PUBLIC INTERNATIONAL LAW

376.Discuss the contemporary view on the rightful place of an Individual in International Law? Does he
remain a mere object of International Law, or is he now a proper subject of International Law?

Held: Then came the long and still ongoing debate on what should be the subject of international law.
The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism the
fascism of Italys Mussolini and Germanys Hitler, the militarism of Japans Hirohito and the communism
of Russias Stalin, etc. The sinking of these isms led to the elevation of the rights of the individual
against the state. Indeed, some species of human rights have already been accorded universal
recognition (See Universal Declaration of Human Rights [1948], The International Covenant on
Economic, Social and Cultural Rights [1966] and The International Covenant on Civil and Political Rights
[1966]). Today, the drive to internationalize rights of women and children is also on high gear (The
Convention on the Elimination of All Forms of Discrimination Against Women [CEDAW] otherwise known
as The Bill of Rights for
Women was adopted by the UN General Assembly in December 1979. As of November 1999, one
hundred sixty seven [167] states including the Philippines have ratified or acceded to it. See Statement
of Angela King, Special Adviser to the Secretary General of the UN on Gender Issues and Advancement
of Women, Judicial Colloquium on the Application of International Human Rights Law at the Domestic
Level, Vienna, Austria, October 27, 1999). The higher rating given to human rights on the hierarchy of
values necessarily led to the re-examination of the rightful place of the individual in international law.
Given the harshest eye is the moss-covered doctrine that international law deals only with States and
that individuals are not its subject. For its undesirable corollary is that sub-doctrine that an individuals
right in international law is a near cipher. Translated in extradition law, the view that once commanded
a consensus is that since a fugitive is a mere object and not a subject of international law, he is bereft of
rights. An extraditee, so it was held, is a mere object transported from one state to the other as an
exercise of the sovereign will of the two states involved. (Blakesley and Lagodny, Finding Harmony
Amidst Disagreement Over Extradition, Jurisdiction, The Role of Human Rights and Issues of
Extraterritoriality Under International Criminal Law, Vanderbilt Journal of Transnational Law, Vol. 24, No.
1, p. 44 [1991]) The re-examination consigned this pernicious doctrine to the museum of ideas (See
generally Kelsen, Principles of International Law, 2nd ed. [1966]; Korowicz, The Problem of the
International Personality of Individuals, 50 Am. J., Intl. Law 553 [1966]). The new thinkers of
international law then gave a significant shape to the role and rights of the individual in state-concluded
treaties and other international agreements. X x x (Concurring Opinion, Puno J., in Jeffrey Liang
[Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])




377.What is the doctrine of incorporation? How is it applied by local courts?

Held: Under the doctrine of incorporation, rules of international law form part of the law of the land
and no further legislative action is needed to make such rules applicable in the domestic sphere.

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted
with situations in which there appears to be a conflict between a rule of international law and the
provisions of the Constitution or statute of the local state. Efforts should first be exerted to harmonize
them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper
regard for the generally accepted principles of international law in observance of the Incorporation
Clause in Section 2, Article II of the Constitution. In a situation however, where the conflict is
irreconcilable and a choice has to be made between a rule of international law and municipal law,
jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that
such courts are organs of municipal law and are accordingly bound by it in all circumstances. The fact
that international law has been made part of the law of the land does not pertain to or imply the
primacy of international law over national or municipal law in the municipal sphere. The doctrine of
incorporation, as applied in most countries, decrees that rules of international law are given equal
standing with, but are not superior to, national legislative enactments. Accordingly, the principle of lex
posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In
states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both
statutes and treaties may be invalidated if they are in conflict with the Constitution. (Secretary of
Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc [Melo])

378.Is sovereignty really absolute and all-encompassing? If not, what are its restrictions and limitations?

Held: While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic
level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. By the doctrine of incorporation, the
country is bound by generally accepted principles of international law, which are considered to be
automatically part of our own laws. One of the oldest and most fundamental rules in international law
is pacta sunt servanda international agreements must be performed in good faith. A state which has
contracted valid international obligations is bound to make in its legislations such modifications as may
be necessary to ensure the fulfillment of the obligations.

