Meaning

International Law – (traditional meaning) - is that it is a body of rules and principles of action
which are binding upon civilized states in their relations to one another.
- Sovereign states remain as the principal subjects of international law; but they are now
joined by international organizations and even by individuals.
- 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.”
Scope of international law
- it now covers all the interests of contemporary international and even domestic life.
Is international law a law?
- The International Court of Justice can bind states only when states consent to be bound.
- There exists no international legislative body.
- There is no international executive.
Some theories about international law.
- Command theory. In the view of John Austin, 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.
- 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.
- 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.
o International law is law because it is seen as such by states and other subjects of
international law.
- The positivist approach reinterpreted international law not on the basis of concepts
derived from reason but rather on the basis of what actually happened in the conflict
between states.
International law into two
Private international law – commonly referred as conflict of law; is domestic law which deals
with cases where foreign law intrudes into the domestic sphere, where there is questions of the
applicability of foreign law or the role of foreign courts.
Public international law – regulate conduct of states.
Multilateral treaties are treaties between 3 or more countries. Bilateral
treaties are treaties between two countries. 

Sources of International Law

Article 38 of the ICJ
1. The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
Doctrine of incorporation - as expressed in Section 2, Article II of the Constitution, wherein
the Philippines adopts the generally accepted principles of international law and international
jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and
amity with all nations.
Soft Law vs. Hard Law
The term soft law is used to denote agreements, principles and declarations that are not legally
binding. Hard law refers generally to legal obligations that are binding on the parties involved
and which can be legally enforced before a court.
Executive Agreement vs Treaties
(1) treaties that require legislative concurrence after executive ratification; or (2) executive
agreements that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of subject matters
than treaties.
(2) Substantive difference treaties affect civil rights; broader in scope whereas, an executive
agreement is a power lodged to the executive; narrower in scope and does not affect civil
rights.
Composition of ICJ
- 15 judges, there cannot be two judges of the same nationality
- Voted by security counsel, united nations and general assembly
Jurisdiction of the International Court of Justice
Article 36
1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters
specially provided for in the Charter of the United Nations or in treaties and conventions in
force.
2. The states parties to the present Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in relation to any other state accepting the
same obligation, the jurisdiction of the Court in all legal disputes concerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an
international obligation;
d. the nature or extent of the reparation to be made for the breach of an international
obligation.
3. The declarations referred to above may be made unconditionally or on condition of reciprocity
on the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United Nations, who
shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of International
Justice and which are still in force shall be deemed, as between the parties to the present Statute,
to be acceptances of the compulsory jurisdiction of the International Court of Justice for the
period which they still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by
the decision of the Court.
Consent of state how acquired:
1. The states parties to the present Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in relation to any other state
accepting the same obligation
The declarations referred to above may be made unconditionally or on condition of
reciprocity on the part of several or certain states, or for a certain time.
Such declarations shall be deposited with the Secretary-General of the United Nations,
who shall transmit copies thereof to the parties to the Statute and to the Registrar of the
Court.
2. Compromissory clauses – 34 (1)
Treaties – 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 practices create a customary international law.
Principle of pacta sunt servanda (Latin: “agreements must be kept”)
- That states must observe in good faith all of its obligations under treaties. Article 26 of
the Vienna convention
Treaties cannot overcome Jus Cogens
Jus Cogens
- the principles which form the norms of international law that cannot be set aside.
In case of conflict on international law and municipal law
- if in conflict with the constitution, upheld the constitution
- Article 8 Sec. 5 – SC has the power to declare treaties unconstitutional
- If the conflict is with a statute – doctrine of incorporation
o A treaty may repeal a statute and a statute may repeal a treaty depending on the
circumstances
o Ichong vs Hernandez (domestic)
 The court held that the retail trade nationalization law prevails over the
treaty between china and the universal declaration of human rights
because the law was passed in the exercise of police power of the state and
police power cannot be bargained away to a medium of treaty or contract.
Sec. 7 – E.O. 459
A. Executive Agreements.
1. All executive agreements shall be transmitted to the Department of Foreign
Affairs after their signing for the preparation of the ratification papers. The transmittal
shall include the highlights of the agreements and the benefits which will accrue to the
Philippines arising from them.
2. The Department of Foreign Affairs, pursuant to the endorsement by the concerned
agency, shall transmit the agreements to the President of the Philippines for his
ratification. The original signed instrument of ratification shall then be returned to the
Department of Foreign Affairs for appropriate action.
B Treaties.
1. All treaties, regardless of their designation, shall comply with the requirements
provided in subparagraph 1 and 2, item A Executive Agreements) of this Section. In
addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the
Philippines for concurrence in the ratification by the President. A certified true copy of
the treaties, in such numbers as may be required by the Senate, together with a certified
 true copy of the ratification instrument, shall accompany the submission of the treaties to
the Senate.
2. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs
shall comply with the provision of the treaties 1n effecting their entry into force.

