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GENERAL PRINCIPLES

Green Hackworth has defined Public International Law as a branch of


public law that regulates the relationship of states and other entities that
have been granted legal or international personality.

The conflict between states gave rise to the creation of institutions to


prevent the recurrence of war. Though every nation has sovereignty, there
must still be a rule of conduct in the international sphere. This led to the
creation of the United Nations after World War II as an international agency
for the maintenance of peace.

The Philippine Constitution recognizes Public International Law


particularly with possible conflicts between the two. For instance, when the
Convention on the Law of the Sea was ratified, the government included a
reservation. Most notably, however, is the Incorporation Clause under Article
II, Section 2 of the 1987 Constitution stating that The Philippines x x x
adopts the generally accepted principles of international law as part of the
law of the land x x x.

X
X
X
X
X
X

The relationship of Public International Law and Municipal Law are governed
by two theories. The Monist Theory states that there is no difference
between the two laws, however if there is a perceived conflict, there must an
effort to harmonize the two. On the other hand, the Dualist Theory posits
that there is a dichotomy of the two laws.

The constitutional policy of a self-reliant and independent national


economy does not necessarily rule out the entry of foreign
investments, goods and services. It contemplates neither economic
seclusion nor mendicancy in the international community. 1

With respect to right reserved to the State, the treaty-making power is


not limited to what may be done by an unaided act of Congress.

1 SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and
MARK B. JIMENEZ, respondents. [G.R. No. 139465. January 18, 2000]
It is said that a treaty cannot be valid if it infringes the Constitution,
that there are limits, therefore, to the treaty-making power, and that
one such limit is that what an act of Congress could not do unaided, in
derogation of the powers reserved to the States, a treaty cannot do.2

A rule of equality thus established stands on the same footing of


supremacy as the federal Constitution and laws, cannot be rendered
nugatory in any part of the United States by municipal ordinances or
state laws, operates without the aid of legislation, state or national,
and is to be applied and given authoritative effect by the courts. 3

If, however, the court has no option to refuse the enforcement of


legislation in contravention of principles of international law, it does
not follow that in construing the terms and provisions of a statute it
may not assume that such principles were on the national conscience
and that the congressional act did not deliberately intend to infringe
them. In other words, unless it unmistakably appears that a
congressional act was intended to be in disregard of a principle of
international comity, the presumption is that it was intended to be in
conformity with it. 4

There is an absence of a centralized legislative, executive and judicial


structure in public international law, there is no single body able to legislate
and there is no system of courts with compulsive power to decide what the
law is nor is there a centralized repository of international law. 5 Despite such
absence, sources of the law can be found which can be classified as either
formal sources, those arising from treaties or international conventions,
international customary law, and general principles of law, or material
sources, such as decisions of courts and writings of notable publicist.

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 (opinio juris). 6

2 Missouri vs. Holland

3 Asakura v. City of Seattle, 265 U.S. 332

4 THE OVER THE TOP, (D.CONN. 1925)

5 Introduction to Public International Law, Joaquin G. Bernas, S J., pg. 8

6 Pharmaceutical v. DOH
Where there is no treaty and no controlling executive or legislative act
or judicial decision, resort must be had to the customs and usages of
civilized nations, and, as evidence of these, to the works of jurists and
commentators, not for the speculations of their authors concerning
what the law ought to be, but for trustworthy evidence of what the law
really is.7

In order to deduce the existence of customary rules, the Court deems it


sufficient that the conduct of states should, in general, be consistent
with such rules, and that instances of state conduct inconsistent with a
given rule should generally have been treated as breaches of that rule,
not as indications of the recognition of a new rule.8

Although the passage of only a short period of time is not necessarily,


or of itself, a bar to the formation of a new rule of customary
international law on the basis of what was purely a conventional rule,
an indispensable requirement would be that within the period in
question, short though it might be, State practice, including that of
states whose interests are specially affected, should have been both
extensive and virtually uniform in the sense of the provision invoked
and should moreover have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is involved.9

7 The Paquete Habana, 175 U.S. 677 (1900)

8 Nicaragua v. United States

9 North Sea Continental Shelf Cases,

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