International Law Solutions to Philippine Law Problems:

A 7-Step Process

Andre Palacios*
2 March 2021

In numerous cases, the Philippine Supreme Court has sought International Law solutions to
Philippine Law problems by interpreting or applying rules of public international law (“PIL”)
in relation to the Philippine legal issues before the Court. The PIL rules interpreted or applied
by the Court include:

1. Tax treaty provisions;1

2. Extradition treaty provisions;2
3. Civil aviation treaty provisions;3
4. Treaty provisions and customary rules on the immunity of foreign states4 and their
diplomats,5 officers,6 and warships;7
5. Treaty provisions on the immunity of international organizations 8 and their staff; 9
6. Treaty provisions concerning foreign military personnel. 10

The legal process for applying PIL rules to cases before national courts is different for each
State.11 In the Philippine legal system, PIL rules may be applied to Philippine cases based on
the following 7-step process:

Step 1. Identify the PIL rule.

Step 2. Identify the formal and material sources of the PIL rule.
Step 3. Determine whether the PIL rule is binding upon the Philippine State under the
international legal system.
Step 4. Determine whether the PIL rule has been domesticated into a Philippine legal
rule in the Philippine legal system.
Step 5. Identify the place of the domesticated PIL rule in the hierarchy of rules in the
Philippine legal system.

*
Assistant Professor and LL.M. Deputy Director, University of the Philippines College of Law, teaching
international law in the Juris Doctor and Master of Laws programs. Concurrently, Executive Director, ASEAN
Law Institute and National Director for International Law, Integrated Bar of the Philippines. LL.B., University
of the Philippines; LL.M. (Public International Law), University College London (Chevening Scholar).
1
Deutsche Bank AG Manila Branch v. Commissioner of Internal Revenue, G.R. No. 188550, August 19, 2013;
Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, January 11, 2016.
2
Government of Hongkong Special Administrative Region v. Muñoz, G.R. No. 207342, November 7, 2017.
3
American Airlines v. Court of Appeals, G.R. No. 116044-45, March 9, 2000; Santos III v. Northwest Orient
Airlines, G.R. No. 101538, June 23, 1992; Lhuillier v. British Airways, G.R. No. 171092, March 15, 2010.
4
Republic of Indonesia v. Vinzon, G.R. No. 154705, June 26, 2003.
5
Minucher v. Court of Appeals, G.R. No. 142396, February 11, 2003; Republic of Indonesia v. Vinzon, G.R.
No. 154705, June 26, 2003.
6
United States of America v. Judge Guinto, G.R. No. 76607, February 26, 1990.
7
Arigo v. Swift, G.R. No. 206510, September 16, 2014.
8
Department of Foreign Affairs v. National Labor Relations Commission, G.R. No. 113191, September 18,
1996.
9
Liang v. People, G.R. No. 125856, March 26, 2001.
10
Nicolas v. Romulo, G.R. No. 175888, February 11, 2009; BAYAN MUNA v. Romulo, G.R. No. 159618,
February 1, 2011..
11
Nicolas v. Romulo, G.R. No. 175888, February 11, 2009.
 Palacios, International Law Solutions to Philippine Law Problems

Step 6. Determine the effect of the domesticated PIL rule on Philippine legal rules that
came from domestic sources.
Step 7. Determine whether the domesticated PIL rule can be applied in a Philippine case
to obtain the desired relief under the Philippine legal system.

Separate Legal Systems

0.1. The 7-step process is necessary because the Philippine legal system follows the “dualist
view.” Justice Brion explained the dualist view as follows:

“Under [the dualist view], the Philippines sees international law and its international
obligations from two perspectives: first, from the international plane, where
international law reigns supreme over national laws; and second, from the domestic
plane, where the international obligations and international customary laws are
considered in the same footing as national laws, and do not necessarily prevail over
the latter. The Philippines’ treatment of international obligations as statutes in its
domestic plane also means that they cannot contravene the Constitution, including the
mandated process by which they become effective in Philippine jurisdiction.” 12

0.2. Under the dualist view, the international legal system and the Philippine legal system are
viewed as separate and distinct, each with (1) its own ways of creating, interpreting, and
enforcing the rules in its system and (2) its own hierarchy of rules.

