Public and Private International Law my signature. Where should we do the signing?

Philippines or China?
Public International Law is the law that governs the
relationship between and among states,
international organizations, and persons.
Private International Law, more commonly referred
to as conflict of laws, relates to the overlapping
jurisdictions of domestic legal systems.
Atty. Reyes, a female, went to Las Vegas to marry
her long-time American girlfriend. Is the wedding
valid?
What if Atty. Reyes obtains American citizenship
AFTER the marriage?

In the Philippines, the following jurisdictional rules International Law and Municipal Law
apply (Choice of Law):
1. Penal laws follow territoriality rule (Art. 14 There are two basic theories on the relationship
of the Civil Code) between international and domestic law.
2. Civil capacity and duties follow nationality
rule (Article 15 of the Civil Code) Monist Theory Dualist Theory
3. Real Property and Personal Property follows International law and Assumes that
the lex loci rei sitae rule (Article 16 of the municipal law belong international law and
Civil Code) to only one system of municipal law are two
4. Laws of formality of wills follows lex loci law. separate legal systems
contractus (law of the where the will is  Municipal law which exists
made) but laws on the validity of wills subsumes and independently of each
follows nationality rule (Article 16 of the is superior to other, each with
Civil Code). international separate basis and
5. Contracts are governed by lex loci law; and rule-making authority.
contractus (Article 17 of the Civil Code)  International
law is superior  Different on
Exercise: to municipal sources:
A, an American citizen committed a crime in the law. Municipal law
Philippines. Which court has jurisdiction? as a product of
local custom,
In her last will and testament, B bestowed upon and
her daughter, C a condominium unit located in the international
Singapore. Which court should the last will be law as treaties
questioned? and custom
grown among
I went to South Korea last week. I ran out of money states.
so I sold my car, located in the Philippines to my  Different on
Korean tour guide. Which laws should I refer to regulation:
when I am drafting the Deed of Sale? Municipal law
regulates
Assuming the Deed of Sale is valid, and I am obliged relations
to amend the registration in the OC/CR to the between
name of the Korean Tour Guide, what laws should I individual
use? persons within
as state, while
I am in the Philippines, and I want to invest on a international
tech business in China. The owner of the Chinese law regulates
business prepared the transaction documents for
 relations
between states.
 Different on
substance:
Municipal law
as the law of
sovereign over
individuals, and
International
law as law
between
sovereign
states.
#10: Across various national legal systems, how is
the effect of international law regulated on
national plane?
States are required to perform their international
obligations in good faith, but they are at liberty to
decide on the modalities of such performance
within their domestic legal systems.
Tanada v. Angara:
In its Declaration of Principles and state policies,
the Constitution “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. By the doctrine of incorporation,
the country is bound by generally accepted
principles of law, which are considered
automatically part of our own laws.
Pacta sunt servanda – international agreements
must be performed in good faith. A treaty is not a
mere moral obligation but creates a legally binding
obligation on the parties.
A state which has contracted valid international
obligations is bound to make in its legislations such
modifications as may be necessary to ensure the
fulfillment of the obligations undertaken.
What is the rationale of the Philippines [and all
other states] in subscribing to International Law?
When the Philippines joined the United Nations as
one of its 51 charter members, it consented to
restrict its sovereign rights under the "concept of
sovereignty as auto-limitation.”
Concept of sovereignty as auto-limitation
Apart from the UN Treaty, the Philippines has
entered into many other international pacts —
both bilateral and multilateral — that involve
limitations on Philippine sovereignty the
Philippines has effectively agreed to limit the
exercise of its sovereign powers of taxation,
eminent domain and police power. The underlying
consideration in this partial surrender of
sovereignty is the reciprocal commitment of the
other contracting states in granting the same
privilege and immunities to the Philippines, its
officials and its citizens.
As discussed in Tanada v Angara, the Doctrine of
Incorporation is based on what law?
[Article II, Section 2 of the Constitution]
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.
Pursuant to Article II, Section 2 of the Constitution,
does the Philippines adopt monist or dualist view?
Lim v. Executive Secretary
From the perspective of public international law, a
treaty is favored over municipal law pursuant to
the principle of pacta sunt servanda. Further, a
party to a treaty is not allowed to “invoke the
provisions of its internal law as justification for its
failure to perform a treaty.”
Ichong v. Hernandez ruled that the provisions of a
treaty are always subject to qualification or
amendment by a subsequent law, or that it is
subject to the police power of the State.
Gonzales v. Hechanova, it was held that our
Constitution authorizes the nullification of a treaty,
not only when it conflicts with the fundamental Rights during the interregnum. Nevertheless, the
law, but, also, when it runs counter to an act of Filipino people continued to enjoy, under the ICCPR
Congress. and the UDHR, almost the same rights found in the
Bill of Rights of the 1973 Constitution.
Dualist view - Assumes that international law and
municipal law are two separate legal systems. The The revolutionary government, after installing itself
implication is that International law are given as the de jure government, assumed responsibility
equal standing with, but are not superior to for the State’s good faith compliance with the
national legislative enactments. Covenant to which the Philippines is a signatory.
Article 2(1) of the Covenant requires each signatory
Since international law and municipal law are of State “to respect and to ensure to all individuals
equal standing, what law should prevail in case of within its territory and subject to its jurisdiction the
conflict? rights recognized in the present Covenant.” Under
Article 17(1) of the Covenant, the revolutionary
Secretary of Justice v. Lantion government had the duty to insure that “[n]o one
 If conflict is with the Constitution: [Sec. 5(2) shall be subjected to arbitrary or unlawful
(a), Art. VIII, Philippine Constitution] which interference with his privacy, family, home or
provides that Supreme Court has the power correspondence.”
to declare a treaty or executive agreement
unconstitutional.
 If the conflict is with a statute: Doctrine of
Incorporation. rules of international law
form part of the law of the land and no
further legislative action is needed to make
such rules applicable in the domestic
sphere.
o Doctrine of incorporation: applied
whenever municipal tribunals (or
local courts) are confronted with
situations in which there appears to
be a conflict between a rule of
international law and the provisions
of the constitution or statute of the
local state
 Efforts should be exerted so
as to give effect to both
pursuant to Art. 2 Section 2
of the Constitution.
 If conflict is irreconcilable,
municipal law should be
upheld by the municipal
courts.

