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BERNAS PUBLIC INTERNATIONAL LAW – INTERNATIONAL LAW AND MUNICIPAL


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Published by symba on July 11, 2013 | Leave a response

CHAPTER 4 INTERNATIONAL LAW AND MUNICIPAL LAW

Dualism v. Monism

  Municipal Law International Law

Dualist or As to source Product of local Treaties and custom


Pluralist Theory custom or of grown among states
legislation
*when
international or As to relations Regulates relations Regulates relations
municipal law are they regulate between individual between states
in conflict, persons under the
Municipal law state
must prevail
As to their Law of sovereign Law between
substance over individuals sovereign states

Monism or Two theories:


monistic theory
A. Municipal law subsumes and is superior to international law
*International and
municipal laws B. International law is superior to Domestic Law (supported by
belong to only one Kelsen)
system of law

Municipal Law in International Law

Follows the dualist tradition and blocks domestic law from entry into the
international arena
A state which has violated a provision of international law cannot justify itself by
recourse to its domestic law
A state which has entered into an international agreement must modify its law to
make it conform to the agreement

International Law in Domestic Law

How does international law become part of domestic law for dualists?

1. Doctrine of Transformation

a. It must be expressly and specifically transformed into domestic law              


through the appropriate constitutional machinery such as an act of                
Congress or Parliament

b. Treaties do not become part of the law of a state unless it is consented to    


by the state

2. Doctrine of Incorporation

a. They become part of the law of the land

Philippines adheres to the dualist theory and at the same time adopts the
incorporation theory and thereby makes international law part of
domestic law
International law can be used by Philippine courts to settle domestic
disputes
Art. 2, Sec. 2 of the Constitution: only customary law and treaties which
have become part of customary law become part of Philippine law by
incorporation

Conflict between International Law and Domestic Law: International Rule

Before an international tribunal, a state may not plead its own law as an
excuse for failure to comply with international law
Exception: Art. 46 of Vienna Convention = in cases where the
constitutional violation was manifest and concerned a rule of its internal
law of fundamental importance
Manifest = objectively evident to any State conducting itself in the matter
in accordance with normal practice and in good faith

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
Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the
Supreme Court to declare a treaty unconstitutional; however, even if
declared unconstitutional, the treaty will not lose its character as an
international law

Creative Commons Constitutions

RELATED ARTICLES:

Bernas Public International Bernas Public International


Law – SOURCES OF Law – PEACEFUL
INTERNATIONAL LAW Part 2 SETTLEMENT OF
INTERNATIONAL DISPUTES
Bernas Public International
Part 4
Law – THE LAW OF WAR Part
1 Bernas Public International
Law – STATE RESPONSIBILITY
Bernas Public International Part 4
Law – IMMUNITY FROM
JURISDICTION Part 4