International Law Solutions to Philippine Law Problems:

A 7-Step Process

Andre Palacios*
16 July 2021

The Philippine Supreme Court has sought to find “International Law solutions” to “Philippine
Law problems” on numerous occasions. In cases decided by the Supreme Court, the court has
applied rules of Public International Law (“PIL”) in order to resolve Philippine legal issues.
These PIL rules that were interpreted and applied by the Supreme Court include:

1. Rules embodied in international agreements such as

(a) a tax treaty;1
(b) an extradition treaty;2
(c) a civil aviation treaty;3
(d) treaties providing for the immunity of diplomats,4 officers,5 and warships 6 of
foreign states;
(e) treaties providing for the immunity of international organizations 7 and their staff;8
(f) a treaty concerning foreign military personnel;9 and
(g) a treaty to eliminate discrimination against women; 10 and
2. Rules of customary international law on
(a) the immunity of foreign states;11
(b) human rights;12 and
(c) the reduction of statelessness and conflicts in nationality laws.13

*
Assistant Professor and LL.M. Deputy Director, University of the Philippines College of Law, teaching
international law in the Juris Doctor and Master of Laws programs. Concurrently, member, Philippine Judicial
Academy’s corps of professors for international law; Executive Director, ASEAN Law Institute; and Chairman,
International Law and International Affairs Committee, Integrated Bar of the Philippines. LL.B., University of
the Philippines; LL.M. (Public International Law) (with merit), University College London (British Chevening
Scholar).
1
Deutsche Bank AG Manila Branch v. Commissioner of Internal Revenue, G.R. No. 188550, August 19, 2013;
Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, January 11, 2016.
2
Government of Hongkong Special Administrative Region v. Muñoz, G.R. No. 207342, November 7, 2017.
3
American Airlines v. Court of Appeals, G.R. No. 116044-45, March 9, 2000; Santos III v. Northwest Orient
Airlines, G.R. No. 101538, June 23, 1992; Lhuillier v. British Airways, G.R. No. 171092, March 15, 2010.
4
Minucher v. Court of Appeals, G.R. No. 142396, February 11, 2003; Republic of Indonesia v. Vinzon, G.R.
No. 154705, June 26, 2003.
5
United States of America v. Judge Guinto, G.R. No. 76607, February 26, 1990.
6
Arigo v. Swift, G.R. No. 206510, September 16, 2014.
7
Department of Foreign Affairs v. National Labor Relations Commission, G.R. No. 113191, September 18,
1996.
8
Liang v. People, G.R. No. 125856, March 26, 2001.
9
Nicolas v. Romulo, G.R. No. 175888, February 11, 2009; BAYAN MUNA v. Romulo, G.R. No. 159618,
February 1, 2011.
10
Alanis v. Court of Appeals, G.R. No. 216425, November 11, 2020.
11
Republic of Indonesia v. Vinzon, G.R. No. 154705, June 26, 2003.
12
Republic v. Sandiganbayan, G.R. No. 104768, July 21, 2003.
13
Poe-Llamanzares v. Commission on Elections, G.R. No. 221697, March 8, 2016.
 Palacios, International Law Solutions to Philippine Law Problems

The national legal system of each State has its own unique way of applying PIL rules to
resolve legal issues pending before its national courts.14 In the Philippine legal system, PIL
rules may be applied by Philippine national courts following this 7-step process:

Step 1. Identify the PIL rule.

Step 2. Identify the formal and material sources of the PIL rule.
Step 3. Determine whether the PIL rule is binding upon the Philippine State under the
international legal system.
Step 4. Determine whether the PIL rule has been domesticated into a Philippine legal
rule in the Philippine legal system.
Step 5. Identify the place of the domesticated PIL rule in the hierarchy of rules in the
Philippine legal system.
Step 6. Determine the effect of the domesticated PIL rule on Philippine legal rules that
came from domestic sources.
Step 7. Determine whether the domesticated PIL rule can be applied in a Philippine case
to obtain the desired relief under the Philippine legal system.