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. (Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban])

379.What must a person who feels aggrieved by the acts of a foreign sovereign do to espouse his cause?

Held: Private respondent is not left without any legal remedy for the redress of its grievances. Under
both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a
foreign sovereign can ask his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims
against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See
the validity of its claim. Of course, the Foreign Office shall first make a determination of the impact of
its espousal on the relations between the Philippine government and the Holy See (Young, Remedies of
Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter
ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of
Justice:

By taking up the case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights - its right to ensure, in the
person of its subjects, respect for the rules of international law (The Mavrommatis Palestine
Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
(Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec. 1, 1994, En Banc [Quiason])


380.Discuss the Status of the Vatican and the Holy See in International Law.

Held: Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as
the Holy See, was considered a subject of International Law. With the loss of the Papal States and the
limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in
International Law became controversial.

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of
the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter
into treaties according to International Law.

The Lateran Treaty established the statehood of the Vatican City for the purpose of assuring to the Holy
See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the
field of international relations.

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested
in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two
international persons - the Holy See and Vatican City.

The Vatican City fits into none of the established categories of states, and the attribution to it of
sovereignty must be made in a sense different from that in which it is applied to other states. In a
community of national states, the Vatican City represents an entity organized not for political but for
ecclesiastical purposes and international objects. Despite its size and object, the Vatican City has an
independent government of its own, with the Pope, who is also head of the Roman Catholic Church, as
the Holy See or Head of State, in conformity with its traditions, and the demands of its mission in the
world. Indeed, the world-wide interests and activities of the Vatican City are such as to make it in a
sense an international state.

One authority wrote that the recognition of the Vatican City as a state has significant implication - that it
is possible for any entity pursuing objects essentially different from those pursued by states to be
invested with international personality.

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See
and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See
that is the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy
See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine
government since 1957. This appears to be the universal practice in international relations. (Holy See,
The v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc [Quiason])

381.What are international organizations? Discuss their nature.

Held: International organizations are institutions constituted by international agreement between two
or more States to accomplish common goals. The legal personality of these international organizations
has been recognized not only in municipal law, but in international law as well.

Permanent international commissions and administrative bodies have been created by the agreement of
a considerable number of States for a variety of international purposes, economic or social and mainly
non-political. In so far as they are autonomous and beyond the control of any one State, they have
distinct juridical personality independent of the municipal law of the State where they are situated. As
such, they are deemed to possess a species of international personality of their own. (SEAFDEC-AQD v.
NLRC, 206 SCRA 283, Feb. 14, 1992)

382.Discuss the basic immunities of international organizations and the reason for affording them such
immunities.

Held: One of the basic immunities of an international organization is immunity from local jurisdiction,
i.e., that it is immune from legal writs and processes issued by the tribunals of the country where it is
found. The obvious reason for this is that the subjection of such an organization to the authority of the
local courts would afford a convenient medium through which the host government may interfere in
their operations or even influence or control its policies and decisions; besides, such subjection to local
jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf
of its member-states. (SEAFDEC-AQD v. NLRC, 206 SCRA 283, Feb. 4, 1992)

383.Discuss the two conflicting concepts of sovereign immunity from suit.

Held: There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its consent, be
made a respondent in the courts of another sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but
not with regard to private acts or acts jure gestionis.

Some states passed legislation to serve as guidelines for the executive or judicial determination when an
act may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act
of 1976, which defines a commercial activity as either a regular course of commercial conduct or a
particular commercial transaction or act. Furthermore, the law declared that the commercial
character of the activity shall be determined by reference to the nature of the course of conduct or
particular transaction or act, rather than by reference to its purpose. The Canadian Parliament enacted
in 1982 an Act to Provide For State Immunity in Canadian Courts. The Act defines a commercial
activity as any particular transaction, act or conduct or any regular course of conduct that by reason of
its nature, is of a commercial character.

The restrictive theory, which is intended to be a solution to the host of problems involving the issue of
sovereign immunity, has created problems of its own. Legal treatises and the decisions in countries
which follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign
state with a private party is an act jure gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely commercial
activities remotely connected with the discharge of governmental functions. This is particularly true
with respect to the Communist states which took control of nationalized business activities and
international trading. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

384.Cite some transactions by a foreign state with private parties that were considered by the Supreme
Court as acts jure imperii and acts jure gestionis.

