Doctrine of Transformation – International law becomes municipal law through a statute

Philo Terms formally recognizing the law.

A. Two viewpoints concerning the relationship between international and

Article 26 of the Vienna Convention on the Law of Treaties
domestic law
a. MONOISM
i. International and domestic law are part of the same legal
Article 26. "PACTA SUNT SERVANDA" Every treaty in force is binding upon the parties
order
to it and must be performed by them in good faith.
ii. International law is automatically incorporated into each
nation’s legal system
iii. International law is supreme over domestic law
(a) "Treaty" means an international agreement concluded between States in written
iv. There is single system of law
form and governed by international law, whether embodied in a single instru ment or in
b. DUALISM
two or more related instruments and whatever its particular designation; (b)
i. International law and domestic law are distinct
"Ratification", "acceptance", "approval" and "accession" mean in each case the
ii. Each nation determines the extent of international law
international act so named whereby
that it incorporates
iii. Status of international law in the domestic system is
Article 38 of the International Court of Justice Statute determined by domestic law.
1. The Court, whose function is to decide in accordance with international law such iv. In the Philippines, we adopt the Dualist view.
disputes as are submitted to it, shall apply:
B. Incorporation of Customary Law
i. Customary International law is one of the two primary
a. international conventions, whether general or particular, establishing rules sources of international law.
expressly recognized by the contesting states; 1. The other primary source is treaties— written
b. international custom, as evidence of a general practice accepted as law; and contractual in nature
c. the general principles of law recognized by civilized nations; ii. Customary International law results from a general and
d. subject to the provisions of Article 59, judicial decisions and the teachings of consistent practice of States followed by them from a
the most highly qualified publicists of the various nations, as subsidiary sense of legal obligation
means for the determination of rules of law. 1. Elements
a. State Practice
b. Opinio Juris- sense of legal
2. This provision shall not prejudice the power of the Court to decide a case ex aequo
obligation under which a state acts
et bono, if the parties agree thereto.
C. Incorporation Clause: Article II Section 2 of the Constitution
Article 59 a. “international law as part of the law of the land”
i. This is the incorporation clause
ii. Framer’s Intent: that incorporated international law woild
merely have force of statute and not constitutional
The decision of the Court has no binding force except between the parties and in respect imperative
of that particular case. b. “generally accepted principles of international law”
i. It refers to rules of customary law, general principles of
law or logical propositions resulting from judicial
Pharmaceutical and Healthcare Association of the Philippines v. Duque reasoning on the basis of existing international law and
municipal analogies.
International law becomes domestic law either through the doctrine of incorporation or ii. According to Dean Magallona
the doctrine of transformation. 1. Incorporation Clause is the recognition that
both customary international law and general
Doctrine of Incorporation – Through Art. 2, Sec 2 of the Constitution, the “incorporation principles of law comprise the generally
clause”, we adopt the generally accepted principles of international law and forms part accepted principles of international law
of the law of the land.
a. Treaties: international agreements involving political issues or changes of national
policy and those involving international agreements of a permanent character



b. Executive agreements: international agreement embodying adjustments of detail

carrying out well-established national policies, traditions, and those involving
arrangements of a more or less temporary nature 


— In the absence of guiding direction of treaties and statues, the

process of selecting what these accepted principles are, will have to be done
by the courts. Among the generally accepted principles in international law
acknowledged by the Court as part of the law of the land are:

. (1) The right of an alien to be released on bail while awaiting deportation

when his failure to leave the country is due to the fact that no
country will accept him. (Mejoff v. Director of Prisons)