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INTERNATIONAL LAW

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. States are the sole actors in this definition
and, in the past, public international law dealt almost exclusively with regulating the relations between states
in diplomatic matters and in the conduct of war. Today, sovereign states remain as the principal subjects
of international law; but they are now joined by international organizations and even by individuals.' Thus,
the Restatement (Third) of Foreign Relations Law of the United States, which U.S. courts generally consider
as the most authoritative work on the subject, defines international law 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.” (Bernas, 2009)

Obligatory Nature of International Law


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.” (Henkin, How Nations Behave)

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.” (Brierly, The Law of Nations)

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.

In the ultimate analysis, however, the best answer is pragmatic. Fundamentally, there is a general respect
for law and also there is concern about the consequences of defiance either to oneself or to the larger
society. International law is law because it is seen as such by states and other subjects of international law.

Summarily, the binding nature of International Law is based on the following:


1. Natural Law – it is in the natural order of things that certain matters should be regulated in a
compulsory manner. An obligatory foundation to the basic precept of justice is to be found in natural
law.
2. Consent – based on the sovereignty of states, which in turn emphasizes their freedom to act
unilaterally save to the extent they agreed upon to be constrained.
3. Reciprocity – as notions of justice were placed by consent, so consent has gradually been replaced
by consensus which has come about because states perceive a reciprocal advantage in cautioning
self-restraint.

Sources of International Law


Primary Sources
1. Treaties – the general rule is that for a treaty to be considered a direct source of international law,
it must be concluded by sizable number of states and thus reflect the will or at least the consensus
of the family of nations
2. Custom – a practice which has grown up between states and has come to be accepted as binding
by the mere fact of persistent usage over a long period of time. Custom is distinguished from usage.
The latter while also a long-established way of doing things by states is not coupled with the
conviction that it is obligatory and right.
Requisites:
a. Duration
b. Consistency or widespread repetition by states
c. Generality or act is taken by a significant number of states and not rejected by a significant
number of states
d. Opinion Juris Sive Necessitates or the requirement that the acts must occur out of a sense of
obligation
3. General principles of International Law – mostly derived from the law of nature and are observed
by the majority of states because they all believed to be good and just (e.g. prescription, estoppel,
consent, res judicata, and pacta sunt servanda).
Secondary Sources
These sources are not authorities in deciding a case but only have a persuasive effect because it only
shows the interpretation of a state to a particular international law. These sources are:
1. Decisions of International Tribunals
2. Writings and teachings of the most highly qualified publicists

BRANCHES OF INTERNATIONAL LAW


International Law is further classified as Public and Private International Law. A distinction should be made
between public international law, sometimes referred to only as international law and private international
law, more commonly called conflict of laws. Public international law governs the relationships between and
among states and also their relations with international organizations and individual persons. Private
international law is really 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. (Bernas,
2009)

A. Public International Law


It is the body of legal rules, which apply to sovereign states and such other entities that have been granted
international personality.

B. Private International Law or Conflict of Laws


It is that part of the municipal law of a state which directs its courts and administrative agencies, when
confronted with a legal problem involving a foreign element, whether or not hey should apply a foreign law
or foreign laws (Paras, Philippine Conflict of Laws 1996).

Fundamentally a problem of choice of law between foreign law and local or municipal law by the forum
court, with local or municipal law as its starting point (Agpalo, Conflict of Laws 2004)

DISTINCTIONS OF PRIVATE AND PUBLIC INTERNATIONAL LAW


Public Private
As to Source
1. International conventions Domestic and municipal laws, which includes the
2. International customs constitution and statutes adopted by individual
3. General principles of law recognized by countries
civilized nations
4. Judicial decisions
5. Teachings of the most highly qualified
publicists of the various nations
As to nature or character
International in character National, municipal, local in character
As to persons involved
Sovereign states and entities possessed of Private individuals or corporations
international personality, exceptionally, individuals
too
As to transactions involved
Transactions in which sovereign states are Strictly private in nature
interested
As to remedies applied
In case of violation of international law, resort may Resort to municipal tribunals
be peaceful or forcible

Peaceful remedies
Diplomatic netiation, tender and exercise of good
offices, mediation, inquiry and conciliation,
arbitration, judicial settlement by internatiol court of
justice

Forcible remedies
Severance of diplomatic relations, retorsions,
reprisals, embargo, boycott, non-intercourse,
pacific blockades, and finally war

FOREIGN ELEMENT
It is anything which is not domestic and has a foreign component to it. It can be a foreigner, a foreign
corporation, an incident happening in a foreign country, or a foreign law chosen by the parties. Without a
foreign element, the case is only a domestic problem with no conflicts dimension.

A factual situation that cuts across territorial lines and is affected by the diverse laws of two or more states
is said to contain a foreign element. The presence of a foreign element is inevitable since social and
economic affairs of individuals and associations are rarely confined to the geographic limits of their birth or
conception (Saudi Arabian Airlines v. CA GR. No. 122191)

PHASES/HASEGAWA CASE

STEPS IN DETERMINING APPLICABLE LAW


A. Characterization
This involves identification of the issue in the problem. It is a process of spotting the legal issues as
presented by the facts of the case. The following must be done:
1. Pinpoint the branch of law (e.g. contracts, torts, citizenship, succession, etc.)
2. Determine existence of a foreign element
- In the absence of a foreign element, apply the rule, law, or jurisprudence prevailing in the forum.

The difficulty in characterization arises from the fact that a conflicts situation or problem may be
characterized by the lex fori differently from the characterization of the lex causae (the law of the state with
which the act or transaction is most closely connected). Most writers hold that on the grounds of practical
necessity and convenience, it is the forum, or the lex fori, that should determine the problem’s
characterization, unless the result would be a clear injustice.

Characterization of “Substantive” or “Procedural” Law


There is no question that all procedural matters are governed by the lex fori. Confusion exists in
classification of prescription of actions and Statute of Frauds. Some state may characterize them as
procedural rather than substantive (in the PH, it is substantive). The modern trend is to consider what the
parties had in mind at the time the transaction took place. An exception is if the subject-matter is property
located in the PH, in which case PHL law, being lex situs, applies.
Ex. A promissory note issued by an Englishman in England prescribes in 4 years (English law), and not 10
years (Philippine law). The parties intended English law to govern their transaction.

B. Connecting Factors
An analysis is made with respect to which jurisdiction or fora has the most connection to the case.
Factors:
a. Nationality of parties
b. Location of the act or event
c. Terms of the agreement or contract
d. Other matters
CHOICE OF APPLICABLE LAW
Article 1306 of the Civil Code provides that “contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good
customs, public order, or public policy.” Parties to a contract are free to stipulate the applicable law that will
govern their contractual relations.

Exceptions to the Application of Foreign Law


1. The enforcement of the foreign law would run counter to an important public policy of the forum
2. Where the application of the foreign law would infringe good morality as understood in the forum
3. Foreign law is penal in nature
4. Foreign law is procedural in nature
5. Foreign law is fiscal or administrative in nature
6. Application of foreign law would involve injustice or injury to the citizens or residents of the forum
7. Application of foreign law would endanger the vital interests of the state
Note: Having these exceptions present, the court may find itself obligated to apply the internal law.

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