WEEK 3

GENERAL PRINCIPLES OF LAW

As citied in the Restatement (Third) of Foreign Relations Law of the United

States, this refers to “general principles of law recognized by or common to the
world’s major legal systems.” This has reference not to principles of international
law but to principles of municipal law common to the legal systems of the world.

CASE DOCTRINES

In the case of Tañada vs. Angara1, the petitioners alleges that by concurring to the
establishment of the World Trade Organization, the Philippines is giving up its
sovereignty and being detrimental to the constitutional policy of “self-reliant and
independent national economy.” The Court held that:

“By their inherent nature, treaties really limit or restrict the absoluteness of
sovereignty. By their voluntary act, nations may surrender some aspects of
their state power in exchange for greater benefits granted by or derived
from a convention or pact. After all, states, like individuals, live with
coequals, and in pursuit of mutually covenanted objectives and benefits,
they also commonly agree to limit the exercise of their otherwise absolute
rights. Thus, treaties have been used to record agreements between States
concerning such widely diverse matters as, for example, the lease of naval
bases, the sale or cession of territory, the termination of war, the regulation
of conduct of hostilities, the formation of alliances, the regulation of
commercial relations, the settling of claims, the laying down of rules
governing conduct in peace and the establishment of international
organizations. The sovereignty of a state therefore cannot in fact and in
reality be considered absolute. Certain restrictions enter into the picture:
(1) limitations imposed by the very nature of membership in the family of
nations and (2) limitations imposed by treaty stipulations.”

In the case of Mijares vs. Ranada2, the petitioners were victims of human rights
abuses during the Marcos dictatorship. They filed a case against the Marcos Estate
before the District Court of Hawaii, which rendered a decision in their favor. When
the petitioners sought to enforce the judgment, the RTC dismissed the case for not
paying the required docket fees. In granting the decision, the Court held that:

There is no obligatory rule derived from treaties or conventions that

requires the Philippines to recognize foreign judgments, or allow a
procedure for the enforcement thereof. However, generally accepted
principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive
from treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination two
elements: the established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter element is
a belief that the practice in question is rendered obligatory by the existence
of a rule of law requiring it

In his dissenting opinion in the South-West Africa Cases3, Sir Arnold McNair
opined that:

“The way in which international law borrows from this source is not by
means of importing private law institutions "lock, stock and barrel", ready-
made and fully equipped with a set of rules. It would be difficult to reconcile
such a process with the application of "the general principles of law". In my
opinion, the true view of the duty of international tribunals in this matter is
to regard any features or terminology which are reminiscent of the rules
and institutions of private law as an indication of policy and principles
rather than as directly importing these rules and institutions.

In the case of Filartiga vs. Pena-Irala4, it was contended by respondent that the
proper venue for the case would be under Paraguay jurisdiction and not in the
United States. In ruling that it had jurisdiction to hear the case, the United States
Supreme Court held that:

“The international law described by the Court of Appeals does not ordain
detailed remedies but sets forth norms. But plainly international "law" does
not consist of mere benevolent yearnings never to be given effect. Indeed,
 the Declaration on the Protection of All Persons from Being Subjected to
Torture, General Assembly Resolution, adopted without dissent by the
General Assembly, recites that where an act of torture has been committed
by or at the instigation of a public official, the victim shall be afforded
redress and compensation "in accordance with national law," and that
"each state" shall ensure that all acts of torture are offenses under its
criminal law.”

In the case of Trendtex vs. Central Bank of Nigeria5, the respondent invoked the
principle of sovereign immunity. On the other hand, Trendtex argued that all courts
within the United Kingdom had jurisdiction to hear the case. In denying the
argument of respondent, the ponente discussed the doctrine of sovereign immunity,
to wit:

“The doctrine of sovereign immunity is based on international law. It is one

of the rules of international law that a sovereign state should not be
impleaded in the courts of another sovereign state against its will. Like all
rules of international law, this rule is said to arise out of the consensus of
the civilised nations of the world. All nations agree upon it. So it is part of
the law of nations.”