PIL rules Philippine

legal rules

International Legal Philippine Legal

System System

0.3. The Philippine legal system has its own ways of creating Philippine legal rules. In the
Philippine legal system, rules are created through any one of the following ways:

(1) the Filipino people, exercising their power as “the Sovereign”, creates the
fundamental rules that are reflected in the Constitution;
(2) the Congress, exercising legislative power delegated by the Filipino people, creates
rules that are reflected in statutes;
(3) the President and the various offices of the Executive Department, exercising
rulemaking powers delegated by the Filipino people under the Constitution or by the
Congress under statutes, create rules that are reflected in executive regulations;

12
Separate Concurring Opinion in Intellectual Property Association of the Philippines v. Ochoa, G.R. No.
204605, July 19, 2016.

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 Palacios, International Law Solutions to Philippine Law Problems

(4) the Supreme Court, exercising rulemaking powers delegated by the Filipino people or
the Congress, creates rules that are reflected in the Rules of Court and other
procedural rules; and
(5) the local government units, exercising rulemaking powers delegated by the Congress,
create rules that are reflected in local ordinances.
(6) Philippine legal rules are also created through the domestication of PIL rules.

0.4. The hierarchy of rules in the Philippine legal system is as follows: (a) on the first tier are
the constitutional rules; (b) on the second tier are the statutory rules; and (c) on the third tier
are the rules created by the Executive Department, the Supreme Court, and the local
government units.

0.5. The international legal system has its own ways of creating international legal rules. In
the international legal system, rules are created through any one of the following ways:

(1) States and international organizations create conventional rules by entering into
agreements;
(2) States create customary rules through their general and consistent practice performed
with opinio juris; and
(3) Rules are created by deriving general principles of law from national legal systems.

0.6. The hierarchy of rules in the international legal system is as follows: (a) on the first tier
are the jus cogens rules (i.e., a special kind of general customary rules from which States are
not allowed to derogate); (b) on the second tier are the conventional rules (i.e., rules
embodied in international agreements) and ordinary customary rules, and (c) on the third tier
are the general principles of law.

0.7. As the Philippine legal system is separate from the international legal system, a PIL rule
is not considered a rule in the Philippine legal system unless it is first converted, or
“domesticated”, into a Philippine legal rule. The dualist view is reflected in the following
constitutional provisions:

(1) Article II, Section 2 of the Constitution, also known as the Incorporation Clause,
which provides: “The Philippines…adopts the generally accepted principles of
international law as part of the law of the land.” Under the Incorporation Clause, PIL
rules that are “generally accepted principles of international law” (i.e., rules of general
customary international law 13) are domesticated into Philippine legal rules and made
“part of the law of the land.”
(2) Article VIII, Section 5(2)(a) of the Constitution which grants the Supreme Court the
power to review decisions of lower courts in “All cases in which the constitutionality
or validity of any treaty [or] international or executive agreement…is in question.”
This provision shows that domesticated PIL rules embodied in treaties and executive
agreements must conform to the hierarchy of rules in the Philippine legal system, and
may be declared unconstitutional if they conflict with any constitutional rules.

13
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary, G.R. No. 173034, October
9, 2007.

3
 Palacios, International Law Solutions to Philippine Law Problems

Step 1. Identify the PIL rule

1.1. The rule being considered for application in a Philippine case must be an international
legal rule, i.e., a rule of public international law (“PIL”), that is considered binding and
obligatory. If the rule is merely a moral rule or a political rule, then it is not binding on the
Philippine State and, thus, will not be domesticated into the Philippine legal system.