Held: This Court has considered the following transactions by a foreign state with private parties as acts
jure imperii: (1) the lease by a foreign government of apartment buildings for use of its military officers
(Syquia v. Lopez, 84 Phil. 312 [1949]); (2) the conduct of public bidding for the repair of a wharf at a
United States Naval Station (United States of America v. Ruiz, supra.); and (3) the change of employment
status of base employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign state with private
parties as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three
restaurants, a cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in
Baguio City, to cater to American servicemen and the general public (United States of America v.
Rodrigo, 182 SCRA 644 [1990]; and (2) the bidding for the operation of barber shops in Clark Air Base in
Angeles City (United States of America v. Guinto, 182 SCRA 644 [1990]). The operation of the
restaurants and other facilities open to the general public is undoubtedly for profit as a commercial and
not a governmental activity. By entering into the employment contract with the cook in the discharge of
its proprietary function, the United States government impliedly divested itself of it sovereign immunity
from suit. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

385.What should be the guidelines to determine what activities and transactions shall be considered
commercial and as constituting acts jure gestionis by a foreign state?

Held: In the absence of legislation defining what activities and transactions shall be considered
commercial and as constituting acts jure gestionis, we have to come out with our own guidelines,
tentative they may be.

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the
ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the
foreign state is engaged in the activity in the regular course of business. If the foreign state is not
engaged regularly in a business or trade, the particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii,
especially when it is not undertaken for gain or profit.

As held in United States of America v. Guinto (supra.):

There is no question that the United States of America, like any other state, will be deemed to have
impliedly waived its non-suability if it has entered into a contract in its proprietary or private capacity. It
is only when the contract involves its sovereign or governmental capacity that no such waiver may be
implied.
(Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

386.May the Holy See be sued for selling the land it acquired by donation from the Archdiocese of
Manila to be made site of its mission or the Apostolic Nunciature in the Philippines but which purpose
cannot be accomplished as the land was occupied by squatters who refused to vacate the area?

Held: In the case at bench, if petitioner (Holy See) has bought and sold lands in the ordinary course of a
real estate business, surely the said transaction can be categorized as an act jure gestionis. However,
petitioner has denied that the acquisition and subsequent disposal of Lot 5-A were made for profit but
claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the
Philippines. X x x

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was
made not for commercial purpose, but for the use of petitioner to construct thereon the official place of
residence of the Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a
receiving state, necessary for the creation and maintenance of its diplomatic mission, is recognized in
the 1961 Vienna Convention on Diplomatic Relations. This treaty was concurred in by the Philippine
Senate and entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and
administrative jurisdiction of the receiving state over any real action relating to private immovable
property situated in the territory of the receiving state which the envoy holds on behalf of the sending
state for the purposes of the mission. If this immunity is provided for a diplomatic envoy, with all the
more reason should immunity be recognized as regards the sovereign itself, which in this case is the
Holy See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot 5-A for profit or gain. It merely wanted to dispose
off the same because the squatters living thereon made it almost impossible for petitioner to use it for
the purpose of the donation. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc
[Quiason])

387.How is sovereign or diplomatic immunity pleaded in a foreign court?

Held: In Public International Law, when a state or international agency wishes to plead sovereign or
diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to
convey to the court that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of suggestion, where the foreign state or
the international organization sued in an American court requests the Secretary of State to make a
determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant
is immune from suit, he, in turn, asks the Attorney General to submit to the court a suggestion that
the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign
Office issues a certification to that effect instead of submitting a suggestion.

In the Philippines, the practice is for the foreign government or the international organization to first
secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic
Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter
directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer
could not be sued because it enjoyed diplomatic immunity. In World Health Organization v. Aquino, 48
SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer v.
Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor
General to make, in behalf of the commander of the United States Naval Base at Olongapo City,
Zambales, a suggestion to respondent Judge. The Solicitor General embodied the suggestion in a
Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with
this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department
to file its memorandum in support of petitioners claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels. In cases where the foreign states bypass the Foreign Office,
the courts can inquire into the facts and make their own determination as to the nature of the acts and
transactions involved. (Holy See, The v. Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

388.Is the determination of the executive branch of the government that a state or instrumentality is
entitled to sovereign or diplomatic immunity subject to judicial review, or is it a political question and
therefore, conclusive upon the courts?

