I. GENERAL PRINCIPLES international entities vs.

private persons; as to enforcement,

A. International Law defined. international sanctions vs. sheriff/police.

1. Traditional: That branch of public law which regulates the relations 2. International Morality or Ethics. Principles which govern relations
of States and of other entities which have been granted international of States from the standpoint of conscience, morality, justice and
personality. [This definition focuses on subjects, which are entities
which possess international personality and with rights and obligations 3. International Comity. Rules of politeness/courtesy observed by
recognized under international law, as against objects, which are States in their relations with other States.
persons or things in respect of which rights are held and obligations
assumed by the subjects of international law.] 4. International Diplomacy. Objects of international policy and the
conduct of foreign affairs.
2. Modem: The law that deals with the conduct of States and
international organizations, their relations with each other and, in 5. International Administrative Law. Body of laws which regulate the
certain circumstances, their relations with persons, natural or juridical relations and activities of national and international agencies with
[American Third Restatement] respect to their material and intellectual interests which have received
international recognition.
B. Sources of International Law
Relationship with Municipal Law.
1. The Law of Nature School. There is a natural and universal principle
of right and wrong, independent of mutual intercourse or compact, 1. Monist vs. Dualist.
which can be discovered and recognized by every individual through To monists, there is no substantial distinction between
the use of his reason and conscience. Since individuals compose the international law and municipal law. But to dualists, the distinctions lie
State whose will is but the collective will of the inhabitants, the State in that ML is issued by a political superior for observance by those
also becomes bound by the law of nature. under its authority, while IL is not imposed but adopted by states as a
common rule of action; ML consists of enactments of the law-making
2. The Positivist School. The binding force of international law is authority, while IL is derived from such sources as international
derived from the agreement of the States to be bound by it. In this customs, conventions or general principles of law; ML regulates
context, international law is not a law of subordination but of relations of individuals among themselves, while IL applies to
coordination. relations between states and international persons; violations of ML
are redressed through local judicial and administrative processes, while
3. The Eclectic or Grotian School. In so far as it conforms to the in IL, they are resolved through state- to-state transactions; and
dictates of right reason, the voluntary law may be said to blend with breaches of ML entail individual responsibility, while in IL there is
the natural law and be, indeed, an expression of it. In case of conflict, collective responsibility.
the natural law prevails, being the more fundamental law.
2. Incorporation v. Transformation.
C. Public International Law distinguished from: a) The doctrine of incorporation is expressed in Sec. 2, Art. II,
1. Private International Law. As to nature, international vs. municipal; Philippine Constitution, as follows: “The Philippines
as to remedies, international modes vs. local tribunals; as to parties, renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as Republic of the Philippines, both statutes and treaties may be
part of the law of the land, and adheres to the policy of peace, equality, invalidated if they are in conflict with the Constitution.
justice, freedom, cooperation and amity with all nations”. See: ii) If the conflict is with a statute: The doctrine of
Kuroda vs. Jalandoni, 83 Phil. 171 (although the Philippines incorporation, as applied in most countries, decrees that rules
of international law are given equal standing with, but are not
was not a signatory to the Hague and Geneva Conventions,
superior to, national legislative enactments. A treaty may repeal
international jurisprudence is automatically incorporated in Philippine
a statute, and a statute may repeal a treaty; thus, the principle of
law, thus making war crimes punishable in the Philippines); Lo Ching
lex posterior derogat priori, that which comes last in time, will
vs. Archbishop of Manila, 81 Phil 601; Borovsky vs. Commissioner of
usually be upheld by the municipal tribunal. See also Ichong
Immigration, G.R. No. L-4362 (1951) (where prolonged detention of a
vs. Hernandez, 101 Phil. 115, where it was held that the Retail
stateless alien pending deportation was deemed illegal, citing the
Trade Nationalization Law prevails over the Treaty of Amity
Universal Declaration of Human Rights which is incorporated in
with China and the Universal Declaration of Human Rights,
Philippine law).
because the law was passed in the exercise of the police power
b) The doctrine of transformation requires the enactment by the
of the State, and police power cannot be bargained away
legislative body of such international law principles as are sought to be
through the medium of a treaty or a contract.
part of municipal law. See: Laguna Lake Development Authority vs.
Court of Appeals, 231SCRA 292 (where it was declared that Sec. 6,
Art. II, Philippine Constitution, which reads: “The state shall b) On the international sphere, with an international tribunal deciding:
protect and advance the right of the people to a international law is superior to municipal law, because international
balanced and healthful ecology in accord with the law   provides   the   standard   by   which   to   determine   the   legality   of   a
rhythm and harmony of nature”, was taken from the State’s conduct.
Universal Declaration of Human Rights and the Alma
Conference Declaration of 1978 recognizing health as a fundamental F. Sources of International Law.
human right. Thus, the authority of LLDA to issue a cease and desist On the domestic sphere, the constitution, legislative enactments and