1.2. A PIL rule is “one that has been accepted as such by the international community of
States” in the form of customary or conventional law or general principle of law. 14 A PIL rule
constitutes “hard law” which is binding and creates legal rights and obligations under the
international legal system.

1.3. A PIL rule must be distinguished from “soft law” which refers to norms, principles, and
practices that are non-binding and do not create any legal rights or obligations, but
nonetheless influence the behavior of States.15

1.4. After identifying the PIL rule, it is important to (1) determine the legal rights and
obligations created by such rule under the international legal system; and (2) identify the
bearers of these legal rights and obligations under the international legal system.

Step 2. Identify the formal and material sources of the PIL rule.

2.1. The formal source of the PIL rule must be identified. The formal source determines the
mode by which the PIL rule will be domesticated into the Philippine legal system. The
material source of the PIL rule must also be identified as it constitutes the evidence of the
content of the PIL rule (i.e., what the rule provides or prohibits).

2.2. Formal Source. A PIL rule is considered binding because it was created through one of
the three processes accepted by the international community of States as capable of creating
legal rules in the international legal system. These processes are called the “formal sources”
of law as they refer to the form of the legal rules (in contrast to their substance or content).
The three formal sources of PIL rules are:

1. Custom. Customary international law, also known as customary law, is created

through “the general and consistent practice of States followed by them from a sense
of legal obligation;”16
2. Treaty. Conventional international law, also known as treaty law, is created through
agreements between States, or between States and international organizations, or
between international organizations; and
3. General Principle of Law. General principles of law are created as PIL rules by
deriving these principles from the national legal systems.

14
AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES
(“RESTATEMENT”), Section 102.
15
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary, G.R. No. 173034, October
9, 2007.
16
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary, G.R. No. 173034, October
9, 2007, citing the RESTATEMENT.

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 Palacios, International Law Solutions to Philippine Law Problems

2.3. These formal sources of PIL rules are referenced in the Statue of the International Court
of Justice (“ICJ”):

“Art. 38 (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.”

2.4. Material Source. The material source of a rule of conventional international law is the
text of the international agreement itself. The text of the agreement is the evidence of the
content of the conventional rule (i.e., what it provides or prohibits).

2.5. The primary material source of a rule of customary international law is the general and
consistent practice of States performed with opinio juris, consisting of the numerous
declarations and acts made by the various States through their organs and representatives.
The secondary material sources of a customary rule are ”judicial decisions and the teachings
of the most highly qualified publicists of the various nations”, both of which serve as
“subsidiary means for the determination of rules of law.”17

Step 3. Determine whether the PIL rule is binding upon the Philippine State under the
international legal system.

3.1. The PIL rule being considered for application in a Philippine case must be binding on the
Philippine State in the form of customary law or conventional law in order that the PIL rule
may be domesticated into the Philippine legal system.

3.2. If the PIL rule is a rule of general customary international law, then such rule is binding
on all States under the international legal system, including the Philippine State. However,
the Philippine State will not be bound by the general customary rule if the Philippine State
was a “persistent objector” prior to the formation of the customary rule.

3.3. If the PIL rule is a rule of regional customary international law, then such rule is binding
only on those States located in the relevant geographic region. In such instance, it is
necessary to determine whether the Philippine State belongs to the geographic region where
the regional customary rule is binding. The Philippine State will not be bound by the regional
customary rule if the Philippine State was a “persistent objector” prior to the formation of the
customary rule.

17
Art. 38(1)(d), Statute of the ICJ.

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 Palacios, International Law Solutions to Philippine Law Problems

3.4. If the PIL rule is a rule of conventional international law, then it is necessary to:

1. Examine the provisions of the international agreement to determine the mode required
by the agreement for expressing a State’s consent to be bound (e.g., mere signature, or
signature and subsequent deposit of an instrument of ratification);
2. Determine whether the Philippine State has complied with the requirements of the
international agreement for expressing a State’s consent to be bound (e.g., whether the
Philippine State’s representatives have signed the agreement and have subsequently
deposited the instrument of ratification);
3. Determine whether the Philippine State made any reservations when it expressed its
consent to be bound by the international agreement; and
4. Determine whether the international agreement has entered into force with regard to
the Philippine State according to the terms of such agreement.

