Chapter 4 International Law and Municipal Law I. DUALISM VS.

MONISM 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 International law, unless it is made part of the domestic system, has no role in the settlement of domestic conflicts. Two theories on how an international law become part of the domestic law: 1. Doctrine of Transformation for international law to become part of domestic law it must be expressly and specially transformed into domestic law through the appropriate constitutional machinery such as an act of Congress or parliament. 2. Doctrine of incorporation- incorporated in the constitution as part of the law of the land.

When there is a conflict between international law and domestic law, which is to prevail? Dualist or Pluralist theory The municipal law must prevail The dualists are positivists with a strong emphasis on state sovereignty International Law The sources are treaties and customs grown among states Regulates relations between states A law between sovereign states

Municipal Law Product of local custom or of legislation Regulates relations between individual persons under the state A law of sovereign over individuals

Monistic Theory or Monism - International law and domestic law belong to only one system of law. - Two monist theories: 1. Municipal law subsumes and is superior to international law. 2. Supported by Kelsen, international law is superior to domestic law. Ratio: 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 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 0of the Declaration of Rights and Duties of States Every State has the duty to carry out n good faith its obligations arising from treaties and other sources of international law and it may not invoke the provisions in its constitution or its laws as an excuse for failure to perform this duty.

In the Philippines: In case of 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. With regard to customary laws and treaties which has become customary law, the Philippines adopts the generally accepted principles of the law of the land. Since treaties become part of the Philippine law only by ratification, the principle of incorporation applies only to customary law and to treaties which have become part of the customary law. Case Doctrines: Mejoff v. Director of Prisons Everyone has the right to an effective remedy by the competent nationals for acts violating the fundamental rights granted by the Constitution or by law. Kuroda v. Jalandoni The SC held that 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 signatory. The Court considered jurisdiction over war crimes part of the customary law. Agustin v. Edu The Court pointed out that the 1968 Vienna Convention on Road Signs and Signals had been ratified by the Philippine Government under PD No. 207. It is not for this country to repudiate a commitment to which it had pledged its word. The concept of Pacta Sunt Servanda stands in the way of such an attitude, which is moreover, at war with the principle of international morality.

Exchange of Greek and Turkish Population Case a principle which has contracted a valid international obligation is bound to make its legislation such modification as may be necessary to ensure the fulfillment of the obligation undertaken. Barcelona Traction Case If the Court were to decide the case in disregard of the relevant institutions of municipal la, it would lose touch with reality It is to rules generally accepted by municipal systems and not to the municipal law of particular State that international law refers. Brazilian Loans Case

J.B.L. Reyes v. Bagatsing 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.

Conflict between International Law and Domestic Law: International Rule It will depend on whether the case goes to a domestic court or to an international tribunal. Before an international tribunal, a state may not plead its own law as an excuse for failure to comply with international law. (Sec. 13, Declaration Of Rights And Duties). Exception to Article 27 of the Vienna Convention on the Law of Treaties: Article 46, in cases where the Constitutional violation was manifest and concerned a rule of its internal law of fundamental importance. The violation would be manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

If the treaty is declared unconstitutional, however, it does not come under the exception, the treaty can be ignored domestically but only at the risk of international repercussions before an international court.

Conflict Between International Law And Domestic Law: Municipal Rule Domestic courts are bound to apply the local law. Should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and operative as domestic law. Under the dualist theory, which the Constitution accepts, the unconstitutionality of a treaty is purely domestic matter. The rules in the United States that the treaties and statutes are equal in rank and that since neither is superior to the other, the rule followed is that as between an earlier treaty and a later law, the later one prevails and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null applies in the Philippines, but only in the domestic sphere. Note: The treaty, even if contrary to later statute, remains as international law; while an international tribunal would not have the power to reverse the nullification of a treaty in domestic law, it can take appropriate action in favor of an aggrieved state. Illustrative Cases: 1. Head Money Cases Edye v. Robertson, p. 66 2. Whitney v. Robertson, p. 68 (note: basahin nyo na lang sa book, ang gulo e, hehehe) -Kriselle S. Balmes