1987 Constitution

Article VII

Section 20. The President may contract or guarantee foreign loans on behalf of the Republic of
the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations
as may be provided by law. The Monetary Board shall, within thirty days from the end of every
quarter of the calendar year, submit to the Congress a complete report of its decision on
applications for loans to be contracted or guaranteed by the Government or government-owned
and controlled corporations which would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.

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.

Article 8

Section 4.

(2) All cases involving the constitutionality of a treaty, international or executive agreement, or
law, which shall be heard by the Supreme Court en banc, and all other cases which under the
Rules of Court are required to be heard en banc, including those involving the constitutionality,
application, or operation of presidential decrees, proclamations, orders, instructions, ordinances,
and other regulations, shall be decided with the concurrence of a majority of the Members who
actually took part in the deliberations on the issues in the case and voted thereon.

Article XVIII

Section 25. After the expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning military bases, foreign military bases,
troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in
by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a treaty by the other
contracting State.
Article 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.

Cases:

Somalia v. Kenya

The MOU is a written document, in which the Parties record their agreement on certain points
governed by international law. The inclusion of a provision addressing the entry into force of the
MOU is indicative of the instrument’s binding character. Kenya considered the MOU to be a
treaty, having requested its registration in accordance with Article 102 of the Charter of the
United Nations, and Somalia did not protest that registration until almost five years thereafter.
Furthermore, it is clear from the actual terms of the MOU, which make express provision for it to
enter into force upon signature, and the terms of the authorization given to the Somali Minister,
that this signature expressed Somalia’s consent to be bound by the MOU under international law.

Fisheries Jurisdiction Case, United Kingdom of Great Britain and Northern Ireland v.
Iceland

After the 1960 Second United Nations Conference on the Law of the Sea, England and Iceland
began a series of negotiations to resolve their differences, and in 1961 reached a settlement in an
Exchange of Notes agreeing to a 12-mile fishery zone around Iceland.

In 1971, Iceland decided to extend its fisheries jurisdiction to a 50-mile zone, and maintained
that the 1961 Exchange of Notes was no longer in effect. These actions form the core of this
dispute.

The Court held that the 1972 Icelandic Regulations constituted a unilateral extension of the
exclusive fishing rights of Iceland to 50 nautical miles. Iceland could not unilaterally exclude the
United Kingdom from areas between the fishery limits agreed to in the 1961 Exchange of Notes.

The Court decided that Iceland and the United Kingdom had to undertake negotiations in good
faith to find an equitable solution to their differences concerning their respective fishery rights.
The parties were to consider that Iceland was entitled to a preferential share in the distribution of
fishing resources due to the special dependence of its people upon coastal fisheries, as well as the
principle that each state must pay due regard to the interests of the other in the conservation and
equitable exploitation of these resources.
The court noted two concepts that had been accepted as part of customary law: (1) the idea of a
fishery zone in which each state may claim exclusive fishery jurisdiction independently of its
territorial sea, and that a fishery zone up to a 12-mile limit from the baseline is generally
accepted; and (2) the concept of preferential rights of fishing in adjacent waters in favor of the
coastal state which has special dependence on its coastal fisheries.

Nuclear Test Cases (Australia and NZ v. France, ICJ Reports, 1974)

It is well recognized that declarations made by way of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal obligations. Nothing in the nature of a quid pro
quo, nor any subsequent acce1ptance, nor even any reaction from other States is required for
such declaration to take effect. Neither iii the question of form decisive. The intention of being
bound! is to be ascertained by an interpretation of the act. The binding character of the
undertaking results from the terms of the act and is based on good faith; interested States are
entitled to require that the obligation be respected.
U.S. vs. Carter
The unilateral dismissal of treaties is a political question and not a justiciable question, no
constitutional prohibition of withdrawal of treaties by the president.
Bayan Muna v. Zamora
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless
the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must
be duly concurred in by the Senate and, when so required by congress, ratified by a majority of
the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other
contracting state.

Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty. To
be sure, as long as the VFA possesses the elements of an agreement under international law, the
said agreement is to be taken equally as a treaty.

Pimentel v. Executive

Petitioners contend that ratification of a treaty, under both domestic and international law, is a
function of the Senate, hence it is the duty of the Executive Department to transmit the signed
copy to the senate to allow it to exercise its discretion.
The President as the head of state is the sole organ and authorized in the external relations and he
is also the country's sole representative with foreign nations, He is the mouthpiece with respect to
the country's foreign affairs.
In treaty-making, the President has the sole authority to negotiate with other states and enter into
treaties but this power is limited by the Constitution with the 2/3 required vote of all the
members of the Senate for the treaty to be valid. (Sec. 21, Art VII).

Abaya v. Ebdane
An “exchange of notes” is a record of a routine agreement that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other.
…treaties, agreements, conventions, charters, protocols, declarations, memoranda of
understanding, modus vivendi and exchange of notes all are refer to international instruments
binding at international law.
Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the
result of long practice among the States, which have accepted them as binding norms in their
mutual relations. Therefore, they are regarded as international customary law.

Pharmaceutical v. DOH

Under 1987 Consti, int’l law can become domestic law by transformation (thru constitutional
mechanism such as local legislation) or incorporation (mere constitutional declaration i.e
treaties) The ICBMS and WHA resolutions were not treaties as they have not been concurred by
2/3 of all members of the Senate as required under Sec, 21, Art 8. However, the ICBMS had
been transformed into domestic law through a local legislation such as the Milk Code. The Milk
Code is almost a verbatim reproduction of ICBMS.
Some provision that was transformed based on WHA resolutions are not binding “considered as
soft law” hence void and unconstitutional. Failed to establish opinion juris and state practice.
Suzette Nicolas vs. Alberto Romulo
First, as held in the case of Bayan vs. Zamora, the VFA was duly concurred in by the Senate of
the Philippines and has been recognized as a treaty by the United States as attested and certified
by duly authorized representative of the United States government. The fact that the VFA was
not submitted for advice and consent of the United States Senate does not detract from its status
as a binding international agreement or treaty recognized by the said State. Second, the earlier
RP-US Mutual Defense Treaty of August 30, 1951 was signed and duly ratified with the
concurrence of both the Philippine Senate and the United States Senate. Hence, the VFA, which
is the instrument agreed upon to provide for the joint RP-US military exercises, is simply an
implementing agreement to the main RP-US Military Defense Treaty. Accordingly, as an
implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to submit
the VFA to the US Senate for advice and consent, but merely to the US Congress under the
Case-Zablocki Act within 60 days of its ratification.

China National Machinery v. Santamaria

There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the courts of another sovereign. According to the newer or
restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii of a state, but not with regard to private acts or acts jure gestionis.
Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of
the act involved – whether the entity claiming immunity performs governmental, as opposed to
proprietary, functions. The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign, its commercial
activities or economic affairs. Stated differently, a State may be said to have descended to the
level of an individual and can thus be deemed to have tacitly given its consent to be sued only
when it enters into business contracts. It does not apply where the contract relates to the exercise
of its sovereign functions.

Deutsche Bank AG Manila Branch v. CIR

"A state that has contracted valid international obligations is bound to make in its legislations
those modifications that may be necessary to ensure the fulfillment of the obligations
undertaken."[20] Thus, laws and issuances must ensure that the reliefs granted under tax treaties
are accorded to the parties entitled thereto. The BIR must not impose additional requirements
that would negate the availment of the reliefs provided for under international agreements. More
so, when the RP-Germany Tax Treaty does not provide for any pre-requisite for the availment of
the benefits under said agreement.
(Deutsche Bank vs. Cir G.R. No. 188550 August 19, 2013)
Mitsubishi Corporation - Manila Branch Vs. Commissioner of Internal Revenue
In this case, it is fairly apparent that the subject taxes in the amount of P 52,612,812.00 was
erroneously collected from petitioner, considering that the obligation to pay the same had already
been assumed by the Philippine Government by virtue of its Exchange of Notes with the
Japanese Government. Case law explains that an exchange of notes is considered as an executive
agreement, which is binding on the State even without Senate concurrence.