3.5. An international agreement may impose the requirement that States express their consent
to be bound through a two-step process: (a) signature and (b) subsequent ratification.

1. Signatory. Where an international agreement imposes such a requirement, a State that

has taken the first step (signature) but has not taken the second step (ratification) will
be considered a “signatory” to the agreement. A State that is a signatory to such an
agreement is not a party to the said agreement and, thus, is not bound by it. However,
the signatory State has the obligation, under customary and conventional international
law, to refrain from committing acts that would defeat the object and purpose of the
said agreement.18
2. Party. Where a State has taken both steps (signature and ratification), then such State
is considered a “party” (not a mere signatory) to the international agreement.

3.6. If the PIL rule is a general principle of law, then such rule is binding on all States under
the international legal system, including the Philippine State.

Step 4. Determine whether the PIL rule has been domesticated into a Philippine legal
rule in the Philippine legal system.

4.1. The PIL rule being considered for application in a Philippine case must have been
domesticated into the Philippine legal system as (a) a customary rule, (b) a treaty rule, or
(c) an executive agreement rule.

4.2. If the PIL rule is a “generally accepted principle of international law” (i.e., a rule of
general customary international law 19), then such PIL rule has been domesticated into the
Philippine legal system by way of incorporation under the Incorporation Clause (Article II,
Section 2) of the Constitution.

4.3. If the PIL rule is embodied in an international agreement, the process of its domestication
depends on the status of the international agreement under the Philippine legal system (not

18
Vienna Convention on the Law of Treaties Between States, Article 18.
19
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary, G.R. No. 173034, October
9, 2007.

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 Palacios, International Law Solutions to Philippine Law Problems

under the international legal system). Under the Philippine legal system, an international
agreement is either (a) a treaty or (b) an executive agreement.

4.4. In the Philippine legal system, the term “treaty” is given a narrow meaning, and is used
to refer to a type of international agreement that requires Senate concurrence. In contrast, in
the international legal system, the term “treaty” is given a broad meaning, and is used to refer
to any kind of international agreement, including those agreements that, under Philippine law,
do not require Senate concurrence.

4.5. If the PIL rule is embodied in a treaty (as the term is used in its restrictive sense in the
Philippine legal system), then such PIL rule is required to be domesticated into the Philippine
legal system by way of transformation under the Treaty Clause (Article VII, Section 21) of
the Constitution, which provides: “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.” For a
PIL rule that is embodied in a treaty, it is necessary to determine whether:

1. The Philippine President has (a) signed the instrument of ratification of the
international agreement, and (b) transmitted the signed instrument of ratification to
the Philippine Senate for concurrence; and
2. The Philippine Senate has adopted a Senate resolution wherein at least two-thirds of
all the Members of the Senate concurred in the President’s ratification of the
international agreement.

4.6. If the PIL rule is embodied in an executive agreement, then such PIL rule is domesticated
into the Philippine legal system through its ratification by the Philippine President, without
need of Senate concurrence.20 The Supreme Court explained the domestication of rules
embodied in executive agreements as follows:

“The concurrence of [the Senate] is required by our fundamental law in the making of
‘treaties’…, which are, however, distinct and different from ‘executive agreements’,
which may be validly entered into without such concurrence.” 21

4.7. The Supreme Court explained the domestication of (1) customary rules through
incorporation and (2) treaty rules through transformation, as follows:

“Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation….The incorporation method
applies when, by mere constitutional declaration, international law is deemed to have
the force of domestic law….Treaties become part of the law of the land
through transformation pursuant to [the Treaty Clause]. Thus, treaties or conventional
international law must go through a process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to domestic conflicts.” 22

