International Law and Municipal Law:
Questions and Answers
Dualism Versus Monism
Q: What is the core problem when a domestic court faces a legal issue where one side
argues for municipal (domestic) law and the other for international law?
A: The core problem is deciding what the court should do when there's a conflict
between international law and domestic law, essentially asking: which one should
prevail?
Q: Are there different theories that attempt to answer this question about conflicting
laws?
A: Yes, there are varying theories that try to answer this question.
Q: What is the "dualist" or "pluralist theory"?
A: The dualist or pluralist theory states that international law and municipal law are
fundamentally different from each other.
Q: How do dualists say these two types of law differ in terms of their "sources"?
A: Dualists say that municipal law comes from local custom or legislation, while
international law comes from treaties and customs developed among states.
Q: How do dualists say these two types of law differ in terms of the "relations they
regulate"?
A: Dualists say that municipal law regulates relationships between individual people
within a state, whereas international law regulates relationships between different
states.
Q: How do dualists say these two types of law differ in terms of their "substance"?
A: Dualists say that municipal law is the law imposed by a sovereign ruler on
individuals, while international law is the law that exists between sovereign states.
Q: According to dualists, what happens when international law and municipal law
conflict?
A: For dualists, when international law and municipal law clash, municipal law must be
the one that takes precedence.
Q: What philosophical stance do dualists typically hold, and what do they emphasize
strongly?
A: Dualists are typically positivists, and they place a strong emphasis on the concept of
state sovereignty (a state's supreme power within its own borders).
Q: What theory is the opposite of dualism?
A: The opposite of the dualist theory is the monistic theory or simply monism.
QQ: What is the main idea behind the monistic theory?
A: Under this theory, international law and domestic law are considered to be part of
only one single system of law.
Q: Are there different versions of the monistic theory?
A: Yes, there are two main monist theories.
Q: What does the first monist theory propose regarding the relationship between
municipal and international law?
A: One monist theory suggests that municipal law includes and is superior to
international law.
Q: What does the second monist theory, supported by Kelsen, propose?
A: A second monist theory, championed by the legal theorist Kelsen, argues that
international law is superior to domestic law.
Q: What was the reasoning behind believing in the superiority of international law in
Kelsen's view?
A: The belief in international law's superiority came from a deep distrust of local rulers
and the conviction that international law could bring a sense of moral purpose to the
domestic order.
Municipal Law in International Law
Q: What is the generally accepted practice regarding the relationship between municipal
law and international law today?
A: Currently, the prevailing practice generally accepts dualism, at least in the sense that
it assumes there are two distinct legal systems.
Q: Do international treaties often acknowledge this dualistic view?
A: Yes, there are common provisions in treaties that recognize dualism.
Q: What does Article 27 of the Vienna Convention on the Law of Treaties state about a
state's internal law and treaty performance?
A: Article 27 of the Vienna Convention on the Law of Treaties clearly states: "A party
may not invoke the provisions of its internal law as justification for its failure to perform a
treaty."
Q: What does Article 13 of the Declaration on Rights and Duties of States, adopted in
1949, provide regarding a state's international obligations?
A: Article 13 of the Declaration on Rights and Duties of States, adopted by the
International Law Commission in 1949, says: "Every State has the duty to carry out in
good faith its obligations arising from treaties and other sources of international law, and
it may not invoke provisions in its constitutions or its laws as an excuse for failure to
perform this duty."
Q: What is the significance of these treaty provisions in relation to the dualist tradition?
A: These provisions align with the dualist tradition, preventing a state's domestic law
from being used as an excuse in the international arena.
Q: What does this mean for a state that has violated international law?
A: This means a state that has violated a rule of international law cannot justify its
actions by referring to its domestic law.
Q: What further obligation does a state have after entering an international agreement?
A: Furthermore, a state that has signed an international agreement must change its own
laws to match that agreement.
Q: What principle did the court emphasize in the Exchange of Greek and Turkish
Population Case?
A: In the Exchange of Greek and Turkish Population Case, the court highlighted a clear
principle: "according to which a state which has contracted a valid international
obligation is bound to make in its legislation such modifications as may be necessary to
ensure the fulfillment of the obligations undertaken."
Q: Despite dualism, are international and municipal legal systems completely separate?
