ART VIII Section 1.
The judicial power shall be vested in one Supreme Court and in such lower Theories of International Law?
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
SEC. 5.
The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting ambassadors, other public
ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
(2) Review, revise, modify , or affirm on appeal on certiorari, as the law or the Rules
of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international
or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question.
(b) All cases involving the legality of any tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.
(c) All cases in which the jurisdiction of any lower court is in issue.
(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.
(e) All cases in which only an error or question of law is involved.
(3) Assign temporarily judges of lower courts to other stations as public interest
may require. Such temporary assignment shall not exceed six months without the
consent of the judge concerned.
(4) Order a change of venue or place of trial to avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection and enforcement of constitutional
rights, pleading, practice, and procedure in all courts, the admission to the practice
of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules
shall provide a simplified and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme
Court.
(6) Appoint all officials and employees of the judiciary in accordance with the Civil
Service Law.
A.Democratic
The democracy obligation is part of the law of international conventions and
of customary international law. This international legal rule includes the following
four demands from states: (1) the holding of regular, free, and competitive
elections, (2) the existence of a multi-party system, (3) the guarantee of basic
human rights and (4) constitutional legality or rather the presence of a state under
the rule of law.
The democracy obligation has both an abstract and a concrete dimension
for the state with regard to international law. The abstract dimension is that the
people are the only sovereigns and, hence, that there is a commitment to transfer
the sovereignty of the people – which is based upon the sovereignty of the individual
as the genuine sovereign of international law – to the state as a precondition for the
sovereignty of the state. This idea contradicts the classical concept of sovereignty,
which allocates sovereignty to each state a priori and does not require any transfer
of sovereignty. The concrete dimension means for undemocratic states, for
example, that the principle of non-intervention guarantees them less protection
from external interference. The existence of the democracy obligation also has far-
reaching consequences for the international legal order itself. One example is that
this new principle plays an important role for the transition of international law
towards an international legal system that is constitutionalized and based on values.
B.Hegemonic
In international politics, hegemony refers to dominance or authority
exercised by one state or group of states over others. Hegemony is simultaneously
material, ideational, and relational. Hegemonic states typically enjoy a
preponderance of material capabilities, both military and economic. They also
establish the legitimacy of a particular type of international order, regional or global,
that reflects and reinforces their national values and interests. Hegemonic states
establish and maintain the rules of the international game. But hegemony is not
simply coercive; it also implies a meaningful degree of acquiescence on the part of
other major states in the system. Hegemony involves authority; the dominant state
exercises it and other states at least to some degree accept it. Leaders need
followers or collaborators. Hegemony works best when other states accept the
leading role of the hegemonic state and view the order it has created as beneficial
and desirable. Hegemony should be distinguished analytically from unipolarity. The
latter term refers to a distribution of material capabilities in which one state is
unambiguously superior to any others.
A.Municipal law
refers to the internal law of a sovereign state. Municipal law includes state,
provincial, territorial, regional, or local law of a state.
Municipal law is not the law of the city only, but the law of the state.
[Louisville v. Babb, 75 F.2d 162, 166 (7th Cir. Ind. 1935)]. A municipal law has two
meanings. Broadly and classically it means the laws pertaining to the internal
government of a State or nation. In its more modern and narrower connotation it
means those laws which pertain to towns, cities and villages and their local
governments.
B.Public International Law
Is the body of legal rules, which apply to sovereign states and such other
entities that have been granted international personality.
Continuing process of authoritative decisions which include policy
considerations forming an integral part of the decision-making process.
[Jocelyn Higgins]
C.Conflict of laws, also called private international law, the existence worldwide,
and within individual countries, of different legal traditions, different specific rules of
private law, and different systems of private law, all of which are administered by
court systems similarly subject to different rules and traditions of procedure. The
“law of the conflict of laws” pertains to the resolution of problems resulting from
such diversity of courts and law.
CONFLICT OF LAWSCHAPTER 1: GENERAL PROVISIONSPRIVATE INTERNATIONAL LAW
That part of the law of each State or nation which determines whether, in dealing
with a legal situation, the law or some other State or nation will be recognized, given
effect, or applied (16Am Jur, 2d, Conflict of Laws, §1).
