Sources and Foundation of Human Rights

A. General Principles of La

1. Incorporation Clause Article II, section 2, 1987 Philippine Constitution

“Art. Section 2. The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of international
law as part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations.”1
The second part of this provision transform international law to be part of the
law of the land by incorporating it into our municipal law. If ever a question of
law arises, in cases where the Philippines doesn’t have jurisdiction or a law that
can be applied and interpret it. International law may apply in this case and
can be used by Philippines courts to settle disputes.
As a rule, Treaties entered into by the Philippines becomes part of the law of
the land with the mandate that it requires a legislative fiat or through the
executive agreements that are similar to treaties, in this case there is no need for
a legislative concurrence because the subject of the treaties entered into by
the executive covers only certain matter compared to treaties that are much
broader in scope and application.
In cases where the executive entered into where there is no legislative
concurrence was expounded in the case of Bayan Muna v. Romulo2, the court
said that the right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long
usage. From the earliest days of our history, we have entered executive
agreements covering such subjects as commercial and consular relations, most
favored-nation rights, patent rights, trademark and copyright protection, postal
and navigation arrangements and the settlement of claims. The validity of these
has never been seriously questioned by our courts.

2. Customary Law (Jus Cogens, Erga Omnes)

• Jus Cogens - is a norm accepted and recognized by the

international community of States as a whole as a norm from which
no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same
character.3
The principle of Jus Cogens was elaborated in The North Sea Continental
Shelf Cases (Germany v. Denmark; West Germany v. Netherlands)4:
Facts: Denmark and the Netherlands submitted an individual
dispute with Germany involving the claims of the North Sea continental
Shelf. These separate claims by Denmark and Netherlands were

1
1987 Philippine Constitution.
2
Bayan Muna v. Romulo G.R. No. 159618, March 26, 1949.
3
https://legal.un.org/ilc/reports/2019/english/chp5.pdf
4
The North Sea Continental Shelf Cases (Germany v. Denmark; West Germany v. Netherlands) February 20, 1969
 corroborated by the International Court of Justice. The parties sought a
method based on the equidistance principle by which the Continental
Shelf Could be fairly delimited. Germany, Netherlands and Denmark
agreed the Court was not to physically apportion claims, but merely
prescribe a method of delimitation for the parties to follow. Netherlands
and Denmark had drawn partial boundary lines based on the
equidistance principle. An agreement on further prolongation of the
boundary proved difficult because Denmark and Netherlands wanted this
prolongation to take place based on the equidistance principle.
However, Germany was of the view that, together, these two boundaries
would produce an inequitable result for her. Germany stated that due to
its concave coastline, such a line would result in her losing out on her
share of the continental shelf based on proportionality to the length of its
North Sea coastline. The Court had to decide the principles and rules of
international law applicable to this delimitation. In doing so, the Court had
to decide if the principles espoused by the parties were binding on the
parties either through treaty law or customary international law.
Issue: whether or not the Equidistance Rule is a customary
international law rule.
Held: No. The use of the equidistance method had not crystalized into
customary law and the method was not obligatory for the delimitation of
the areas in the North Sea related to the present proceedings.
The jurisprudence in this case created a requirement In order for the
customary international law would apply; 1) State Practice (objective element);
and 2) Opinio Juris (the subjective element). The court in this jurisdiction
explained the criteria on how to State practice would manifest, it held that the
practices of those States whose interests were specially affected by the custom
were especially relevant in the formation of customary law. The court also
stressed that the belief that state practice amounts to a legal obligation. The
North Continental Cases also dispelled the myth that duration of the practice
(i.e. the number of years) was an essential factor in forming customary
international law.5

• Erga Omnes - Obligations in whose fulfilment all states have a legal

interest because their subject matter is of importance to the
international community as a whole6.
In an obiter dictum in its 1970 judgment in the Barcelona Traction case,
the International Court of Justice identified a category of international
obligations called erga omnes, namely obligations owed by states to the
international community as a whole, intended to protect and promote the
basic values and common interests of all. Without losing sight of the theoretical
dimension of obligations erga omnes7.
In the case of Barcelona Traction, Light and Power Company Ltd,
(Belgium v. Spain8, the concept of erga onmes was further explained by the

5
https://ruwanthikagunaratne.wordpress.com/2014/02/28/north-sea-continental-shelf-cases-summary/
6

https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095756413#:~:text=%5BLatin%3A%20tow
ards%20all%5D,international%20community%20as%20a%20whole.
7
https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780198298700.001.0001/acprof-
9780198298700
8
https://www.refworld.org/cases,ICJ,402391b04.html
International Court of Justice. Where a state assumes an obligation concerning
the treatment of foreign investments based on general international law, once
the state admits foreign investments or foreign nationals into its territory9.
Facts: The Barcelona Traction, Light, and Power Co, was incorporated and
registered in Canada for the purpose of developing and operating electrical
power in Spain. The company was declared bankrupt by a Spanish court after
the Spanish Civil War and its assets were seized. After the end of the Canadian
interposition, an action for damages against Spain was brought by Belgium for
what it termed expropriation of the assets of the Traction Co. on the ground that
a large majority of the stock of the company was owned by Belgian nationals.
Preliminary objections were raised by Spain that the plaintiff lacked standing to
bring suit for damages to a Canadian company.
Issue: whether or not the state assumes an obligation concerning the
treatment of foreign investments based on general international law, once the
state admits foreign investments or foreign nationals into its territory?
Ruling: When a State admits into its territory foreign investments or foreign
nationals, whether natural or juristic persons, it is bound to extend to them the
protection of the law and assumes obligations concerning the treatment to be
afforded them. These obligations, however, are neither absolute nor
unqualified. In particular, an essential distinction should be drawn between the
obligations of a State towards the international community as a whole, and
those arising vis-à-vis another State in the field of diplomatic protection. By their
very nature the former is the concern of all States. In view of the importance of
the rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes. Such obligations derive, for
example, in contemporary international law, from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning
the basic rights of the human person, including protection from slavery and
racial discrimination. Some of the corresponding rights of protection have
entered into the body of general international law.
The concept was also observed in the case of People v. Chan Fook10,
where the court held that foreigners in the Philippines are entitled to the benefits
of the individual rights by the Philippine Bill is undeniable. In this particular case
Chan Fook was a Chinese national who lawfully entered in the Philippines and
been allowed to land by the migration authorities. When he was charged of the
crime resistance and disobedience to the public authority, where he objected
the search and struck the custom agent for the unlawful search that was done
against his rights. The Court in this case ruled in favor of Chan Fook, the court
stressed that the constitutional right to be secured against unreasonable
searches applies universally to all persons within the territorial jurisdiction, without
regard to any differences of race, of color, or of nationality; and the equal
protection of the laws is a pledge of the protection of equal laws.

9
https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-
8/barcelona-traction-light-and-power-company-ltd-belgium-v-spain-2/
10
42 Phil 230