A: No, even within dualism, the two systems are not completely separate.
Q: How does Article 38 of international law relate to domestic law?
A: Article 38 acknowledges that common principles found in domestic law can be part of
international law.
Q: What did the Barcelona Traction Case say about international courts considering
municipal law?
A: The Barcelona Traction Case stated that if a court ignored the relevant rules of
municipal law, it would "invite serious legal difficulties" and "lose touch with reality." It
clarified that international law refers to "rules generally accepted by municipal systems,"
not just the specific municipal law of one particular state.
Q: In situations where a court must decide a dispute based on domestic law rather than
international law, what must it do, as seen in the Brazilian Loans Case?
A: For a situation where the court must decide a dispute based on domestic law (as in
the Brazilian Loans Case), the court stated that "Once the Court has arrived at the
conclusion that it is necessary to apply the municipal law of a particular country, there
seems to be no doubt that it must seek to apply it as it would be applied in that country's
[courts]."
International Law in Domestic Law
Q: Does dualism also apply when international law enters the domestic legal system?
A: Yes, dualism also governs how international law enters the domestic sphere.
Q: What role does international law have in settling domestic conflicts if it's not part of
the domestic system?
A: International law, unless it becomes part of the domestic legal system, has no role in
resolving internal conflicts.
Q: For dualists, how does international law become part of domestic law?
A: For dualists, international law becomes part of domestic law through one of two
theories.
Q: What is "The Doctrine of Transformation"?
A: The Doctrine of Transformation is based on a strict dualist view where the two legal
systems (international and domestic) are distinct. For international law to become part
of domestic law, it must be expressly and specifically transformed into domestic law
through the proper constitutional process, like an act passed by Congress or
Parliament.
Q: What analogy helps explain the Doctrine of Transformation?
A: This doctrine is similar to how treaties work: treaties don't become part of a state's
law unless the state formally agrees to them.
Q: What is "The Doctrine of Incorporation"?
A: The Doctrine of Incorporation is explained by Blackstone, who said in his
commentary that "The law of nations, wherever any question arises which is properly
the object of its jurisdiction, is here adopted in its full extent by the common law and it is
held to be part of the law of the land." This means international law is automatically
considered part of a country's common law.
Q: How does Philippine law treat treaties as international law?
A: In Philippine law, treaties become part of the law of the land when the Senate agrees
to them, as stated in Article 7, Section 21 of the Constitution. This is the process for
making a treaty a binding domestic law.
Q: How does the Philippine Constitution handle customary international law and treaties
that have become customary law?
A: The Constitution, by stating that "the Philippines adopts the generally accepted
principles of international law as part of the law of the land," shows it follows the dualist
theory while also using the incorporation theory. This makes international law part of
domestic law.
Q: What is the implication of this constitutional provision for the Philippines regarding
international law?
A: This provision makes the Philippines one of the states that explicitly declare
international law also has the force of domestic law.
Q: How can Philippine courts use international law in domestic disputes?
A: Philippine courts can use international law to resolve domestic disputes in the same
way they would use other domestic laws like the Civil Code or the Penal Code.
Q: Which elements of international law become part of Philippine law through
incorporation via Article 2, Section 2?
A: According to Article 2, Section 2, treaties become part of Philippine law only through
ratification. The principle of incorporation specifically applies to customary law and to
treaties that have become part of customary law.
Q: Is the distinction between treaties and customary law always clear in Philippine
Supreme Court decisions?
A: No, the distinction between how treaties and customary law are incorporated is
sometimes unclear in some Philippine Supreme Court decisions.
Q: Have there been instances where the Philippine Supreme Court used international
law to solve domestic problems?
A: Yes, there have been times when the Supreme Court used international law to
resolve domestic issues.
Q: What happened in the case of Mejoff Versus Director of Prisons?
A: In Mejoff Versus Director of Prisons, an alien of Russian descent, who had been
detained awaiting deportation for two years because no country would accept him, was
ordered released on bail.
Q: What did the court refer to in Mejoff Versus Director of Prisons to justify its decision?