Separate Legal Systems

0.1. A Philippine national court that will apply a PIL in a Philippine case will need to follow
the 7-step process of analysis because the Philippine national legal system follows the
“dualist view.” Justice Brion explained the dualist view as follows:

“Under [the dualist view], the Philippines sees international law and its international
obligations from two perspectives: first, from the international plane, where
international law reigns supreme over national laws; and second, from the domestic
plane, where the international obligations and international customary laws are
considered in the same footing as national laws, and do not necessarily prevail over
the latter. The Philippines’ treatment of international obligations as statutes in its
domestic plane also means that they cannot contravene the Constitution, including the
mandated process by which they become effective in Philippine jurisdiction.” 15

0.2. Under the dualist view, the international legal system and the Philippine national legal
system are viewed as separate and distinct, each with (1) its own ways of creating,
interpreting, and enforcing the rules in its system, and (2) its own hierarchy of rules. The
relationship between the international legal system, on one hand, and the Philippine national
legal system, on the other hand, as seen from the dualist view, is illustrated in the diagram
below.

14
Nicolas v. Romulo, G.R. No. 175888, February 11, 2009.
15
Separate Concurring Opinion in Intellectual Property Association of the Philippines v. Ochoa, G.R. No.
204605, July 19, 2016.

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 Palacios, International Law Solutions to Philippine Law Problems

PIL rules Philippine

legal rules

International Legal Philippine Legal

System System

Diagram 1. Relationship between the international legal system and the Philippine national legal system
according to the dualist view.

0.3. The Philippine national legal system has its own unique ways of creating binding
Philippine legal rules. In the Philippine legal system, binding rules are created through any
one of the following ways:

(1) the Filipino people, exercising their power as “the Sovereign”, creates the
fundamental rules that are embodied in a document called the “Constitution”;
(2) the Congress, exercising the legislative power delegated to the Congress by the
Filipino people, creates rules that are embodied in statutes;
(3) the President and the various offices of the Executive Department, exercising
rulemaking powers delegated by the Filipino people under the Constitution or by the
Congress under statutes, create rules that are embodied in executive issuances, such as
Executive Orders and Administrative Orders by the President and implementing rules
and regulations by the departments;
(4) the Supreme Court, exercising rulemaking powers delegated by the Filipino people or
the Congress, creates rules that are embodied in the Rules of Court and other
procedural rules; and
(5) the local government units, exercising rulemaking powers delegated by the Congress,
create rules that are embodied in local ordinances.
(6) Additionally, Philippine legal rules are also created through the domestication of PIL
rules.

0.4. The binding Philippine legal rules created through the six ways listed above are arranged
according to a hierarchy. The hierarchy of rules in the Philippine national legal system is as
follows: (a) on the first tier (“PH Tier 1”) are the constitutional rules; (b) on the second tier
(“PH Tier 2”) are the statutory rules; and (c) on the third tier (“PH Tier 3”) are the rules
created by the Executive Department, the Supreme Court, and the local government units.

0.5. In contrast, the international legal system has its own unique ways of creating
international legal rules. In the international legal system, binding rules are created through
any one of the following ways:

(1) States and international organizations may create conventional rules by entering into
international agreements;

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 Palacios, International Law Solutions to Philippine Law Problems

(2) States may create customary rules through their general and consistent practice
performed with opinio juris; and
(3) Rules may be created by deriving general principles of law from national legal
systems.

0.6. The binding international legal rules created through the three ways listed above are
arranged according to a hierarchy. The hierarchy of rules in the international legal system is
as follows:

(1) On the first tier (“PIL Tier 1”) are the jus cogens rules [1], i.e., customary rules that
are of a special character and from which States are not allowed to derogate;
(2) On the second tier (“PIL Tier 2”) are
a. the ordinary customary rules [2] and
b. the conventional rules, i.e., rules embodied in international agreements which,
under the Philippine legal system, are categorized as either treaty [3] or executive
agreement [4]) and, and
(3) On the third tier (“PIL Tier 3”) are the general principles of law [5].

0.7. As the Philippine national legal system is separate from the international legal system, a
PIL rule is not considered a rule in the Philippine national legal system unless it is first
converted, or “domesticated”, into a Philippine legal rule. The dualist view is reflected in the
following constitutional provisions:

(1) Article II, Section 2 of the Constitution, also known as the Incorporation Clause,
which provides: “The Philippines…adopts the generally accepted principles of
international law as part of the law of the land.” Under the Incorporation Clause, PIL
rules that are “generally accepted principles of international law” (i.e., rules of general
customary international law16) are domesticated into Philippine legal rules and made
“part of the law of the land.”
(2) Article VIII, Section 5(2)(a) of the Constitution which grants the Supreme Court the
power to review decisions of lower courts in “[a]ll cases in which the constitutionality
or validity of any treaty [or] international or executive agreement…is in question.”
This provision shows that (a) domesticated PIL rules embodied in a treaty or an
executive agreement must conform to the hierarchy of rules in the Philippine legal
system and may be declared unconstitutional if they conflict with any constitutional
rules; and (b) domesticated PIL rules embodied in an executive agreement may be
declared invalid if they conflict with any statutory rules or any domesticated PIL rules
embodied in a treaty.