order to prevent the pollution of Marilao River was upheld on the basis case law (stare decisis). On the international plane, it is a bit
of the principle of necessary implication. complicated because there is no body likened to a national legislature,
no fundamental law, and the doctrine of precedents is not applicable.
3. Conflict between International Law and Municipal Law.
a) On the domestic sphere, with a local court deciding: 1. However, the most authoritative enumeration is found in Art. 38,
Statute of the International Court of Justice, which provides that the
i) If the conflict is with the Constitution: uphold the Court, whose function is to decide in accordance with International
Constitution. [See Sec. 5(2)(a), Art. VIII, Philippine Law such disputes as are submitted to it, shall apply:
Constitution, which provides that the Supreme Court has the
power to declare a treaty or executive agreement As Primary Sources:
unconstitutional.] In Secretary of Justice v. Judge Lantion, G.R. a) International Treaties and Conventions, whether general or
No. 139465, January 18, 2000, it was held that in states where particular, establishing rules expressly recognized by the
the Constitution is the highest law of the land, such as the contesting states.
b) International Customs, as evidence of a general practice
accepted as binding law through persistent usage over a long
 period of time, e.g., angary, exemption of unarmed fishing uncompromising, certain) norm of international law. A
vessel from capture. It is necessary, however, that the custom peremptory norm is a norm accepted and recognized by the
be [i] prevailing practice by a number of states; [ii] repeated international community of states as a rule, from which no
over a considerable period of time; and [iii] attended by opinio derogation is permitted and which can be modified only by a
juris or a sense of legal obligation. subsequent norm having the same character. Examples are
c) General Principles of Law. These are rules derived mainly slave trade, piracy, and terrorism. See Human Rights Cases vs.
from natural law, observed and recognized by civilized nations, Marcos, where it was held that official torture of prisoners/
e.g., res judicata, prescription, pacta sunt servanda and dissenters was a violation of the principle of jus cogens.
estoppel. See Agustin vs. Edu, where the doctrine of pacta sunt
servanda was applied by the Court relative to the validity of the Schroeder v bissel
administrative rule requiring the use of early warning device,
as part of the Vienna Convention on Road Signs and Signals. If we assume for the present that the national legislation has, by
[Note: To these may be added the principle of ex aequo et bono its terms, made the acts complained of a crime against the
(what is good and just), provided that the parties to the dispute United States even when committed on the high seas by foreign
agree thereto, as provided in Art. 38 (1), Statute of the nationals upon a ship of foreign registry, then there is no
International Court of Justice.] discretion vested in the federal court, once it obtains
jurisdiction, to decline enforcement. International practice is
As Secondary Sources: law only in so far as we adopt it, and like all common or statute
a) Judicial Decisions, generally of international tribunals, the law it bends to the will of the Congress. It is not the function of
most authoritative being the International Court of Justice. courts to annul legislation; it is their duty to interpret and by
They are not really sources, but “subsidiary means” for their judicial decrees to enforce it and even when an act of
finding what the law is, and whether a norm Congress is declared invalid, it is only because the basic law is
has been accepted as a rule of international being enforced in that declaration. There is one ground only
upon which a federal court may refuse to enforce an act of
law. The decision of a national court may be used Congress and that is when the act is held to be unconstitutional.
depending upon the prestige and perceived impartiality of the The act may contravene recognized principles of international
domestic court, not being in conflict with the decisions of comity, but that affords no more basis for judicial disregard of
international tribunals, and its admissibility in the forum where it than it does for executive disregard of it. These libels,
it is cited. therefore, cannot be attacked upon the ground that the
b) Writings of publicists, which must be fair and unbiased territorial jurisdiction of the United States cannot be extended
representation of international law by acknowledged authorities beyond the three-mile sea zone under international law.
in the field.

2. Interpretation of Art. 38. Although the provision is silent on the

question of whether the three primary sources have the same hierarchic
value, by practice, treaties take precedence over customs, and customs
over general principles of law, except:
a) The principle of ius coaens: Customary international law
which has the status of a peremptory (absolute,
 But a case to be decided ex aequo et bono, overrides the strict rule of
law and requires instead a decision based on what is fair and just given
the circumstances.
Often contrasted with equity although the latter is a creature of legal
systems with formal rules of engagement and with some limitations,
whereas ex aequo et bono is a commitment to resolve a dispute
without being bound by law.

Latin for "according to the right and good," the term (also known as
amiable compositeur) refers to a tribunal's consideration of a dispute
according to what is fair and just given the particular circumstances,
rather than strictly according to the rule of law. This type of consideration,
primarily utilized in international law, typically requires the consent of all
parties. For example, parties may agree to have their disputes resolved
ex aequo et bono in:

1. Obligations erga omnes

2. Jus Cogens

3. Concept of aequo et bono

Something to be decided ex aequo et bono is something that is to be
decided by principles of what is fair and just.
Most legal cases are decided on the strict rule of law.

For example, a contract will be normally upheld and enforced by the legal
system no matter how "unfair" it may prove to be.