A: The court partly stated: "Moreover, by its Constitution, Article 2, Section 3, the
Philippines adopts the generally accepted principles of international law as part of the
law of the Nation, and in a resolution entitled the Universal Declaration of Human Rights
and approved by the General Assembly of the United Nations of which Philippines is a
member at its plenary meeting on December 10, 1948, the right to life and liberty and all
other fundamental rights as applied to all human beings were proclaimed. It was there
resolved that all human beings are Born Free and equal in dignity and rights (Article 1);
that everyone is entitled to all the rights and freedoms that forth in this declaration
without distinction of any kind such as race color sex language religion political or other
opinion nationality or social origin property birth or other status (Article 2); that everyone
has the right to an effective remedy by the competent nationals their acts violating the
fundamental rights granted him by the constitution or by law (Article 8); that no one shall
be subjected to arbitrary arrest detention or exile (Article 9), etcetera."
Q: What did the court say in Kuroda Versus Jalandoni regarding the scope of the
constitutional provision on international law?
A: Earlier, in Kuroda Versus Jalandoni, the court said that the provision (Article 2,
Section 3) is "not confined to the recognition of the rules and principles of international
law as contained in treaties to which our government may have been or shall be a
signatory."
Q: What was the court's decision in Kuroda Versus Jalandoni regarding jurisdiction over
war crimes, even though the Philippines hadn't fully signed the relevant conventions at
the time?
A: Although the Philippines was not a signatory to The Hague Convention and became
a signatory to the Geneva Convention only in 1947, the court ruled that the Philippine
military commission had jurisdiction over war crimes committed in violation of the two
conventions prior to 1947.
Q: What was the apparent reason for the court's decision in Kuroda Versus Jalandoni?
A: Apparently, the court considered jurisdiction over war crimes to be part of customary
law.
Q: In Augustine Versus Edu, what did the court say about a presidential instruction on
early warning devices in relation to the Constitution?
A: In Augustine Versus Edu, a case about a presidential letter prescribing early warning
devices, the court stated that the constitutional provision on international law had
relevance.
Q: What international convention did the court refer to in Augustine Versus Edu, and
how was it made part of Philippine law?
A: The court highlighted that the 1968 Vienna Convention on Road Signs and Signals
had been ratified by the Philippine government under Presidential Decree Number 207.
Q: What principle did the court invoke in Augustine Versus Edu to support adhering to
international commitments?
A: The court stated: "It is not for this country to repudiate a commitment to which it has
pledged its word. The concept pacta sunt servanda (agreements must be kept) stands
in the way of such an attitude, which is, moreover, at war with the principle of
international morality."
Q: How was the international rule incorporated into domestic law in Augustine Versus
Edu, strictly speaking?
A: Strictly speaking, the incorporation in this case was done not through the
Constitution's general principles clause, but by ratification of the specific convention.
Q: What other international duty was recognized in JBL Reyes Versus Bhagat Singh?
A: The international duty of protecting foreign embassies was recognized in JBL Reyes
Versus Bhagat Singh.
QQ: What principle of international law was established and reaffirmed in cases like
Raquiza Versus Bradford and Baer Versus Tizon?
A: The doctrine of immunity from suit of a foreign state is also a principle of international
law that has been accepted in Philippine jurisdiction through a series of cases, starting
with Raquiza Versus Bradford and summarized and reaffirmed in Baer Versus Tizon.
Conflict Between International Law and Domestic Law:
International Rule
Q: When can the incorporation of international law into domestic Philippine law become
a problem?
A: This incorporation can become a problem when international law (whether customary
or treaty-based) conflicts with domestic law (whether constitutional or statutory).
Q: How is it determined which law should prevail in a conflict?
A: Which law prevails depends on whether the case is brought before a domestic court
or an international tribunal.
Q: What is the established principle when a state appears before an international
tribunal regarding its own domestic law?
A: It's an established principle that before an international tribunal, a state cannot use its
own domestic law as an excuse for failing to follow international law.
Q: What is a state's duty concerning its international obligations, and can it use
domestic law as an excuse?
A: "Every State has the duty to carry out in good faith its obligations arising from treaties
and other sources of international law, and it may not invoke provisions in its
constitutions or its laws as an excuse for failure to perform this duty."
Q: What did the court say in the Advisory Opinion on Exchange of Greek and Turkish
Populations Case regarding a state's obligation when it has international commitments?