20
Executive Order No. 459, November 25, 1997, Section 2(c).
21
Commissioner of Customs v. Eastern Sea Trading, G.R. No. L-14279, October 31, 1961.
22
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary, G.R. No. 173034, October
9, 2007

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 Palacios, International Law Solutions to Philippine Law Problems

4.8. The Philippine Supreme Court has noted that, in the legal system of the United States of
America, international agreements concluded by USA are domesticated into the US legal
system (1) without need of implementing legislation if such agreements are “self-executing”;
or (2) through implementing legislation if such agreements are not “self-executing.”23 The
Supreme Court has not elaborated on whether the concept of “self-executing” international
agreements applies to agreements concluded by the Philippine State.

Step 5. Identify the place of the domesticated PIL rule in the hierarchy of rules in the
Philippine legal system.

5.1. As stated above, the hierarchy of rules in the Philippine legal system is as follows: (1) on
the first tier are the constitutional rules; (2) on the second tier are the statutory rules; and
(3) on the third tier are the rules issued by the Executive Department, the Supreme Court, and
the local government units.

5.2. Upon the domestication of a “generally accepted principle of international law” (i.e., a
rule of general customary international law) into the Philippine legal system, the
domesticated PIL rule becomes “part of the law of the land” and has the same status as a
statutory rule, i.e., on the second tier in the hierarchy of rules in the Philippine legal system.

International Philippine
Jus cogens
Consti-
Legal System tution Legal System

Ordinary
customary rules;
Treaties; Statutes
Executive
agreements

General principles Executive

of law regulations

5.3. Upon the domestication of a PIL rule embodied in a treaty (as the term is used in its
restrictive sense under Philippine law) into the Philippine legal system, the domesticated PIL
rule has the same status as a statutory rule, i.e., on the second tier in the hierarchy of rules in
the Philippine legal system. According to the Supreme Court, “treaties form part of the law of
the land.”24 “Treaties…have the impact of statutory law in the Philippines.” 25

5.4. Upon the domestication of a PIL rule embodied in an executive agreement into the
Philippine legal system, the domesticated PIL rule has the same status as an executive
regulation, i.e., on the third tier in the hierarchy of rules in the Philippine legal system.

23
Ram Singh v. Insular Collector of Customs, G.R. No. 13669, October 25, 1918; Nicolas v. Romulo, G.R. No.
175888, February 11, 2009.
24
Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, January 11, 2016.
25
J. Brion, Separate Concurring Opinion in Intellectual Property Association of the Philippines v. Ochoa, G.R.
No. 204605, July 19, 2016.

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 Palacios, International Law Solutions to Philippine Law Problems

According to the Supreme Court, “executive agreements…are at the level of implementing

rules and regulations or administrative orders in the domestic sphere.” 26

Step 6. Determine the effect of the domesticated PIL rule on Philippine legal rules that
came from domestic sources.

6.1. In Step 1, it was important to (1) determine the legal rights and obligations created by the
PIL rule under the international legal system; and (2) identify the bearers of these legal rights
and obligations under the international legal system (e.g., the Philippine State is the bearer of
the international obligation created by the PIL rule).

6.2. In Step 6, it is important to (1) determine the legal rights and obligations created by the
domesticated PIL rule under the Philippine legal system; and (2) identify the bearers of these
legal rights and obligations under the Philippine legal system (e.g., a specific agency in the
Executive Department is the bearer of the Philippine obligation created by the domesticated
PIL rule).

