Aldrin Mark M.

Quintana CEU-3JD

Atty. Lemuel D. Lopez

Essay on Conflict of Laws, Introduction and Development Disputes as to ones interest or benefit have been the constant source of Conflict of Laws. As to States, it may be ostensibly imputed to the concept of Sovereignty. The modern conception of sovereignty was first formulated in the latter part of the sixteenth century with reference to the new phenomenon of the territorial State. It refers in legal terms to the elemental political fact of that age the appearance of a centralized power that exercised its law-making and law-enforcing authority within a certain territory. This power is superior to other forces that made themselves felt in that territory and through the span of time, it became unchallengeable either from within or without its territory i.e., it had become supreme.1 The concept of its supremacy provides the power of each State to direct its own external and internal affairs without interference or dictation from other sovereign States. Thus, disputes arise when a State interferes with the administration of the affairs of another State, which if done unilaterally will result to war and eventually another world war, a cycle resulted from the inevitable concept of Sovereignty which history dictates to be one of the major causes of war. International relationship of States inter se has shaped an overwhelming development in terms of economic, social, cultural and political development of amongst each State which necessitates the introduction of the concept of International law, which as defined, body of legal rules and principles which apply between sovereign States and such other entities as have been granted international personality.2 This international law has been recognized in order to promote social order and harmony for the maintenance of peace in the world. History has shown efforts to create an international body to govern this relationship, The Holy Alliance3, The League of Nations after the first World War and the United Nations after the second World War, a sign of mans determination to put a rule of
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Politics Among Nations; The Struggle for Power and Peace, Morgenthau, Thompson/ Clinton, 7 Ed., McGrawHill/Irwin, New York USA, p. 317. 2 International Law, Isagani A. Cruz, 2003 Ed., Central Book Supply Inc., Quezon City, p. 1, citing Schwarzenberger. 3 Based upon three Treaties; Treaty of Chaumont, 1814; Quadruple Alliance, 1815; and the Treaty of Holy Alliance, 1815.

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law that would forever proscribed the inhumane consequence of war and to peacefully settle international disputes, it creates a body of juridical entities which are now governed by the law of nations, jus gentium. This concept of International law has tempered the supreme concept of sovereignty for many agreed that this will establish peace and order in the community of nations and will eventually prevent the employment of force, including war in all international relations and peaceful settlement of international disputes. This international law may originate from domestic or municipal laws, customs, traditions, and principles common to major legal systems of the world, judicial decisions, agreements or treaties.4 The Philippines, as a member of the Family of Nations, adopts the generally accepted principles of international law as part of its domestic law and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. 5 According to some commentaries, even in the absence of this express declaration, States are still bound by the rules prescribed by the United Nations for the regulation of international intercourse, to borrow the words of Attorney General Randolp, the law of nations, although not specially adopted by the constitution or any municipal act, is essentially a part of the law of the land. Its obligations commences and runs with the existence of a nation,6 and under the principle of pacta sunt servanda, accepted principles of international law must be observed in good faith7 and also as part of the obligation of each State to recognize international comity, it is a recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.8 This incorporation clause adopted by the 1987 Philippine Constitution does not recognize, however, the supremacy per se of international law over its municipal or domestic law, such generally accepted rules of international law are not per se binding
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Article 38, Statute of the International Court of Justice. Section 2, Article II, 1987 Constitution. 6 Attorney General Randolps Opinion of June 26, 1792, 1 Ops. Atty. Gen. 26, 27. 7 Inchong vs. Hernandez, 101 Phil. 1155, 1957. 8 Hilton vs. Guyot, 159 US 113, 1895.

upon the recognizing State until that it is so transformed in to municipal law by an enabling legislations, only upon such transformation, embodied in a legislation enacted by the lawmaking body, it becomes binding,9 and like any other State to enforce its sovereignty, still the Article 2 of the Vienna Convention allows reservations, it aims to exclude or to modify the legal effect of certain provisions of treaties or international agreements in their application to a particular State. The Philippines, for example, the doctrine of incorporation of the 1987 Constitution must be read vis--vis to the same constitutional reservations when it declared, The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them,10 The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination,11 and The State shall develop a self-reliant and independent national economy effectively controlled by Filipinos.12 In general, conflict of laws arise from these reservations used to spare the application of each States municipal or domestic law in connection to its yell for absolute sovereignty, in which the dualists who believe in the dichotomy of law and who provide for the certain well-established differences between international law and domestic law, it is posited that, municipal law is issued by a political superior for observance by those under its authority, whereas international law is not imposed upon but simply adopted by States as a common rule of action among themselves, thus, municipal law is a law of a sovereign over those subjected to his sway, the law of nations is a law, not above, but between sovereign States and is therefore, a weaker law.13 Moreover, a distinction between Public International Law and Private International law is necessary. The former governs the relationships among States and International Organizations and individual persons inter se, while the latter is in fact a domestic law which deals with cases where foreign law intrudes in the domestic sphere when there are
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Kuroda vs. Jalandoni, 83 Phil. 171, 1949. Section 1, Article II, 1987 Constitution. 11 Section 7, Ibid. 12 Section 19, Ibid. 13 International Law, Isagani A. Cruz, 2003 Ed., Central Book Supply Inc., Quezon City, p. 3, citing Oppenheim.
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questions as to the applicability of foreign law or the role of foreign courts in relation to States domestic legislations.14 In international setting, these conflict of laws arising from disputes as to the application of proper laws or when one State claims that another State should behave in a certain manner or an actual disagreement between the States for the protection or vindication of their individual interest. Such disputes involving justiciable rights based on law or fact may be susceptible of adjudication by an arbitral or judicial tribunal15 for disputes are required to be settled in peaceful means in such manner that international peace, security and justice, are not endangered.16 Methods may be, amicable such as negotiation of terms and conditions for possible adjustments; inquiry or investigation of the points in questions to elucidate the matter being disputed; Mediation by a third party which may bring conciliation or arbitration; another method is judicial settlement in which parties must agree to adhere to the jurisdiction of the body created, or an ad hoc tribunal or to submit the issue, with consent also of both parties to International Court of Justice, in which its decision shall be binding between all the concerned parties. The consent of all the concerned parties is necessary for the International Court of Justice to acquire jurisdiction. Some of the disputes that may be brought to International Court of Justice are expressly provided in Article 36 of the Statute, namely, interpretation of a treaty; any question of international law; existence of a fact that may constitute breach of international obligation and the reparation for the same; it may be added that hostile methods may also be used to settle disputes, like, retorsions or retaliation 17, reprisals18 or worst, a war. Settlement of Private International Law is discussed as part II of this essay on Conflict of Laws.
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Introduction to Public International Law, Joaquin G. Bernas, S.J., 2009 Ed., Rex Book Store, Manila, p. 4 International Law, Isagani A. Cruz, 2003 Ed., Central Book Supply Inc., Quezon City, p. 207. 16 Article 2, United Nations Charter. 17 Any action taken in retaliation where the acts complained of do not constitute a legal ground of offense but are rather in the nature of unfriendly acts but indirectly hurtful to other States. The act of retaliation is also unfriendly but not illegal and may be in kind or of a different nature than the act that provoked it. Examples of retorsions are severance of legation or consular relations or suspension of commercial intercourse or denial of loans. International Law, Isagani A. Cruz, Ibid, p. 213. 18 Acts of self-help on the part of the injured State, responding after an unsatisfied demand to an act contrary to international law on the part of the offending State, it suspends the relations of two States momentarily the observance of International law. International Law, Isagani A. Cruz, Ibid, p. 214.