That part of municipal law of a State which directs its courts and administrative
agencies, when confronted with a legal problem involving a foreign element, whether
or not they should apply a foreign law/s (Paras).
NOTE:
A factual situation that cuts across territorial lines and is affected by diverse laws of
two or more States is said to contain a foreign element.
FUNCTIONS OF CONFLICT OF LAW RULES
1. To proscribe the conditions under which a court or agency is competent to
entertain a suit or proceeding involving facts containing a foreign element;
2. To determine the extent, validity and enforceability of foreign judgment
3. To determine for each class of cases the particular system if law by reference to
which the rights of the parties must be ascertained
(DIFFERENCE BETWEEN PRIVATE AND PUBLIC INTERNATIONAL LAWS)
Private International Law
1. issued by apolitical superior for observance by those under its authority
2. consists mainly of enactments from the law-making authority of each state
3. regulates the relations of individuals among
themselves or with their own states
4. violations of municipal law are redressed through local administrative and judicial
processes
5. breaches of municipal law generally entail only individual responsibility
Public International Law
1. Is not imposed upon but simply adopted by states as a common rule of action
among themselves
2. Is derived not from any particular legislation but from such sources as international
customs, international conventions and the general principles of law
3. Applies to the relations inter se of states and other international Persons
4. Questions of public international law are resolved through state-to-state
transactions ranging from peaceful methods like negotiations and arbitration to the
hostile arbitrament of force like war
5. Responsibility for infractions of international law is usually collective in the sense
that it attaches directly to the state and not to its nationals
RELATIONSHIP BETWEEN PUBLIC INTERNATIONAL LAW AND MUNICIPAL LAW
Can international law be made part of municipal/domestic law? Yes, pursuant to
the following doctrines:
A. Doctrine of Incorporation
 By mere constitutional declaration, international law is deemed to have the
force of municipal or domestic law.
 Applicable to customary rules accepted as binding to all states-has the
character of opinion juris sive necessitates (opinion as to law or necessity).

Art. II, Sec. 2 1987 Phil. Const‟n:
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. (JEF, PACo)
B. Doctrine of Transformation
 The generally accepted rules of international law are not per se binding upon
the state but must first be embodied in the legislation enacted by the
lawmaking body and so transformed into municipal law. Only when so
transformed will they become binding upon the state as part of its municipal
law.
Art. VII, Sec. 21 of Phil. Const‟n:
No treaty or international agreement shall be valid and effective unless concurred
in by at least two-thirds of all members of the senate.
Art. VII, Sec. 4- Supreme Court can declare a treaty unconstitutional.
In case of irreconcilable conflict between a treaty and a municipal law, which
should prevail?
First, an effort must be made to reconcile the differences so as to make the two
conflicting laws applicable.
Second, if it cannot be harmonized, the law that should prevail depends on the forum
where the case was filed. If it is filed in the International Court of Justice,
international law prevails; but if it is filed in municipal courts, municipal law prevails
(Philip Morris vs. CA, 224 SCRA 576).
BASIS OF INTERNATIONAL LAW Question: Is International Law a true law?
It depends on the school of thought which one follow.
A. Law of Nature - There is a natural and universal principle of right and wrong,
independent of any mutual intercourse or compact.
B. Positivist Theory - The binding force of international law is derived from the
agreement of sovereign states to be bound by it. It is not a law of subordination but
of coordination.
C. Eclectic Theory - Proposes that both the law of nature and the consent of States
serve as basis of international law; to the effect that the system of international law
is based on the dictate of right reason as well as the practice of states.
Why is Public International Law observed?
Answer: States observed Public International Law because of their:
1. Belief in the reasonableness of the Law of Nations.
2. Fear of being unconventional.
3. Fear of reprisal from other states.
What the functions of Public International Law?
A. The maintenance of international peace and order;
B. The protection of State rights and of fundamental human rights thru sanctions,
both peaceful and coercive;
C. The economic, social, cultural and technological development of states and such
other entities as may be possessed of an international personality.
Primary Sources:
1. Treaties - The general rule is that for a treaty to be considered a direct source of
international law, it must be concluded by sizable number of states and thus, reflect
the will or at least the consensus of the family of nations.