A: In the Advisory Opinion on Exchange of Greek and Turkish Populations Case, the
court stated: "This clause merely lays stress on a principle which is self-evident,
according to which a state has contracted valid international obligations is bound to
make in its legislation such modifications as may be necessary to ensure the fulfillment
of the obligations undertaken."
Q: Is there an exception to the general principle of the Vienna Convention regarding a
state's ability to invoke internal law for non-performance?
A: Yes, an exception to this rule is made by Article 46 of the Vienna Convention itself.
Q: Under what circumstances can a state invoke a constitutional violation as an
exception under Article 46?
A: A state can invoke this exception in cases where the constitutional violation was
manifest and concerned a rule of its internal law that was of fundamental importance.
Q: How does Article 46 define a "manifest" violation?
A: The same article defines a violation as manifest "if it would be objectively evident to
any state conducting itself in the matter in accordance with normal practice and in good
faith."
Q: What happens if a treaty declared unconstitutional domestically does not fall under
this Article 46 exception?
A: If the treaty declared unconstitutional doesn't qualify for the exception, it can be
disregarded domestically, but only at the risk of facing international repercussions
before an international court.
Conflict Between International Law and Domestic Law:
Municipal Rule
Q: How is the situation different when a conflict between international and domestic law
comes before a domestic court?
A: The situation is different when the conflict appears before a domestic court.
Q: What are domestic courts generally obligated to apply?
A: Domestic courts are obligated to apply their local law.
Q: In international practice, how often do courts face direct conflicts between domestic
and international law?
A: In international practice, courts rarely face such a direct problem.
Q: Why are direct conflicts rare in domestic courts?
A: This is because courts are generally able to interpret domestic law in a way that
avoids conflicts with international law.
Q: What potential conflicts might arise between a state's constitution and international
law?
A: A conflict could arise between a state's constitution and international law.
Q: Why is a conflict between the Philippine Constitution or statutes and customary
international law unlikely?
A: Such a conflict is unlikely because the Philippine Constitution, when it was created,
accepted the general principles of international law as part of the country's law.
Q: Where are conflicts more likely to arise in the Philippines' legal system?
A: Problems are more likely to occur between treaties on one hand, and the Constitution
or statutes on the other.
Q: If an international agreement conflicts with the Philippine Constitution, what is the
effect on the treaty as domestic law?
A: If a conflict arises between an international agreement and the Constitution, the
treaty would not be valid or enforceable as domestic law.
Q: Which part of the Philippine Constitution explicitly grants the Supreme Court the
power to declare a treaty unconstitutional?
A: Article 8, Section 5, paragraph 2(a) of the Constitution explicitly recognizes the power
of the Supreme Court to declare a treaty unconstitutional.
Q: Does a treaty lose its character as international law if it's declared unconstitutional
domestically?
A: No, a treaty that has been declared unconstitutional domestically does not lose its
character as international law.
Q: Under the dualist theory, which the Philippine Constitution accepts, what is the
nature of a treaty's unconstitutionality?
A: Under the dualist theory, the unconstitutionality of a treaty is considered a purely
domestic matter.
Q: What does Article 27 of the Vienna Convention on the Law of Treaties reiterate in
this context?
A: As Article 27 of the Vienna Convention on the Law of Treaties says, "A party may not
invoke the provisions of its internal law as justification for its failure to perform a treaty."
Q: How did the Philippine Supreme Court address the challenge to the Senate's
ratification of the GATT treaty in Tañada Versus Angara?
A: The Supreme Court's handling of the challenge to the Senate's ratification of the
GATT treaty in Tañada Versus Angara is an important example.
Q: What did the petitioners in Tañada Versus Angara argue regarding the GATT treaty?
A: The petitioners in the case argued that the GATT treaty's parity provisions and
national treatment clauses, found in the WTO agreement, ministerial decisions, and
financial services understandings, violated the Constitution's commitment to economic
nationalism, specifically referring to Articles 2 and 12.
Q: How did the court respond to the petitioners' reliance on Articles 2 and 12 of the
Constitution?
A: In its response, the court stated: "By its very title, Article 2 of the Constitution is a
declaration of Principles and State Policies. The counterpart of this article in the 1935
Constitution is called the basic political creed of the nation by Dean Vicente Sinco.