6.3. First possible effect (fill a gap), If the domesticated PIL rule concerns a matter that is not
covered by Philippine legal rules that came from domestic sources (e.g., the Constitution or
statutes), then the domesticated PIL rule may be said to have filled a gap in the Philippine
legal system. A domesticated PIL rule that fills a gap in the Philippine legal system may
create new Philippine legal rights or obligations. In Republic v. Sandiganbayan:27

1. During the period of February 25-March 24, 1986 (known as the interregnum), there
was a gap in the Philippine legal rules protecting individuals against unreasonable
searches and seizures, as there was no Constitution, Bill of Rights, or Exclusionary
Rule in force in the Philippines at the time;
2. Certain PIL rules, in the form of customary law reflected in the Universal Declaration
of Human Rights and of treaty law embodied in the International Covenant on Civil
and Political Rights, protected individuals against unreasonable searches and seizures;
3. These PIL rules were binding on the Philippine State under the international legal
system; and
4. These PIL rules filled the temporary gap in the Philippine legal system (when there
were no Philippine legal rules protecting individuals against unreasonable searches
and seizures) by creating a new Philippine legal right that protected individuals
against unreasonable searches and seizures.

6.4. Second possible effect (conflict). If the domesticated PIL rule concerns a matter that is
covered by a Philippine legal rule that came from a domestic source, and the domesticated
PIL rule conflicts with such Philippine legal rule, then the conflict between the domesticated
PIL rule and the Philippine rule should be resolved by analyzing the conflict and applying the
appropriate rules of statutory interpretation in the sequence described below. According to
the Supreme Court, “rules of [statutory] interpretation apply even though one of the sources

26
J. Brion, Separate Concurring Opinion in Intellectual Property Association of the Philippines v. Ochoa, G.R.
No. 204605, July 19, 2016.
27
G.R. No. 104768, July 21, 2003.

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 Palacios, International Law Solutions to Philippine Law Problems

is a treaty and not simply a statute.”28 This sequential application of rules of statutory
interpretation is called “sequential analysis.”

1. Type (lex superior derogat inferiori). First, (1) determine what type of domesticated
PIL rule is involved (i.e., whether it is a customary rule, a treaty rule, or an executive
agreement rule); (2) determine what type of Philippine legal rule conflicts with the
domesticated PIL rule (i.e., whether it is a constitutional rule, a statutory rule, or a rule
on the third tier of the hierarchy of rules in the Philippine legal system); and (3) apply
the principle of lex superior derogat inferiori.

a. Any PIL rule versus a constitutional rule. If a domesticated PIL rule of any type
conflicts with a constitutional rule, then the constitutional rule shall prevail as it
occupies a higher tier in the hierarchy of rules in the Philippine legal system.
b. Customary or treaty rule versus a statutory rule. If a domesticated customary or
treaty rule conflicts with a statutory rule, then the conflict cannot be resolved on
the basis of the principle of lex superior derogat inferiori because the
domesticated customary or treaty rule and the statutory rule occupy the same tier
in the hierarchy of rules in the Philippine legal system.
c. Customary or treaty rule versus an executive regulation rule. If a domesticated
customary or treaty rule conflicts with an executive regulation, then the
domesticated customary or treaty rule shall prevail as it occupies a higher tier in
the hierarchy of rules in the Philippine legal system.
d. Executive agreement rule versus a statutory rule. If a domesticated executive
agreement rule conflicts with a statutory rule, then the statutory rule shall prevail
as it occupies a higher tier in the hierarchy of rules in the Philippine legal system.
“[L]ike implementing rules of executive agencies, executive agreements cannot
amend or repeal prior laws but must comply with the laws they implement.”29
“Executive agreements - which are at the level of implementing rules and
regulations or administrative orders in the domestic sphere - … cannot contravene
or amend statutory enactments and treaties.”30
e. Executive agreement rule versus an executive regulation rule. If a domesticated
executive agreement rule conflicts with an executive regulation, then the conflict
cannot be resolved on the basis of the principle of lex superior derogat inferiori
because the domesticated executive agreement rule and the executive regulation
occupy the same tier in the hierarchy of rules in the Philippine legal system.