Treaties are known by a variety of terms—conventions, agreements, pacts,
general acts, charters, and covenants—all of which signify written instruments in
which the participants (usually but not always states) agree to be bound by the
negotiated terms. Some agreements are governed by municipal law (e.g.,
commercial accords between states and international enterprises), in which case
international law is inapplicable. Informal, nonbinding political statements or
declarations are excluded from the category of treaties.
Treaties with a number of parties are more likely to have international
significance, though many of the most important treaties (e.g., those emanating
from Strategic Arms Limitation Talks) have been bilateral.
**Multilateral treaties are treaties between 3 or more countries. Bilateral treaties
are treaties between two countries.**
Question:
Are all treaties considered a direct source of international law?
No! If the treaty was not concluded by great body of states, such as bilateral treaties.
But a bilateral treaty is binding between the parties especially if a dispute arose
between them.
2. Custom- A practice which has grown up between states and has come to be
accepted as binding by the mere fact of persistent usage over a long period of time.
Custom is distinguished from usage. The latter while also a long-established way of
doing things by states is not coupled with the conviction that it is obligatory and right.
 State Practice- A pattern of behaviour by states which, if accompanied by a
conviction by those states that their behaviour is required as a matter of
law, may give rise to customary international law.
Requisites/Elements of International Custom
1. Duration or long state practice.
2. Consistency of the state practice or the widespread repetition by states of similar
international acts over time.
3. Generality of the state practice or that the acts are taken by a significant number
of states and not rejected by a significant number of states.
4. Opinio juris sive necessitates or the requirement that the acts must occur out of a
sense of obligation.
Opinio juris sive necessitatis means "an opinion of law or necessity.” It is the
belief that an action was carried out because it was a legal obligation.
Opinio juris sive necessitatis is a source of law in domestic and international cases
because it deals with beliefs. The action should be consistent and internationally
acceptable to qualify as state practice. The principle of International Law is that
where states believe and accept that a practice exists and must be followed because
of a rule of law requiring it, the practice becomes a part of the body of norms known
as International Customary Law.
3. General Principles of Law
Mostly derived from the law of nature and are observed by the majority of
states because they are believed to be good and just (e.g. prescription, estoppel,
consent, res judicata and pacta sunt servanda).
A third source of international law identified by the ICJ’s statute is “the
general principles of law recognized by civilized nations.” These principles essentially
provide a mechanism to address international issues not already subject either to
treaty provisions or to binding customary rules. Such general principles may arise
either through municipal law or through international law, and many are in fact
procedural or evidential principles or those that deal with the machinery of the
judicial process—e.g., the principle, established in Chorzow Factory (1927–28), that
the breach of an engagement involves an obligation to make reparation. Accordingly,
in the Chorzow Factory case, Poland was obliged to pay compensation to Germany
for the illegal expropriation of a factory. Perhaps the most important principle of
international law is that of good faith.
B. Secondary Sources:
These sources are not authorities in deciding a case but only have a
persuasive effect because it only shows the interpretation of a state to a particular
international law.
1. Decisions of international tribunals
2. Writings and teachings of the most highly qualified publicists
International law and municipal law
In principle, international law operates only at the international level and
not within domestic legal systems—a perspective consistent with positivism, which
recognizes international law and municipal law as distinct and independent systems.
Conversely, advocates of natural law maintain that municipal and international law
form a single legal system, an approach sometimes referred to as monism. Such a
system, according to monists, may arise either out of a unified ethical approach
emphasizing universal human rights or out of a formalistic, hierarchical approach
positing the existence of one fundamental norm underpinning both international law
and municipal law.
Ubi Societas Ibi Jus
 is a legal maxim which means ‘where there is society, there is law’. This
maxim revolves around the concept that law and society are indivisible. The
maxim states that law is indispensable to every society. Maintenance of
peace and harmony of a society will happen in its entirety only if there is a
law for the society.
 Any community, regardless of size, generates its own individual system of
law, and only when such a system of law is in fact substantially just and
substantially effective is the community able to function. Until recently, the
legal systems within institutions of higher education have missed this point
because for generations the traditional power holders in the academic
community have gone largely unchallenged. As a result, systems of law
active in academic communities or subcommunities are in accordance with
the most traditional and strict ideas of fair play.