These principles in Article 2 are not intended to be self-executing principles ready for
enforcement through the courts. They are used by the judiciary as aides or as guides in
the exercise of its power of judicial review and by the legislature in its enactment of
laws. As held in the leading case of Kilosbayan, Inc. Versus Morato, the principles and
state policies enumerated in Article 2 and some sections of Article 12 are not self-
executing provisions, the disregard of which can give rise to a cause of action in the
courts. They do not embody judicially enforceable constitutional rights but guidelines for
legislation."
Q: What was the court's overall conclusion about the Constitution's stance on foreign
trade and investment?
A: "All told, while the Constitution indeed mandates a bias in favour of Filipino goods,
services, labor and enterprises, at the same time it recognizes the need for business
exchange with the rest of the world on the basis of equality and reciprocity and limits
detection of Filipino enterprises only against foreign competition and trade practices that
are unfair. In other words, the Constitution did not intend to pursue an isolationist policy.
It did not shut out foreign investments, goods and services in the development of the
Philippine economy. So the Constitution does not encourage the unlimited entry of
foreign goods, services and investments into the country; it does not prohibit them
either. In fact, it allows an exchange on the basis of equality and reciprocity frowning
only on foreign competition that is unfair."
Q: How did the court's position in Tañada compare to its earlier ruling in Manila Prince
Hotel Versus Government Service Insurance System?
A: The court's stance in Tañada was a departure from its earlier decision in Manila
Prince Hotel versus Government Service Insurance System, where it had declared that
the command of Article 12, Section 10, was mandatory and self-executory.
Q: What does Article 12, Section 10, state?
A: Section 10 says, "In the grant of rights, privileges and concessions covering the
national economy and patrimony the State shall give preference to qualified Filipinos."
Q: How did the court describe the command of Section 12 in the Manila Prince Hotel
case?
A: In awarding a contract to a Filipino corporation that had a lower bid than a Malaysian
one, the court said that the command of Section 12 is "a mandatory positive command
which is complete in itself and which needs no further guidelines or implementing laws
or rules for its enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable."
Q: How did the court attempt to justify its new position in Tañada regarding Article 12,
Section 10?
A: The court, however, tried to justify its new position by saying: "It is true that in the
recent case of Manila Prince Hotel Versus Government Service Insurance System this
court held that Section 10, paragraph Article 12 of the 1987 Constitution is a mandatory
positive command which is complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very words the provision does
not require any legislation to put it in operation. It is per se judicially enforceable.
However, as the constitutional provision itself states it is enforceable only in regard to
the grants of rights, privileges and concessions covering national economy and
patrimony and not to every aspect of trade and commerce. It refers to exceptions rather
than the rule. The issue here is not whether this paragraph or Section 10 of Article 12 is
self-executing or not; rather, the issue is whether as a rule there are enough balancing
provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in
the WTO agreement, and we hold that there are."
Q: How is a conflict between an international agreement and domestic legislation settled
under municipal law?
A: The municipal rule for resolving a conflict between an international agreement and
legislation is different.
Q: What is the rule followed in the United States regarding the rank of treaties and
statutes, and which prevails in a conflict?
A: In the United States, the rule is that treaties and statutes are equal in rank. Since
neither is superior, the rule is that between an earlier treaty and a later law, the later one
prevails.
Q: What did the United States Supreme Court say about the parity of acts of Congress
and treaties?
A: As the United States Supreme Court stated, "This court has also repeatedly taken
the position that an act of Congress is on a full parity with a treaty and that when a
statute which is subsequent in time is inconsistent with the treaty the statute to the
extent of conflict renders the treaty [inapplicable]."
Q: Does the same rule apply in the Philippines, and if so, where?
A: The same rule applies in the Philippines, but again, this rule applies only in the
domestic sphere.
Q: What happens to the treaty at the international level, even if it conflicts with a later
domestic statute?
A: The treaty, even if it contradicts a later domestic statute, remains international law.
Q: What are the consequences for the aggrieved state when a treaty is nullified in
domestic law?
A: While an international tribunal would not have the power to reverse the domestic
nullification of the treaty, it can take appropriate action in favor of an aggrieved state.