Held: The issue of petitioners (The Holy See) non-suability can be determined by the trial court without
going to trial in light of the pleadings x x x. Besides, the privilege of sovereign immunity in this case was
sufficiently established by the Memorandum and Certification of the Department of Foreign Affairs. As
the department tasked with the conduct of the Philippines foreign relations, the Department of Foreign
Affairs has formally intervened in this case and officially certified that the Embassy of the Holy See is a
duly accredited diplomatic mission to the Republic of the Philippines exempt from local jurisdiction and
entitled to all the rights, privileges and immunities of a diplomatic mission or embassy in this country.
The determination of the executive arm of government that a state or instrumentality is entitled to
sovereign or diplomatic immunity is a political question that is conclusive upon the courts. Where the
plea of immunity is recognized and affirmed by the executive branch, it is the duty of the courts to
accept this claim so as not to embarrass the executive arm of the government in conducting the
countrys foreign relations. As in International Catholic Migration Commission and in World Health
Organization, we abide by the certification of the Department of Foreign Affairs. (Holy See, The v.
Rosario, Jr., 238 SCRA 524, Dec. 1, 1994, En Banc [Quiason])

389.Discuss the Status of the Vatican and the Holy See in International Law.

Held: Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as
the Holy See, was considered a subject of International Law. With the loss of the Papal States and the
limitation of the territory under the Holy See to an area of 108.7 acres, the position of the Holy See in
International Law became controversial (Salonga and Yap, Public International Law 36-37 [1992]).

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive
dominion and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of
the Holy See to receive foreign diplomats, to send its own diplomats to foreign countries, and to enter
into treaties according to International Law (Garcia, Questions and Problems in International Law, Public
and Private 81 [1948]).

The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy
See absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the
field of international relations" (O'Connell, I International Law 311 [1965]).

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested
in the Holy See or in the Vatican City. Some writers even suggested that the treaty created two
international persons - the Holy See and Vatican City (Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the attribution to it of
sovereignty must be made in a sense different from that in which it is applied to other states (Fenwick,
International Law 124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national states,
the Vatican City represents an entity organized not for political but for ecclesiastical purposes and
international objects. Despite its size and object, the Vatican City has an independent government of its
own, with the Pope, who is also head of the Roman Catholic Church, as the Holy See or Head of State, in
conformity with its traditions, and the demands of its mission in the world. Indeed, the world-wide
interests and activities of the Vatican City are such as to make it in a sense an international state
(Fenwick, supra, 125; Kelsen, Principles of International Law 160 [1956]).

One authority wrote that the recognition of the Vatican City as a state has significant implication - that it
is possible for any entity pursuing objects essentially different from those pursued by states to be
invested with international personality (Kunz, The Status of the Holy See in International Law, 46 The
American Journal of International Law 308 [1952]).

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See
and not in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See
that is the international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy
See, through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine
government since 1957. This appears to be the universal practice in international relations. (Holy See,
The v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc [Quiason])


390.What is extradition? To whom does it apply?

Held: It is the process by which persons charged with or convicted of crime against the law of a State
and found in a foreign State are returned by the latter to the former for trial or punishment. It applies
to those who are merely charged with an offense but have not been brought to trial; to those who have
been tried and convicted and have subsequently escaped from custody; and those who have been
convicted in absentia. It does not apply to persons merely suspected of having committed an offense
but against whom no charge has been laid or to a person whose presence is desired as a witness or for
obtaining or enforcing a civil judgment. (Weston, Falk, D' Amato, International Law and Order, 2nd ed.,
p. 630 [1990], cited in Dissenting Opinion, Puno, J., in Secretary of Justice v. Hon. Ralph C. Lantion, G.R.
No. 139465, Jan. 18, 2000, En Banc)

391.Discuss the basis for allowing extradition.