16
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary, G.R. No. 173034, October
9, 2007.

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 Palacios, International Law Solutions to Philippine Law Problems

Step 1. Identify the PIL rule

1.1. The rule that is being considered for application in a Philippine case must be a rule of
public international law, and not a mere moral rule or political rule. If the rule is merely a
moral rule or a political rule, then it is not binding or obligatory upon the Philippine State
and, thus, will not be domesticated into the Philippine national legal system.

1.2. A PIL rule is “one that has been accepted as such by the international community of
States” in the form of customary or conventional law or general principle of law.17 A PIL rule
constitutes “hard law” that is binding and creates legal rights and obligations under the
international legal system.

1.3. A PIL rule must be distinguished from “soft law” which refers to norms, principles, and
practices that are non-binding and do not create any legal rights or obligations, but
nonetheless influence the behavior of States. 18

1.4. After identifying the PIL rule, it is important to (1) determine the legal rights and
obligations created by such PIL rule under the international legal system; and (2) identify the
bearers of these legal rights and obligations under the international legal system.

Step 2. Identify the formal and material sources of the PIL rule.

2.1. The “formal source” of the PIL rule must be identified. The formal source determines the
manner by which the PIL rule will be domesticated into the Philippine national legal system.
The “material source” of the PIL rule must also be identified as it constitutes the evidence of
the content of the PIL rule (i.e., what the rule provides or prohibits).

2.2. Formal Source. A PIL rule is considered binding because it was created through one of
the three processes accepted by the international community of States as capable of creating
legal rules in the international legal system. These processes are called the “formal sources”
of law as they refer to the form of the legal rules (in contrast to their substance or content).
The three formal sources of PIL rules are:

1. Custom. Customary international law, also known as customary law, is created

through “the general and consistent practice of States followed by them from a sense
of legal obligation;”19
2. Treaty. Conventional international law, also known as treaty law, is created through
international agreements between States, or between States and international
organizations, or between international organizations; and
3. General Principle of Law. General principles of law are created as PIL rules by
deriving these principles from the national legal systems.

17
AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES
(“RESTATEMENT”), Section 102.
18
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary, G.R. No. 173034, October
9, 2007.
19
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary, G.R. No. 173034, October
9, 2007, citing the RESTATEMENT.

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 Palacios, International Law Solutions to Philippine Law Problems

2.3. These formal sources of PIL rules are referenced in the Statue of the International Court
of Justice:

“Art. 38 (1). The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
“a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
“b. international custom, as evidence of a general practice accepted as law;
“c. the general principles of law recognized by civilized nations;
“d. subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.”

2.4. Material Source. The material source of a rule of conventional international law is the
text of the international agreement itself. The text of the agreement is the evidence of the
content of the conventional rule (i.e., what it provides or prohibits).

2.5. The primary material source of a rule of customary international law is the general and
consistent practice of States performed with opinio juris, consisting of the numerous
declarations and acts made by the various States through their organs and representatives.
The secondary material sources of a customary rule are ”judicial decisions and the teachings
of the most highly qualified publicists of the various nations”, both of which serve as
“subsidiary means for the determination of rules of law.”20

Step 3. Determine whether the PIL rule is binding upon the Philippine State under the
international legal system.

3.1. It is important to determine whether the PIL rule being considered for application in a
Philippine case is binding on the Philippine State. If the PIL rule is not binding on the
Philippine State, then such rule has not been domesticated into the Philippine national legal
system and thus, cannot be applied in a Philippine case as a domesticated PIL rule. However,
if the PIL rule is binding on the Philippine State, then there is a possibility that such rule has
been domesticated into the Philippine national legal system and thus, can be applied in a
Philippine case.

3.2. If the PIL rule is a rule of general customary international law, then such rule is binding,
under the international legal system, on all States, except those States that have been
“persistent objectors” since before the formation of the general customary rule. It is important
to determine whether the Philippine State qualifies as a “persistent objector.”

3.3. If the PIL rule is a rule of regional customary international law, then such rule is
binding, under the international legal system, on all States located within the geographic
region where such regional customary rule exists, except those States that have been
“persistent objectors” since before the formation of the regional customary rule. It is
important to determine (i) whether the Philippine State belongs to the geographic region
where the regional customary rule is binding, and (ii) if indeed the Philippine State belongs to
such geographic region, whether the Philippine State qualifies as a “persistent objector.”