A Jus Cogens rule (synonym: peremptory norm) is described in the Vienna
Convention on the law of Treaties as follows: “…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.”
Short and simple, it’s a rule that is so widely accepted that every and any State must
comply with it. It is seen as essential to international law, leaving no room for
reservations by certain actors on the international stage. An entity can not, for
example, claim to have the right to use armed force against a state, based on the fact
that it has not signed and ratified the UN Charter. The prohibition on the use of force
is part of jus cogens, and therefore not subject to reservations or derogations. A jus
cogens rule is the highest class of rules in the hierarchy of international law.
An erga omnes obligation is an obligation that every state has toward the entire
international community as a whole. The nature of the rules creating erga
omnes rules is such that any state has the right to complain of a breach by another
state of said rule, because every state has an interest in the protection of the rules
that generate erga omnes obligations. For example, a state does not need to be
directly or indirectly involved in a case of genocide in order to be able to complain
about it.
Now it might seem difficult to observe a difference. That is because both
concepts are closely related. A jus cogens rule creates an erga omnes obligation for
states to comply with a rule. An erga omnes obligation is therefore the consequence
of a rule being characterized as jus cogens.
Treaty obligations may bind states as customary law through:
Codification: Treaty merely codified customary law; state practice and opinio juris
already existed. Purpose: Clarify and stabilize international law, facilitate proof.
Generation: Treaty led to state practice (Treaty + everyone acts = custom generated).
Must show that treaty influenced state practice and thought.) Ex: the Law of the Sea
Convention or the Vienna Convention on the Law of Treaties.
Instant custom: Comprehensive Test Ban Treaty (CB 86): On the occasion of
the Comprehensive Test Ban Treaty’s signing, President Clinton asserted
that the signatures of the declared nuclear powers, along with those of the
vast majority of countries, “will immediately create an international norm
against nuclear testing even before the treaty formally enters into force.”
Crystallization: When an emerging principle of international law is codified and
supplies evidence of opinio juris. Evidence required for “crystallization” can be found
in a treaty’s travaux preparatoires. For instance, record of state declaring the
equivalent of: “we always imagined there was legal obligation” or “do we need this?
We already thought this was customary law.” Where states dissent, evidence of
opinio juris is questionable. (Contrast to codification.) [Crystallization also refers to
process whereby a treaty provision can fill in gaps, clarify certain custom variations,
as well as supplying evidence of opinio juris.]
STATE RESPONSIBILITY
The law of State responsibility is the chapter of international law that concerns the
breach by a State of one or more of its international obligations. In international law,
responsibility is the corollary of obligation; every breach by a subject of international
law of its international obligations entails its international responsibility. The law of
State responsibility defines when an international obligation is to be held to have
been breached, as well as the consequences of that breach, including which States
are entitled to react, and the permissible means of that reaction.
Unlike national laws, wherein different rules often apply according to the source of
the obligation breached (e.g., contract law, tort law, criminal law), international law
does not concern itself with the source of the obligation that is breached; in principle
(and unless otherwise specifically provided) the same rules apply to the breach of an
obligation whether the source of the obligation is a treaty, customary international
law, a unilateral declaration, or the judgment of an international court.
In August 2001 the International Law Commission completed its Articles on the
Responsibility of States for Internationally Wrongful Acts (ARSIWA), a project on
which it had been working for more than forty years. The aim of the articles is to
codify the generally applicable rules of State responsibility.
The Elements of State Responsibility
The starting point of the articles is that “every internationally wrongful act of a State
entails the international responsibility of that State”. The act or omission of a State
will qualify as an “internationally wrongful act” if two conditions are met. First, the
act or omission must constitute a breach of an international obligation, or, as the
articles put it, must be “not in conformity with what is required” by the international
obligation. This implies that the obligation in question must be binding on the State
at the time of the conduct, which is said to constitute a breach. Second, the act or
omission must be “attributable” to the State.
The general rule is that a State is not responsible for the acts of private individuals.
The State is of course an abstract entity, unable to accomplish any physical act itself.
Just as in domestic law corporations act through their officers and agents, so in
international law the State normally acts through its organs and officials. The first,
and clearest, case of attribution is that of the organs of the State (e.g., police officers,
the army) whose acts are attributable to the State even in instances where they
contravene their instructions, or exceed their authority as a matter of national law.