2. Terms (lex specialis derogat generali). Second, if the conflict between the
domesticated PIL rule and the existing Philippine rule cannot be resolved on the basis
of the principle of lex superior derogat legi inferiori because they occupy the same
tier in the hierarchy of rules in the Philippine legal system, then (1) determine the
degree of specificity of their respective terms and provisions; and (2) apply the
principle of lex specialis derogat generali.

28
Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, January 11, 2016.
29
J. Carpio, Dissenting Opinion in Suplico v. National Economic and Development Authority, G.R. No.
178830, July 14, 2008.
30
J. Brion, Separate Concurring Opinion in Intellectual Property Association of the Philippines v. Ochoa, G.R.
No. 204605, July 19, 2016.

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 Palacios, International Law Solutions to Philippine Law Problems

a. Lex specialis v. Lex posterior. The Supreme Court has applied a form of
“sequential analysis" in resolving a conflict between a Philippine legal rule and a
domesticated PIL rule: “Ordinarily, the later provision governs over the earlier
one. In this case, however, the provisions of the…Treaty are more specific than
the provisions found in the [Philippine statute].”31
b. More specific terms. The domesticated PIL rule shall prevail over the Philippine
legal rule where (i) the terms and provisions of a domesticated customary or treaty
rule are more specific than those of a conflicting statutory rule, or (ii) the terms
and provisions of a domesticated executive agreement rule are more specific than
those of a conflicting executive regulation.
c. Less specific terms. The Philippine legal rule shall prevail over the domesticated
PIL rule where (i) the terms and provisions of a domesticated customary or treaty
rule are less specific than those of a conflicting statutory rule, or (ii) the terms and
provisions of a domesticated executive agreement rule are less specific than those
of a conflicting executive regulation.
d. Same degree of specificity. The conflict cannot be resolved on the basis of the
principle of lex specialis derogat generali where (i) the terms and provisions of a
domesticated customary or treaty rule are of the same degree of specificity as
those of a conflicting statutory rule, or (ii) the terms and provisions of a
domesticated executive agreement rule are of the same degree of specificity as
those of a conflicting executive regulation.

3. Time (lex posterior derogat priori). Third, if the conflict between the domesticated
PIL rule and the existing Philippine rule cannot be resolved on the basis of the
principle of lex specialis derogat generali because their terms and provisions are of
the same degree of specificity, then (1) determine which came later in time; and
(2) apply the principle of lex posterior derogat priori. “The later provision governs
over the earlier one.”32

a. Later in time. The domesticated PIL rule shall prevail over the Philippine legal
rule where (i) a domesticated customary or treaty rule (with terms and
provisions having the same degree of specificity as those of a conflicting
statutory rule) took effect later than the conflicting statutory rule, or (ii) a
domesticated executive agreement rule (with terms and provisions having the
same degree of specificity as those of a conflicting executive regulation) took
effect later than the conflicting executive regulation.
b. Earlier in time. The Philippine legal rule shall prevail over the domesticated
PIL rule where (i) a domesticated customary or treaty rule (with terms and
provisions having the same degree of specificity as those of a conflicting
statutory rule) took effect earlier than the conflicting statutory rule, or (ii) a
domesticated executive agreement rule (with terms and provisions having the
same degree of specificity as those of a conflicting executive regulation) took
effect earlier than the conflicting executive regulation.

31
Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, January 11, 2016.
32
Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, January 11, 2016.

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 Palacios, International Law Solutions to Philippine Law Problems

4. Sequential Analysis Matrix. Below is a matrix illustrating the possible outcomes for
resolving a conflict between a domesticated PIL rule and an existing Philippine rule
on the basis of “sequential analysis.”

6.5. Third possible effect (re-interpretation). It is possible that a domesticated PIL rule that
concerns a matter that is covered by the existing Philippine legal rules, will result in the re-
interpretation of such Philippine rules. Such a re-interpretation of existing Philippine legal
rules may strengthen the existing Philippine legal rights, or clarify the existing Philippine
legal obligations, that arise from these existing Philippine legal rules.