20
Art. 38(1)(d), Statute of the ICJ.

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 Palacios, International Law Solutions to Philippine Law Problems

3.4. If the PIL rule is a rule of conventional international law, then it is necessary to:

1. Examine the provisions of the international agreement to determine the mode required
by the agreement for expressing a State’s consent to be bound (e.g., mere signature, or
signature and the subsequent deposit of an instrument of ratification);
2. Determine whether the Philippine State has complied with the requirements of the
international agreement for expressing a State’s consent to be bound (e.g., whether the
Philippine State’s representatives have signed the agreement and have subsequently
deposited the instrument of ratification);
3. Determine whether the Philippine State made any reservations when it expressed its
consent to be bound by the international agreement; and
4. Determine whether the international agreement has entered into force in respect of the
Philippine State according to the terms of such agreement.

3.5. By way of example, an international agreement may require States to express their
consent to be bound to the agreement, through the two-step process of signature and
ratification.

1. Signatory. Where an international agreement requires the two-step process, a State

that has taken the first step (signature) but has not taken the second step (ratification),
will be considered a “signatory” to the agreement. A signatory State is not yet a party
to the international agreement and, thus, is not bound by such agreement.
Notwithstanding the fact that the signatory State is not yet a party to the international
agreement, such State has the obligation, under customary and conventional
international law, to refrain from committing acts that would defeat the object and
purpose of the said agreement.21
2. Party. Where a State has taken both steps (signature and ratification), then such State
is considered a “party” (not a mere signatory) to the international agreement. If an
international agreement is in force, then, under the principle of pacta sunt servanda, a
State that is a party to such agreement is bound by it and is required to perform its
obligations under such agreement in good faith. 22

3.6. If the PIL rule is a general principle of law, then such rule is binding, under the
international legal system, on all States, including the Philippine State.

21
Vienna Convention on the Law of Treaties Between States, Article 18.
22
Vienna Convention on the Law of Treaties Between States, Article 26.

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 Palacios, International Law Solutions to Philippine Law Problems

Step 4. Determine whether the PIL rule has been domesticated into a Philippine legal
rule in the Philippine legal system.

4.1. If the PIL rule is a “generally accepted principle of international law” (i.e., a rule of
general customary international law 23), then such PIL rule has been domesticated into the
Philippine national legal system by way of incorporation under the Incorporation Clause
(Article II, Section 2) of the Constitution.

4.2. If the PIL rule is embodied in an international agreement, the process of its domestication
depends on the status of the international agreement under the Philippine national legal
system (not under the international legal system). Under the Philippine national legal system,
an international agreement is either (a) a treaty or (b) an executive agreement.

4.3. In the Philippine national legal system, the term “treaty” is given a narrow meaning, and
is used to refer to a type of international agreement that requires Senate concurrence. In
contrast, in the international legal system, the term “treaty” is given a broad meaning, and is
used to refer to any kind of international agreement, including those agreements that, under
Philippine law, do not require Senate concurrence.

4.4. If the PIL rule is embodied in a treaty (as the term is used in its restrictive sense in the
Philippine national legal system), then such PIL rule is required to be domesticated into the
Philippine national legal system by way of transformation under the Treaty Clause (Article
VII, Section 21) of the Constitution, which provides: “No treaty or international agreement
shall be valid and effective unless concurred in by at least two-thirds of all the Members of
the Senate.” For a PIL rule that is embodied in a treaty (as the term is used in its restrictive
sense in the Philippine national legal system), it is necessary to determine whether:

1. The Philippine President has (a) signed the instrument of ratification of the
international agreement, and (b) transmitted the signed instrument of ratification to
the Philippine Senate for concurrence; and
2. The Philippine Senate has adopted a Senate resolution wherein at least two-thirds of
all the Members of the Senate concurred in the President’s ratification of the
international agreement.

4.5. If the PIL rule is embodied in an executive agreement, then such PIL rule is domesticated
into the Philippine national legal system through its ratification by the Philippine President,
without need of Senate concurrence. 24 The Supreme Court explained the domestication of
rules embodied in executive agreements as follows:

“The concurrence of [the Senate] is required by our fundamental law in the making of
‘treaties’…, which are, however, distinct and different from ‘executive agreements’,
which may be validly entered into without such concurrence.” 25

23
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary, G.R. No. 173034, October
9, 2007.
24
Executive Order No. 459, November 25, 1997, Section 2(c).
25
Commissioner of Customs v. Eastern Sea Trading, G.R. No. L-14279, October 31, 1961.