No distinction is made based on the level of the particular organ in the organizational
hierarchy of the State; State responsibility can arise from the actions of a local
policeman, just as it can from the actions of the highest officials, for instance a head
of state or a foreign minister. Nor is any distinction made upon the basis of the
separation of powers; State responsibility may arise from acts or omissions of the
legislature and the judiciary, although by the nature of things it is more common that
an internationally wrongful act is the consequence of an act or acts of the executive.
Second, the rules of attribution cover situations in which individuals, not otherwise
State organs, are exercising “elements of governmental authority” at the time that
they act. Third, acts of private individuals are attributable to the State if those
individuals are acting on the instructions of the State, or under its effective direction
or control. Fourth, in exceptional circumstances in which there is an absence or
default of governmental authority, the acts of private individuals may be attributable
to the State if those individuals, in effect, step into the breach and perform necessary
governmental functions.
With regard to certain obligations, a State may incur responsibility even though
actions have been carried out by private individuals, because the essence of the
obligation was to ensure that a given result occurred. For instance, if a foreign
embassy is overrun by a mob, or harm is done to diplomatic staff by private
individuals, as occurred with the U.S. embassy in Tehran during the Iranian revolution
of 1979 to 1980, a State may incur responsibility, even if those individuals act on their
own initiative. Equally, under Article V of the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide, the obligation of a State to punish those
responsible for genocide earlier on related to genocide may be breached in instances
in which a State fails to punish any person responsible for the genocide, “whether
they are constitutionally responsible rulers, public officials, or private individuals.”
There is probably a similar rule in general international law in relation to crimes
against humanity. In both cases, the basis of responsibility here is not the attribution
to the State of the acts of the individuals; it is the failure by the State as an entity to
comply with the obligations of prevention and prosecution incumbent on it.
A somewhat anomalous instance of attribution is that covered by Article 10. As was
noted above, in the normal course of events, a State is not responsible for the acts of
private individuals; a fortiori, it is not responsible for the acts of insurrectional
movements, because, by definition, an insurrectional group acts in opposition to the
established state structures and its organization is distinct from the government of
the State to which it is opposed. However, Article 10(1) provides that “the conduct
of an insurrectional movement which becomes the new government of a State shall
be considered an act of that State under international law.” Article 10(2) provides for
a similar rule with respect to an insurrectional movement that succeeds in
establishing a new State within the territory of a pre-existing State. The effect of the
rule is to attribute retrospectively the conduct of the movement in question to the
State. In the case of a successful insurrectional movement, the acts of the movement
are attributed to the State as if the movement had been the government at the time
of its acts, even though, if the insurrection had failed, no attribution would be
possible. In the case of the establishment of a new State, the effect is even more
drastic because acts are attributed to the State retrospectively to a time when it did
not yet definitively exist.
Except in this case, there is no established machinery for attributing collective
responsibility (e.g., for war crimes, genocide, or crimes against humanity) to an
armed opposition group. In such circumstances individual responsibility is the only
possibility at the international level of ensuring a degree of responsibility for criminal
acts.
Certain circumstances may serve to preclude the wrongfulness of a breach of
international law by a State, in much the same way that defenses and excuses work
in national criminal law. In international law these are termed “circumstances
precluding wrongfulness”. For instance, the consent of the state to which the
obligation was owed will prevent the breach being wrongful, as will, under certain
restrictively defined conditions, force majeure, distress, and necessity. Finally, a State
taking countermeasures (defined as the nonperformance of an obligation in response
to a prior wrongful act of another State, in order to induce that State to comply with
its obligations) may mean that what would otherwise be a breach of an international
obligation is not in fact wrongful. However, quite apart from the strict procedural
conditions with which the taking of countermeasures is hedged, it should be noted
that certain obligations may not be the object of countermeasures. Among these are
the obligation to refrain from the threat or use of force, obligations for the protection
of fundamental human rights, obligations of a humanitarian character prohibiting
reprisals under peremptory norms of general international law (jus cogens). This last
limitation in fact applies generally to circumstances precluding wrongfulness: it is
never possible to plead that a breach of a peremptory norm was justified.