What is the implication of giving municipal and

international law equal standing?

Republic v Sandiganbayan: The government in

power was concededly a revolutionary government
bound by no constitution, there was no Bill of

SOURCES OF INTERNATIONAL LAW
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.
This provision shall not prejudice the power of the
Court to decide a case ex aequo et bono if the
parties agree thereto.
Treaties or International Conventions
Generally governed by the Vienna Convention on
the Law of Treaties.
On the Philippine Laws:
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.
EXCEPT:
 The Art. 7, Sec.20 states that, the President
may contract or guarantee foreign loans on
behalf of the Republic of the Philippines
o With the prior concurrence of the
Monetary Board; and
o Subject to the limitations provided
by law.
This is an express recognition of the role of the
President of being the sole organ in the conduct of
foreign relations.
In specific provisions, the President's power is also
limited, or at least shared, as in Section 2 of Article
II on the conduct of war; Sections 20 and 21 of
Article VII on foreign loans, treaties, and
international agreements; Sections 4 (2) and 5 (2)
(a) of Article VIII on the judicial review of executive
acts.
Customs or Customary International Law
Customary law refers to evidence of a general
practice accepted as law.
State Practice
 The initial factor for determining the
existence of custom is the actual behavior
of states (usus).
 This includes duration, consistency, and
generality of state practice.
 On Duration: Therefore, duration is not the
most important element. More important is
the consistency and generality of the rule.
(North Sea Continental Shelf Cases)
 On consistency: This means continuity and
repetition.
 On generality: The uniformity of practice
need not be complete but it must be
substantial.
Opinio Juris
As previously discussed, for an international rule to
be considered as customary law, it must be
established that such rule is being followed by
states because they consider it obligatory to
comply with such rules. (Pharmaceutical v. Duque)
Soft Law
"Soft law" does not fall into any of the categories of
international law set forth in Article 38, Chapter III
of the 1946 Statute of the International Court of
Justice. 32 It is, however, an expression of non-
binding norms, principles, and practices that
influence state behavior.
General principles of law recognized by civilized
nations
 Refers to the principles municipal law
common to the legal systems of the world.