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 Palacios, International Law Solutions to Philippine Law Problems

4.6. The Supreme Court explained the domestication of (1) customary rules through
incorporation and (2) treaty rules through transformation, as follows:

“Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation….The incorporation method
applies when, by mere constitutional declaration, international law is deemed to have
the force of domestic law….Treaties become part of the law of the land
through transformation pursuant to [the Treaty Clause]. Thus, treaties or conventional
international law must go through a process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to domestic conflicts.” 26

4.7. The Philippine Supreme Court has noted that, in the legal system of the United States of
America, international agreements concluded by USA are domesticated into the US legal
system (1) without need of implementing legislation if such agreements are “self-executing”;
or (2) through implementing legislation if such agreements are not “self-executing.”27 The
Supreme Court has not elaborated on whether the concept of “self-executing” international
agreements applies to agreements concluded by the Philippine State.

Step 5. Identify the place of the domesticated PIL rule in the hierarchy of rules in the
Philippine legal system.

5.1. As stated above, the hierarchy of rules in the Philippine national legal system is as
follows: (a) on the first tier (“PH Tier 1”) are the constitutional rules; (b) on the second tier
(“PH Tier 2”) are the statutory rules; and (c) on the third tier (“PH Tier 3”) are the rules
created by the Executive Department, the Supreme Court, and the local government units.

5.2. Upon the domestication of a “generally accepted principle of international law” (i.e., an
ordinary rule of general customary international law) into the Philippine national legal
system, the domesticated PIL rule becomes “part of the law of the land” and has the same
status as a statutory rule, i.e., on the second tier in the hierarchy of rules in the Philippine
legal system (PH Tier 2).

5.3. Upon the domestication of a PIL rule that is embodied in a treaty (as the term is used in
its restrictive sense under Philippine law) into the Philippine legal system, the domesticated
PIL rule has the same status as a statutory rule, i.e., on the second tier in the hierarchy of
rules in the Philippine legal system (PH Tier 2). According to the Supreme Court, “treaties
form part of the law of the land.” 28 “Treaties…have the impact of statutory law in the
Philippines.”29

5.4. Upon the domestication of a PIL rule that is embodied in an executive agreement into the
Philippine legal system, the domesticated PIL rule has the same status as a rule embodied in
an executive regulation, i.e., on the third tier in the hierarchy of rules in the Philippine legal

26
Pharmaceutical and Health Care Association of the Philippines v. Health Secretary, G.R. No. 173034, October
9, 2007
27
Ram Singh v. Insular Collector of Customs, G.R. No. 13669, October 25, 1918; Nicolas v. Romulo, G.R. No.
175888, February 11, 2009.
28
Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, January 11, 2016.
29
J. Brion, Separate Concurring Opinion in Intellectual Property Association of the Philippines v. Ochoa, G.R.
No. 204605, July 19, 2016.

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 Palacios, International Law Solutions to Philippine Law Problems

system (PH Tier 3). According to the Supreme Court, “executive agreements…are at the
level of implementing rules and regulations or administrative orders in the domestic
sphere.”30

5.5. The place occupied by domesticated PIL rules in the hierarchy of rules in the Philippine
national legal system is illustrated in the diagram below.

Diagram 2. The hierarchy of rules under the international legal system, on one hand, and the hierarchy of rules
under the Philippine national legal system, on one hand, and arrows to illustrate the place of PIL rules in the
Philippine hierarchy of rules.

Step 6. Determine the effect of the domesticated PIL rule on Philippine legal rules that
came from domestic sources.

6.1. In Step 1, it was important to (1) determine the legal rights and obligations created by the
PIL rule under the international legal system; and (2) identify the bearers of these legal rights
and obligations under the international legal system (e.g., the Philippine State is the bearer of
the international obligation created by the PIL rule).

6.2. In Step 6, it is important to (1) determine the legal rights and obligations created by the
domesticated PIL rule under the Philippine legal system; and (2) identify the bearers of these
legal rights and obligations under the Philippine legal system (e.g., a specific agency in the
Executive Department is the bearer of the Philippine obligation created by the domesticated
PIL rule).

6.3. First possible effect (fill a gap), If the domesticated PIL rule concerns a matter that is not
covered by Philippine legal rules that came from domestic sources (e.g., the Constitution or
statutes), then the domesticated PIL rule may be said to have filled a gap in the Philippine
legal system. A domesticated PIL rule that fills a gap in the Philippine legal system may
create new Philippine legal rights or obligations. In Republic v. Sandiganbayan:31

30
J. Brion, Separate Concurring Opinion in Intellectual Property Association of the Philippines v. Ochoa, G.R.
No. 204605, July 19, 2016.
31
G.R. No. 104768, July 21, 2003.

