International Law (IL) is the law that deals with the conduct of States and

international organizations, their relations with each other and, in certain

circumstances, their relations with persons, natural or juridical [American Third
Restatement].
One of the bases of International Law is the Positivist School which posits that
the binding force of International Law is derived from the agreement of the States to
be bound by it. In this context, IL is not a law of subordination but of coordination
[Antonio E.B. Nachura, 2009, p. 641].
Subsequently, the primary sources of IL are the International Treaties and
Conventions, whether general or particular, establishing rules expressly recognized
by contesting states. [Ibid, p. 644]
To attain the primary objective of maintaining international peace and order,
implement the customary principles of international law, the attainment of
international cooperation and harmony in the actions of nations, and govern the
relations of international persons, the UN Charter was created.
In exercising the functions of the UN charter, the League of Nations adopted
and created declarations in recognizing the rights of children to be protected as
discussed hereunder.
It is worthy to note, however, these declarations are called "soft law". It
refers to guidelines of conduct into rules of International Law. They are resorted to
by States when they do not yet wish to be bound legally, especially in non-traditional
or novel areas of International Law, such as environmental and child protection.
They usually take the form of non-treaty agreements such as Declarations [Atty.
Fretti G. Ganchoon, Notes on Public International Law, Jurists Bar Review Center,
2015].
Among these declarations and conventions is the Geneva Declaration on the
Rights of the Child, adopted by the League of Nations on September 26, 1924, which
was recognized in the Universal Declaration of Human Rights (UDHR) in 1959 which
reaffirmed the faith in fundamental human rights and the dignity and worth of
human person and that human person have equal rights [Jorge R. Coquia, Human
Rights An Introductory Course, 2000, p. 42]. The Universal Declaration of Human
Rights is one of the so-called International Bill of Rights1.
1

Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.

The UDHR has been declared as common standard of achievement for all
people and all nations and that human rights should be protected by the rule of law
[Preamble, UDHR] at all cost.
Thus, this fundamental document sustained the declaration that all human
beings are born free; equal in dignity and rights 2; have the right to life, liberty and
security of person3; are entitled without any discrimination to equal protection of the
law4; and to a fair and public hearing by an independent and impartial tribunal 5.
Moreover, due to the pressing needs to recognize the rights derived from the
inherent dignity of all men, the International Covenant on Civil and Political Rights 6
and the International Covenant on Economic, Social and Cultural Rights7 as part of
the International Bill of Rights are enacted.
Civil and political rights are the rights which the law will enforce at the
instance of individuals without discrimination for the enjoyment of their lives, liberty
and means of happiness. Some examples are the right to be free from arbitrary
arrest and detention, freedom from torture and the rights to life [Coqiua, Ibid, p. 56].
The International Covenant on Civil and Political Rights are called the First
Generation Rights which derived primarily from the 17th and 18th century reformist
theories associated with the English, American and French revolutions8. It conceives
of human rights more in negative than positive terms. It favors the abstention rather
than the intervention of government in the quest of human dignity9.
Moreover, the International Covenant on Economic, Social and Cultural Rights
are considered as the Second Generation of Rights. These rights trace their origin
from the socialist doctrine which advocates the equitable sharing of economic
resources, services and welfare benefits of the people [Coquia, Ibid, p. 102].

Article 1, UDHR.
Article 3, Ibid.
4
Article 7, Ibid.
5
Article 10, Ibid.
6
Adopted on 16 December 1966 by the UN General Assembly. The Philippines signed and ratified it
on 19 December 1966 and 23 October 1986, respectively.
7
Adopted on 16 December 1966 by the UN General Assembly. The Philippines signed and ratified it
on 19 December 1966 and 7 June 1974, respectively.
8
Atty. Rey Oliver S. Alejandrino, DCL. The Convergence between International Human Rights Law and
International Humanitarian Law A Propos the Law on Terrorism (Human Security Act of 2007): An
Analysis. p. 104.
9
Ibid.
3

Later on, due to age and mental immaturity, the child needs special
protection and care for his full development as a person before, as well as after birth.
To realize this, the Declaration of the Rights of the Child was created based on the
foregoing declarations and the same was proclaimed by the General Assembly in
1959. The comprehensive rights of the child are enumerated in the Convention on
the Rights of the Child adopted in 1989.
The ratification of this International Agreements (IA) are deemed part of the
laws of the land to which the country has become a signatory and also become part
of the customary International Laws and thus, it is binding in all states.
[Pharmaceutical and Health Care Association of the Philippines v. Duque III, 535 SCRA
265, 2007]. These are made to promote peace and order among nations.
However, these declarations and covenants are meant to provide guidelines
for everyone and these serve as guide or as aids of the legislators of each country in
enacting their own municipal laws to protect individuals particularly, children.
Further, however, these international agreements are not intended to be selfexecuting principles ready for enforcement between, among and within nations. In
short, these agreements merely lay down a general principle and such cannot give
rise to a cause of action and they do not embody enforceable rights. [Tondo Medical
Center Employees Association v. Court of Appeals, 527 SCRA 746, 2007 (Note: The
issue in this case is the different. The application of the principles presented in this
case was applied by analogy)].
Be that as it may, the Declarations and Conventions (supra) are one of the
bases and guides of our legislators in enacting our municipal laws to protect children.
The question now is, how are these International Laws become part of our
own laws in the Philippines? In the case of Commissioner of Customs v. Eastern Se
Trading [G.R. No. L-14279, October 31, 1961], the Supreme Court pronounced that
unless International Law is made part of the national legal system, it has no role in
the settlement of domestic issues. So, how will it become part of the national legal
system? This is where the Doctrine of Incorporation Clause and the Doctrine of
Transformation come into play. On one hand, the former is a rule where an IL
automatically becomes part of national legal system without need of express
adoption by the legislature or local courts.
In the Philippine scenario, our country adopts the incorporation approach for
rules of customary international law [See Art. II, Sec. 2 of the 1987 Constitution] e.g.
human rights principles under the Universal Declaration of Human Rights as ruled in

the case of Mejoff v. Director of Prisons [G.R. No. L-4254, September 26, 1951]. On
the other hand, the latter is a rule of IL where it only becomes part of the national
legal system if it has been expressly adopted by the State, as by legislation. The
Philippines adopts the transformation approach for IL derived from treaties [See Art.
Vll, Sec. 21, 1987 Constitution].