaty with the Dominican republic, and, if there be any conflict between the stipulations of the treaty and the requirements of the law, the latter must control.

        A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. 

        For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by congress as legislation upon any other subject. 

        If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment. 

        Congress may modify such provisions, so far as they bind the United States, or supersede them altogether. By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. 

        When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing.

        If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essential for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance.

        In Taylor v. Morton, 2 Curt. 454, 459, this subject was very elaborately considered at the circuit by Mr. Justice CURTIS, of this court, and he held that whether a treaty with a foreign sovereign had been violated by him; whether the consideration of a particular stipulation of the treaty had been voluntarily withdrawn by one party, so that it was no longer obligatory on the other; whether the views and acts of a foreign sovereign had given just occasion to the legislative department of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise, were not judicial questions; that the power to determine these matters had not been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments of our government; and that they belong to diplomacy and legislation, and not to the administration of the laws. 

        And he justly observed, as a necessary consequence of these views, that, if the power to determine these matters is vested in congress, it is wholly immaterial to inquire whether by the act assailed it has departed from the treaty or not, or whether such departure was by accident or design, and, if the latter, whether the reasons were good or bad. In these views we fully concur. 

        It follows, therefore, that, when a law is clear in its provisions, its validity cannot be assailed before the courts for want of conformity to stipulations of a previous treaty not already executed. Considerations of that character belong to another department of the government. The duty of the courts is to construe and give effect to the latest expression of the sovereign will. 

        In Head-Money Cases, 112 US. 580, 5 Sup. Ct. Rep. 247, it was objected to an act of congress that it violated provisions contained in treaties with foreign nations, but the court replied that, so far as the provisions of the act were in conflict with any treaty, they must prevail in all the courts of the country; and, after a full and elaborate consideration of the subject, it held that, ‘so far as a treaty made by the United States with any foreign nation can be the subject of judicial cognizance in the courts of this country, it is subject to such acts as congress may pass for its enforcement, modification, or repeal.



        Practice Questions:
        1. What is the fundamental difference between dualism and monism in the context of international law and municipal law?
        2. Under the dualist theory, when there is conflict between international law and domestic law, which is to prevail?
        3. How does the dualist theory differentiate between international law and municipal law concerning their sources, relations, and substance?
        4. According to dualists, why does municipal law prevail when there is a conflict between international law and domestic law?
        5. Explain the two monist theories regarding the relationship between international law and domestic law.
        6. In the Vienna Convention on the Law of Treaties, what does Article 27 state about the invocation of internal law to justify non-compliance with a treaty?
        7. How does the Declaration of Rights and Duties of States Article 13, emphasize the obligation of states to fulfill their international obligations?
        8. Describe the principle outlined in the Exchange of Greek and Turkish Population Case regarding the modification of domestic law to fulfill international obligations.
        9. Explain the significance of the Barcelona Traction Case in illustrating the interaction between international law and municipal law.
        10. How does the Brazilian Loans Case exemplify the application of municipal law in international disputes?
        11. How does international law become part of domestic law for “dualists”? 
        12. Explain the Doctrine of Transformation.
        13. Explain the Doctrine of Incorporation.
        14. In Philippine law, how do treaties become part of the law of the land, and what constitutional mechanism is involved in this process?
        15. How does the Philippine Constitution manifest adherence to both the dualist and incorporation theories regarding international law?
        16. What is the significance of the constitutional provision in the Philippines that recognizes international law as part of domestic law, and how does it empower Philippine courts?
        17. Explain the distinction between treaties and customary international law in the context of Philippine law and their incorporation into domestic legal principles.
        18. What elements of international law become part of Philippine law by incorporation through Article II, Section 2? 
        19. Discuss the Mejoff v. Director of Prisons case and its implications regarding the application of international law in domestic disputes in the Philippines.
        20. How did the Kuroda v. Jalandoni case establish the jurisdiction of Philippine courts over war crimes based on customary international law?
        21. Explain the relevance of the Agustin v. Edu case in demonstrating the incorporation of international law through ratification rather than the Constitution in the Philippines.
        22. Describe the principle of immunity from suit of a foreign state in international law and how it was recognized in the Philippines in the JBL Reyes v. Bagatsing case.
        23. When international law conflicts with domestic law in the Philippines, how is the issue resolved before an international tribunal, according to established principles?
        24. What principle is outlined in Article 13 of the Declaration of Rights and Duties of States regarding the invocation of internal law by a state in international matters?
        25. Explain the exception stated in Article 46 of the Vienna Convention regarding the violation of internal law and its impact on the validity of a treaty.
        26. When international law conflicts with domestic law in Philippine courts, how do courts usually interpret domestic law to avoid contradictions?
        27. In the Tanada v. Angara case, how did the Philippine Supreme Court handle the challenge to the Senate’s ratification of the GATT Treaty in relation to constitutional provisions?
        28. What did the Philippine Supreme Court assert regarding the principles in Article II of the Constitution and their enforceability in the Kilosbayan, Incorporated vs. Morato case?
        29. Explain the shift in the Court's position between the Tanada case and the Manila Prince Hotel v. Government Service Insurance System case regarding the enforceability of constitutional provisions in Philippine law.
        30. How does the Constitution of the Philippines provide mechanisms for resolving conflicts between international agreements and domestic laws, and who has the authority to decide on these matters?
        Additional cases:
        1. Head Money Cases, Edye v. Robertson 112 U.S. 580 (1884)
        2. Whitney v. Robertson :: 124 U.S. 190 (1888)
        View more practice questions here.

        Comments

        Popular posts from this blog

        Equality and Human Rights: The United Nations and Human Rights System (September 16, 2023)

        Commercial Laws 1: R.A. No. 11057 — Personal Property Security Act

        Land Title and Deeds: Chapter 1 — What Lands are Capable of Being Registered