October 13, 2018

SATURDAY
5:00 – 8:00PM
DUALISM VS MONISM

 Dualist/Pluralist Theory – essentially different as to:
a. Source
b. What it regulates
c. Substance

 Monism – international law and domestic law belong

to only one system of law
 Municipal Law in
International Law

 Provisions in Treaties which recognize dualism

1. Article 27 of the Vienna Convention on the Law of

Treaties
“A party may not invoke the provisions of its
internal law as justification for its failure to
perform a treaty”
 Municipal Law in
International Law

2. Article 13 of the Declaration of Rights and Duties of States

“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 constitution or its laws as an excuse for
failure to perform this duty”

Exchange of Greek and Turkish Population Case

 
Common teachings of domestic law as part of
international law
Barcelona Traction Case
 International Law in
Domestic Law

 Doctrine of Transformation
 Doctrine of Incorporation

Under Philippine Law:

- in the case of treaties as international law, they
become part of the law of the land when concurred in by the
Senate
- with regard to customary law and treaties which
have become customary law
“adopts the generally accepted principles of international
law as part of the law of the land”
 
Since treaties become a part of Philippine law only by
ratification, the principle of incorporation applies only
to customary law and to treaties which have become
part of customary law.

Mejoff vs Director of Prisons

Kuroda v. Jalandoni (the Court considered jurisdiction
over war crimes part of customary law)
 
Agustin v. Edu
the 1968 Vienna Convention on Road Signs and
Signals had been ratified by the Philippine government
under Presidential Decree No. 207.
Strictly speaking, therefore, the incorporation here was
done not via the Constitution but by ratification.
 Conflict between International
Law and Domestic Law:
International
 Rule
 when international law, whether customary or
conventional, comes into conflict with domestic law,
whether constitutional or statutory. Which law
should prevail?
 Conflict between International Law
and Domestic Law: Municipal Rule

 Domestic courts are bound to apply the local law
 Should a conflict arise between an international
agreement and the Constitution, the treaty would
not be valid and operative as domestic law.

 Tanada v. Angara
 Manila Prince Hotel v. Government Service
Insurance System
 
 The municipal rule for settling a conflict between
international agreement and legislation is different.
 treaties and statues are equal in rank and that, since
neither is superior to the other, the rule followed is
that as between an earlier treaty and a later law, the
later one prevails

 HEAD MONEY CASES

 WHITNEY v. ROBERTSON

