International law; how it becomes part of domestic law.
Q — How may international law become a part of domestic law? Explain.
ANS: Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. 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 Article VII, Section 21 of the Constitution which provides that “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.” 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. (Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G.R. No. 173034, October 19, 2007).
Q — May generally accepted principles of international law form part of the law of the land even if they do not derive from treaty obligations? Explain.
ANS: Yes. Generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination of two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005, 455 SCRA 397).
Q — State the concept of the term “generally accepted principles of international law” and give examples.
ANS: “Generally accepted principles of international law” refers to norms of general or customary international law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity, a person’s right to life, liberty and due process, and pacta sunt servanda, among others. The concept of “generally accepted principles of law” has also been depicted in this wise:
Some legal scholars and judges upon certain “general principles of law” as a primary source of international law because they have the “character of jus rationale” and are “valid through all kinds of human societies.” (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966, I.C.J. 296). O’Conell holds that certain principles are part of international law because they are “basic to legal systems generally” and hence part of the jus gentium. These principles, he believes, are established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. (Pharmaceutical & Health Care Assn. of the Phil. v. Sec. of Health Duque, et al., G.R. No. 173034, October 9, 2007).
Q — What is customary international law? Explain.
ANS: Custom or customary international law means “a general and consistent practice of states followed by them from a sense of legal obligation (opinion juris)”. This statement contains the two basic elements of custom: the material factor, that is, how states behave, and the psychological or subjective factor, that is, why they behave the way they do.
The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long.
Duration therefore is not the most important element. More important is the consistency and the generality of the practice.
Once the existence of state practice has been established it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris or the belief that a certain form of behavior is obligatory, is what makes practice an international rule. Without it, practice is not law. (Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G. R. No. 173034, October 9, 2007).
Q — What is a soft law? Is it an international law? Explain.
ANS: Soft law is an expression of non-binding norms, principles and practices that influence state behavior. (David Fidler, Development Involving SARS, International Law & Infections Disease Control at the Fifty-Six Meeting of the World Health Assembly, June 2003, ASIL; Pharmaceutical & Health Care Assn. of the Phils. v. Health Secretary Duque, et al., G.R. No. 173034, October 9, 2007). It does not fall under the international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice.
Q — Give examples of soft law.
ANS: Certain declarations and resolutions of the UN General Assembly fall under this category. (Louis Henkins, et al., International Law, Cases and Materials, 2nd Ed.). The UN Declaration of Human Rights is an example. This was applied in Government of Hongkong Special Administrative Region v. Olalia; Mejoff v. Director of Prisons; 90 Phil. 70 (1951); Mijares v. Ranada; Shangri-la International Hotel Management Ltd. v. Developers Group of Companies Inc., G.R. No. 159938, March 31, 2006, 486 SCRA 405).
It is resorted to in order to reflect and respond to the changing needs and demands of constituents of certain international organizations like the WHO.