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 Palacios, International Law Solutions to Philippine Law Problems

1. During the period of February 25-March 24, 1986 (known as the interregnum), there
was a gap in the Philippine legal rules protecting individuals against unreasonable
searches and seizures, as there was no Constitution, Bill of Rights, or Exclusionary
Rule in force in the Philippines at the time;
2. Certain PIL rules, in the form of customary law reflected in the Universal Declaration
of Human Rights and of treaty law embodied in the International Covenant on Civil
and Political Rights, protected individuals against unreasonable searches and seizures;
3. These PIL rules were binding on the Philippine State under the international legal
system; and
4. These PIL rules filled the temporary gap in the Philippine legal system (when there
were no Philippine legal rules protecting individuals against unreasonable searches
and seizures) by creating a new Philippine legal right that protected individuals
against unreasonable searches and seizures.

6.4. Second possible effect (conflict). If the domesticated PIL rule concerns a matter that is
covered by a Philippine legal rule that came from a domestic source, and the domesticated
PIL rule conflicts with such Philippine legal rule, then the conflict between the domesticated
PIL rule and the Philippine rule should be resolved by analyzing the conflict and applying the
appropriate rules of statutory interpretation in the sequence described below. According to
the Supreme Court, “rules of [statutory] interpretation apply even though one of the sources
is a treaty and not simply a statute.” 32 This sequential application of rules of statutory
interpretation is called “sequential analysis.”

6.4.1. Type (lex superior derogat inferiori). First, (1) determine what type of domesticated
PIL rule is involved (i.e., whether it is a customary rule, a treaty rule, or an executive
agreement rule); (2) determine what type of Philippine legal rule conflicts with the
domesticated PIL rule (i.e., whether it is a constitutional rule on PH Tier 1, a statutory rule
on PH Tier 2, or a rule on PH Tier 3 or the third tier of the hierarchy of rules in the
Philippine legal system); and (3) apply the principle of lex superior derogat inferiori.

6.4.1.1. Any PIL rule (on PH Tier 2 or PH Tier 3) versus a constitutional rule (on PH
Tier 1). If a domesticated PIL rule of any type conflicts with a constitutional rule, then
the constitutional rule shall prevail because
1. the character of the constitutional rule is superior to that of any type of
domesticated PIL rule; and
2. the constitutional rule occupies a higher tier in the hierarchy of rules in the
Philippine legal system.

6.4.1.2. Customary or treaty rule (on PH Tier 2) versus a statutory rule (on PH Tier 2).
If a domesticated PIL rule that is embodied in customary international law or a treaty
conflicts with a statutory rule, then the conflict cannot be resolved on the basis of the
principle of lex superior derogat inferiori because
1. the character of the domesticated PIL rule embodied in customary international law
or in a treaty is not superior to that of the statutory rule; and
2. the domesticated PIL rule embodied in customary international law or in a treaty,
on one hand, and the statutory rule, on the other hand, occupy the same tier in the
hierarchy of rules in the Philippine legal system.

32
Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, January 11, 2016.

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 Palacios, International Law Solutions to Philippine Law Problems

6.4.1.3. Customary or treaty rule (on PH Tier 2) versus an executive regulation rule (on
PH Tier 3). If a domesticated PIL rule that is embodied in customary international law
or in a treaty conflicts with a rule embodied in an executive regulation, then the
domesticated PIL rule embodied in customary international law or in a treaty shall
prevail because
1. the character of the domesticated PIL rule embodied in customary international law
or in a treaty, on one hand, is superior to that of the rule embodied in the executive
regulation, on the other hand; and
2. the domesticated PIL rule embodied in customary international law or in a treaty
occupies a higher tier in the hierarchy of rules in the Philippine legal system.