“To my mind this notion of a consensus is a fiction. The nations are not in
the least agreed upon the doctrine of sovereign immunity. The courts of
every country differ in their application of it. Some grant absolute immunity.
Others grant limited immunity, with each defining the limits differently.
There is no consensus whatever. Yet this does not mean that there is no rule
of international law upon the subject. It only means that we differ as to what
that rule is. Each country delimits for itself the bounds of sovereign
immunity. Each creates for itself the exceptions from it. It is, I think, for the
courts of this country to define the rule as best they can, seeking guidance
from the decisions of the courts of other countries, from the jurists who have
studied the problem, from treaties and conventions and, above all, defining
the rule in terms which are consonant with justice rather than adverse to
it.”

In the Chorzow Factory Case6, the Permanent Court of Justice held that:
 “It is a principle of international law that the reparation of a wrong may
consist in an indemnity corresponding to the damage which the nationals of
the injured State have suffered as a result of the act which is contrary to
international law. The reparation due by one State to another does not
however change its character by reason of the fact that it takes the form of
an indemnity for the calculation of which the damage suffered by a private
person is taken as the measure. The rules of law governing the reparation
are the rules of international law in force between the two States concerned,
and not the law governing relations between the State which has committed
a wrongful act and the individual who has suffered damage. Rights or
interests of an individual the violation of which rights causes damage are
always in a different plane to rights belonging to a State, which rights may
also be infringed by the same act. The damage suffered by an individual is
never therefore identical in kind with that which will be suffered by a State;
it can only afford a convenient scale for the calculation of the reparation
due to the State.”

In the Chorfu Channel Case7, the ICJ held that:

“It is true, as international practice shows, that a State on whose territory

or in whose waters an act contrary to international law has occurred, may
be called upon to give an explanation. It is also true that that State cannot
evade such a request by limiting itself to a reply that it is ignorant of the
circumstances of the act and of its authors. The State may, up to a certain
point, be bound to supply particulars of the use made by it of the means of
information and inquiry at its disposal. But it cannot be concluded from the
mere fact of the control exercised by a State over its territory and waters
that that State necessarily knew, or ought to have known, of any unlawful
act perpetrated therein, nor yet that it necessarily knew, or should have
known, the authors.”

In the Barcelona Traction, Light & Power Company Case8, the ICJ held that:

“In this field international law is called upon to recognize institutions of

municipal law that have an important and extensive role in the inter-
 national field. This does not necessarily imply drawing any analogy be-
tween its own institutions and those of municipal law, nor does it amount to
making rules of international law dependent upon categories of municipal
law. Al1 it means is that international law has had to recognize the
corporate entity as an institution created by States in a domain essentially
within their domestic jurisdiction.”

REFERENCE

1. Joaquin G. Bernas, Public International Law (2009 Ed.)

CASES

1. Tañada v. Angara, (G.R. No. 118295, May 2, 1997)

2. Mijares v. Hon. Ranada, (GR 1393325, April 12, 2005)
3. Opinion of Sir Arnold McNair (I.C.J. Reports 128, 1950)
 Link: https://www.icj-cij.org/files/case-related/10/010-19500711-ADV-01-01-
EN.pdf
4. Filartiga v. Pena-Irala (630 F. 2d 876, 1980)
5. Trendtex Trading Corporation v. Central Bank of Nigeria (1 All E.R. 881, 1977)
6. Chorzow Factory Case (1928 PCIJ Ser. A, No. 17).
 Link: https://legal.un.org/PCIJsummaries/documents/english/PCIJ_FinalText.pdf
7. Corfu Channel Case (ICJ Reports, 1949).
 Link: https://www.icj-cij.org/files/case-related/1/1647.pdf
8. Barcelona Traction, Light & Power Company Case (ICJ Reports, 1970)
 Link: https://www.icj-cij.org/files/case-related/50/050-19700205-JUD-01-00-
EN.pdf