Step 7. Determine whether the domesticated PIL rule can be applied in a Philippine
case to obtain the desired relief under the Philippine legal system.

7.1. Prohibit. The domesticated PIL rule can be applied in a Philippine case as basis to
prohibit certain actions by a government or private entity.

1. In United States of America v. Judge Guinto,33 the Supreme Court applied

domesticated treaty rules embodied in the Philippines-US Military Bases Agreement
to prohibit a trial judge from trying a civil action on the ground that the defendants
were covered by the immunity of a foreign State.

33
G.R. No. 76607, February 26, 1990.

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7.2. Compel. The domesticated PIL rule can be applied as basis to compel a government or
private entity to perform certain actions.

1. In Deutsche Bank AG Manila Branch v. Commissioner of Internal Revenue,34 the

Supreme Court applied domesticated PIL rules embodied in the Philippines-Germany
Tax Treaty to compel the BIR to refund the taxpayer or issue a tax credit certificate.
2. In Nicolas v. Romulo,35 the Supreme Court applied domesticated PIL rules embodied
in the Philippines-US Visiting Forces Agreement to compel the Secretary of Foreign
Affairs to negotiate with the US on appropriate detention facilities for US military
personnel convicted of committing a Philippine crime.
3. In Republic v. Sandiganbayan,36 the Supreme Court applied domesticated customary
rules reflected in the Universal Declaration of Human Rights and domesticated treaty
rules embodied in the International Covenant on Civil and Political Rights, to compel
public prosecutors to return to an accused certain personal items that were seized in a
manner contrary to the domesticated PIL rules.

7.3. Authorize. The domesticated PIL rule can be applied as basis to authorize a government
or private entity to perform certain actions.

1. In Air Canada v. Collector of Internal Revenue,37 the Supreme Court applied

domesticated PIL rules embodied in the Philippines-Canada Tax Treaty to authorize
the denial of a taxpayer’s tax refund claim.
2. In Intellectual Property Association of the Philippines v. Ochoa,38 the Supreme Court
applied domesticated PIL rules embodied in the Madrid Protocol to authorize the
Intellectual Property Office to implement the said protocol.
3. In Government of Hongkong Special Administrative Region v. Muñoz,39 the Supreme
Court applied domesticated PIL rules embodied in the Philippines-Hong Kong
Extradition Agreement to authorize the exclusion of certain charges from the criminal
case against the person sought to be extradited.
4. In Santos III v. Northwest Orient Airlines,40 the Supreme Court applied domesticated
PIL rules embodied in the Warsaw Convention to authorize a trial court to dismiss an
action concerning international air carriage on the ground of lack of subject-matter
jurisdiction.

7.4. Status. The domesticated PIL rule can be used as basis to declare the legal validity (or
invalidity) of certain actions.

1. In Nicolas v. Romulo,41 the Supreme Court applied domesticated PIL rules embodied
in the Philippines-US Visiting Forces Agreement as basis to invalidate (i.e., “not in
accordance with the VFA”) the Romulo-Kenney agreements on the detention of US
military personnel convicted of committing a Philippine crime.

34
G.R. No. 188550, August 19, 2013.
35
G.R. No. 175888, February 11, 2009.
36
G.R. No. 104768, July 21, 2003.
37
G.R. No. 169507, January 11, 2016.
38
G.R. No. 204605, July 19, 2016.
39
G.R. No. 207342, August 16, 2016.
40
G.R. No. 101538, June 23, 1992.
41
G.R. No. 175888, February 11, 2009.

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2. In Department of Foreign Affairs v. National Labor Relations Commission, 42 the

Supreme Court applied domesticated PIL rules embodied in the Asian Development
Bank Charter and Philippines-ADB Headquarters Agreement to void a decision of a
labor arbiter against the ADB.

42
G.R. No. 113191, September 18, 1996.

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