6.4.1.4. Executive agreement rule (on PH Tier 3) versus a statutory rule (on PH Tier 2).
If a domesticated PIL rule that is embodied in an executive agreement conflicts with a
statutory rule, then the statutory rule shall prevail because
1. the character of the statutory rule is superior to that of the rule embodied in the
executive regulation; and
2. the statutory rule occupies a higher tier in the hierarchy of rules in the Philippine
legal system. “[L]ike implementing rules of executive agencies, executive
agreements cannot amend or repeal prior laws but must comply with the laws they
implement.”33 “Executive agreements - which are at the level of implementing
rules and regulations or administrative orders in the domestic sphere - … cannot
contravene or amend statutory enactments and treaties.”34

6.4.1.5. Executive agreement rule (on PH Tier 3) versus an executive regulation rule
(on PH Tier 3). If a domesticated PIL rule that is embodied in an executive agreement
conflicts with a rule that is embodied in an executive regulation, then the conflict
cannot be resolved on the basis of the principle of lex superior derogat inferiori
because
1. the character of the domesticated PIL rule embodied in the executive agreement is
not superior to that of the rule embodied in the executive regulation; and
2. the domesticated PIL rule embodied in the executive agreement and the rule
embodied in the executive regulation occupy the same tier in the hierarchy of rules
in the Philippine legal system.

6.4.2. Terms (lex specialis derogat generali). Second, if the conflict between the
domesticated PIL rule and the existing Philippine rule cannot be resolved on the basis of
the principle of lex superior derogat legi inferiori because they occupy the same tier in the
hierarchy of rules in the Philippine legal system (e.g., both are on PH Tier 2, or both are
on PH Tier 3), then (1) determine the degree of specificity of their respective terms and
provisions; and (2) apply the principle of lex specialis derogat generali.

1. Lex specialis v. Lex posterior. The Supreme Court has applied a form of “sequential
analysis" in resolving a conflict between a Philippine legal rule and a domesticated

33
J. Carpio, Dissenting Opinion in Suplico v. National Economic and Development Authority, G.R. No.
178830, July 14, 2008.
34
J. Brion, Separate Concurring Opinion in Intellectual Property Association of the Philippines v. Ochoa, G.R.
No. 204605, July 19, 2016.

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PIL rule: “Ordinarily, the later provision governs over the earlier one. In this case,
however, the provisions of the…Treaty are more specific than the provisions found in
the [Philippine statute].”35

2. More specific terms. The domesticated PIL rule shall prevail over the Philippine legal
rule where (i) the terms and provisions of a domesticated customary or treaty rule are
more specific than those of a conflicting statutory rule, or (ii) the terms and provisions
of a domesticated executive agreement rule are more specific than those of a
conflicting executive regulation.

3. Less specific terms. The Philippine legal rule shall prevail over the domesticated PIL
rule where (i) the terms and provisions of a domesticated customary or treaty rule are
less specific than those of a conflicting statutory rule, or (ii) the terms and provisions
of a domesticated executive agreement rule are less specific than those of a conflicting
executive regulation.

4. Same degree of specificity. The conflict cannot be resolved on the basis of the
principle of lex specialis derogat generali where (i) the terms and provisions of a
domesticated customary or treaty rule are of the same degree of specificity as those of
a conflicting statutory rule, or (ii) the terms and provisions of a domesticated
executive agreement rule are of the same degree of specificity as those of a conflicting
executive regulation.

6.4.3. Time (lex posterior derogat priori). Third, if the conflict between the domesticated
PIL rule and the existing Philippine rule cannot be resolved on the basis of the principle of
lex specialis derogat generali because their terms and provisions are of the same degree of
specificity, then (1) determine which came later in time; and (2) apply the principle of lex
posterior derogat priori. “The later provision governs over the earlier one.” 36

1. Later in time. The domesticated PIL rule shall prevail over the Philippine legal rule
where (i) a domesticated customary or treaty rule (with terms and provisions having
the same degree of specificity as those of a conflicting statutory rule) took effect later
than the conflicting statutory rule, or (ii) a domesticated executive agreement rule
(with terms and provisions having the same degree of specificity as those of a
conflicting executive regulation) took effect later than the conflicting executive
regulation.

2. Earlier in time. The Philippine legal rule shall prevail over the domesticated PIL rule
where (i) a domesticated customary or treaty rule (with terms and provisions having
the same degree of specificity as those of a conflicting statutory rule) took effect
earlier than the conflicting statutory rule, or (ii) a domesticated executive agreement
rule (with terms and provisions having the same degree of specificity as those of a
conflicting executive regulation) took effect earlier than the conflicting executive
regulation.

35
Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, January 11, 2016.
36
Air Canada v. Commissioner of Internal Revenue, G.R. No. 169507, January 11, 2016.

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6.4.4. Sequential Analysis Matrix. Below is a matrix illustrating the possible outcomes, on
the basis of “sequential analysis”, in case of a conflict between a domesticated PIL rule
and a Philippine rule that came from a domestic source. Sequential analysis is the process
of applying rules of statutory interpretation, such as lex superior derogat inferiori, lex
specialis derogat generali, and lex posterior derogat priori, in the correct sequence.