The Content of International Responsibility
Upon the commission of an internationally wrongful act, new legal obligations come
into existence for the State responsible for that act. First, that State is under an
obligation to make full reparation for the injury caused by the internationally
wrongful act. Reparation may take one of three forms: restitution, compensation, or
satisfaction (or some combination of them). Traditionally, restitution has played the
primary role, although in instances in which restitution is materially impossible, the
injured State may have to content itself with compensation or satisfaction. Second,
the responsible State is under an obligation to conclude the internationally wrongful
act if it is continuing, and in an appropriate case, may be required to make assurances
and guarantees of non-repetition.
The Articles mark a decisive step away from the traditional bilateralism of
international law and toward what has been called “community interest” in the
provisions dealing with the States that are entitled to react to the breach of an
internationally wrongful act. Traditionally, only the State that was directly injured, or
in some way “targeted,” by the breach of an international obligation could demand
reparation. In addition, although any state could take unfriendly measures that did
not constitute the breach of an international obligation owed to the State at which
they were directed (retorsion), the taking of countermeasures was commonly
understood as being limited to these “injured States.”
The first major move away from the strict bilateralism of international law was the
judgment of the International Court of Justice in the Barcelona Traction, Light and
Power Company Limited (Belgium v. Spain) case. In that case, the court stated:
[A]n 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 are 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
In the next paragraph, the court went on to state that “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.” This distinction between obligations of which only the injured State
may complain, and those in the observance of which a wider community of States
have an interest, is reflected in Articles 42 and 48, although it should be stressed that
the latter provision is undoubtedly one of the clearest examples of progressive
development to be found within the articles. It seems indisputable that all other
States have an interest in the observance by other States (and individuals) of the
prohibitions of genocide and crimes against humanity. However, the exact
implications of this interest require further working out in the light of State practice.
Conclusion
Therefore, in international law, responsibility pertains to a State which commits an
internationally wrongful act against another, giving rise to the duty to give reparation.
The wrongful act that is attributable to a State, committed by its agencies or officials
or in the exercise of its authority, constitutes a breach of international obligation that
is binding at the time the act is committed.Such a classic formulation of international
responsibility is premised on inter se relations of States; an act or omission of one
State in breach of an obligation defined by international custom or convention, which
it owes to another State. However, progress in the theory and practice of
international responsibility has gone beyond the scope of bilateral relations. The
developments towards the consolidation of the institutions making up the
International Community of States as a whole have broadened in significant scale.
The maxim lex specialis derogat legi generali is generally accepted as constituting a
general principle of law. It entails that, when two norms apply to the same subject
matter, that which is more specific should prevail and be given priority over the more
general rule. In the international legal system, the concept is frequently resorted to
by courts and tribunals as a tool of legal reasoning in order to resolve real or
perceived antinomies between norms.
The maxim lex posterior derogat priori (“a later law takes away the effect of [i.e.
repeals] a prior one”) is a rule of statutory interpretation for capital legal matters
such as treaties, supranational documents and constitutional issues in both
domestic and international legal contexts.
That lex posterior maxim is always linked with lex specialis derogat
generali(“special law takes away the effect of a general law”).
DIFFERENCE BETWEEN INTERNATIONAL LAW AND CONSTITUTIONAL LAW
The definition of international law centers on the word “inter,” which means
“between,” as opposed to “intra,” which means “within.” So, literally, “international
law” is defined as “law between nations (States),” which stem from agreements,
embodied in a treaty, or customs that is recognized by all nations. According to Article
38 of the Statute of the International Court of Justice, sources of international law, in
order of precedence, are: (a) international conventions (treaties); (b) international
custom, as evidence of a general practice accepted as law; (c) the general principles
of law recognized by civilized nations; and (d) judicial decision and the teachings of
the most highly qualified publicists of the various nations.
National law, which is often referred to as domestic law, are those laws that exist
“within” a particular nation (State). National laws are also recognized as the
expression of the State itself, since it emanates from the local authority, which could
be the law making institution, such as the United States Congress or the French
Parliament. In some States, called States with a common law tradition, laws could
also come from decisions made by judges, which is also called case law. Other States,
called States with a civil law tradition, do not recognize judge made law, but only laws
enacted by the legislature.