Diagram 3. Possible outcomes, on the basis of “sequential analysis”, in case of a conflict between a
domesticated PIL rule and a Philippine rule that came from a domestic source.

6.5. Third possible effect (re-interpretation). It is possible that a domesticated PIL rule that
concerns a matter that is covered by Philippine legal rules that came from domestic sources,
will result in the re-interpretation of such Philippine rules. Such a re-interpretation of
Philippine legal rules that came from domestic sources may strengthen any existing
Philippine legal rights, or clarify any existing Philippine legal obligations, that arise from
such Philippine legal rules.

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Step 7. Determine whether the domesticated PIL rule can be applied in a Philippine
case to obtain the desired relief under the Philippine legal system.

7.1. Prohibit. The domesticated PIL rule can be applied in a Philippine case as basis to
prohibit certain actions by a government or private entity.

1. In United States of America v. Judge Guinto,37 the Supreme Court applied

domesticated treaty rules embodied in the Philippines-US Military Bases Agreement
to prohibit a trial judge from trying a civil action on the ground that the defendants
were covered by the immunity of a foreign State.

7.2. Compel. The domesticated PIL rule can be applied as basis to compel a government or
private entity to perform certain actions.

1. In Deutsche Bank AG Manila Branch v. Commissioner of Internal Revenue,38 the

Supreme Court applied domesticated PIL rules embodied in the Philippines-Germany
Tax Treaty to compel the BIR to refund the taxpayer or issue a tax credit certificate.
2. In Nicolas v. Romulo,39 the Supreme Court applied domesticated PIL rules embodied
in the Philippines-US Visiting Forces Agreement to compel the Secretary of Foreign
Affairs to negotiate with the US on appropriate detention facilities for US military
personnel convicted of committing a Philippine crime.
3. In Republic v. Sandiganbayan,40 the Supreme Court applied domesticated customary
rules reflected in the Universal Declaration of Human Rights and domesticated treaty
rules embodied in the International Covenant on Civil and Political Rights, to compel
public prosecutors to return to an accused certain personal items that were seized in a
manner contrary to the domesticated PIL rules.

7.3. Authorize. The domesticated PIL rule can be applied as basis to authorize a government
or private entity to perform certain actions.

1. In Air Canada v. Collector of Internal Revenue,41 the Supreme Court applied

domesticated PIL rules embodied in the Philippines-Canada Tax Treaty to authorize
the denial of a taxpayer’s tax refund claim.
2. In Intellectual Property Association of the Philippines v. Ochoa,42 the Supreme Court
applied domesticated PIL rules embodied in the Madrid Protocol to authorize the
Intellectual Property Office to implement the said protocol.
3. In Government of Hongkong Special Administrative Region v. Muñoz,43 the Supreme
Court applied domesticated PIL rules embodied in the Philippines-Hong Kong
Extradition Agreement to authorize the exclusion of certain charges from the criminal
case against the person sought to be extradited.

37
G.R. No. 76607, February 26, 1990.
38
G.R. No. 188550, August 19, 2013.
39
G.R. No. 175888, February 11, 2009.
40
G.R. No. 104768, July 21, 2003.
41
G.R. No. 169507, January 11, 2016.
42
G.R. No. 204605, July 19, 2016.
43
G.R. No. 207342, August 16, 2016.

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4. In Santos III v. Northwest Orient Airlines,44 the Supreme Court applied domesticated
PIL rules embodied in the Warsaw Convention to authorize a trial court to dismiss an
action concerning international air carriage on the ground of lack of subject-matter
jurisdiction.

7.4. Status. The domesticated PIL rule can be used as basis to declare the legal validity (or
invalidity) of certain actions.

1. In Nicolas v. Romulo,45 the Supreme Court applied domesticated PIL rules embodied
in the Philippines-US Visiting Forces Agreement as basis to invalidate (i.e., “not in
accordance with the VFA”) the Romulo-Kenney agreements on the detention of US
military personnel convicted of committing a Philippine crime.
2. In Department of Foreign Affairs v. National Labor Relations Commission,46 the
Supreme Court applied domesticated PIL rules embodied in the Asian Development
Bank Charter and Philippines-ADB Headquarters Agreement to void a decision of a
labor arbiter against the ADB.

44
G.R. No. 101538, June 23, 1992.
45
G.R. No. 175888, February 11, 2009.
46
G.R. No. 113191, September 18, 1996.

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