Held: Extradition was first practiced by the Egyptians, Chinese, Chaldeans and Assyro-Babylonians but
their basis for allowing extradition was unclear. Sometimes, it was granted due to pacts; at other times,
due to plain good will. The classical commentators on international law thus focused their early views
on the nature of the duty to surrender an extraditee --- whether the duty is legal or moral in character.
Grotius and Vattel led the school of thought that international law imposed a legal duty called civitas
maxima to extradite criminals. In sharp contrast, Puffendorf and Billot led the school of thought that the
so-called duty was but an "imperfect obligation which could become enforceable only by a contract or
agreement between states.

Modern nations tilted towards the view of Puffendorf and Billot that under international law there is no
duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US Supreme Court
in US v. Rauscher (119 US 407, 411, 7 S Ct. 234, 236, 30 L. ed. 425 [1886]), held: x x x it is only in
modern times that the nations of the earth have imposed upon themselves the obligation of delivering
up these fugitives from justice to the states where their crimes were committed, for trial and
punishment. This has been done generally by treaties x x x Prior to these treaties, and apart from them
there was no well-defined obligation on one country to deliver up such fugitives to another; and though
such delivery was often made it was upon the principle of comity x x x. (Dissenting Opinion, Puno, J., in
Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Jan. 18, 2000, En Banc)

392.What is the nature of an extradition proceeding? Is it akin to a criminal proceeding?

Held: [A]n extradition proceeding is sui generis. It is not a criminal proceeding which will call into
operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of
extradition does not involve the determination of the guilt or innocence of an accused. His guilt or
innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule,
constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be
invoked by an extraditee especially by one whose extradition papers are still undergoing evaluation. As
held by the US Supreme Court in United States v. Galanis:

An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that
accompany a criminal trial in this country do not shield an accused from extradition pursuant to a valid
treaty. (Wiehl, Extradition Law at the Crossroads: The Trend Toward Extending Greater Constitutional
Procedural Protections To Fugitives Fighting Extradition from the United States, 19 Michigan Journal of
International Law 729, 741 [1998], citing United States v. Galanis, 429 F. Supp. 1215 [D. Conn. 1977])

There are other differences between an extradition proceeding and a criminal proceeding. An
extradition proceeding is summary in natural while criminal proceedings involve a full-blown trial. In
contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow
admission of evidence under less stringent standards. In terms of the quantum of evidence to be
satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be
ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal
case where judgment becomes executory upon being rendered final, in an extradition proceeding, our
courts may adjudge an individual extraditable but the President has the final discretion to extradite him.
The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion
in balancing the equities of the case and the demands of the nation's foreign relations before making
the ultimate decision to extradite.

As an extradition proceeding is not criminal in character and the evaluation stage in an extradition
proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not
necessarily apply to the former. This we hold for the procedural due process required by a given set of
circumstances must begin with a determination of the precise nature of the government function
involved as well as the private interest that has been affected by governmental action. The concept of
due process is flexible for not all situations calling for procedural safeguards call for the same kind of
procedure. (Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc
[Puno])

393.Will the retroactive application of an extradition treaty violate the constitutional prohibition against
"ex post facto" laws?

Held: The prohibition against ex post facto law applies only to criminal legislation which affects the
substantial rights of the accused. This being so, there is no merit in the contention that the ruling
sustaining an extradition treatys retroactive application violates the constitutional prohibition against
ex post facto laws. The treaty is neither a piece of criminal legislation nor a criminal procedural statute.
(Wright v. CA, 235 SCRA 341, Aug. 15, 1994 [Kapunan])

394.Discuss the rules in the interpretation of extradition treaties.

Held: [A]ll treaties, including the RP-US Extradition Treaty, should be interpreted in light of their intent.
Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a signatory
provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in light of its object and purpose. X x x. It cannot
be gainsaid that today, countries like the Philippines forge extradition treaties to arrest the dramatic rise
of international and transnational crimes like terrorism and drug trafficking. Extradition treaties provide
the assurance that the punishment of these crimes will not be frustrated by the frontiers of territorial
sovereignty. Implicit in the treaties should be the unbending commitment that the perpetrators of
these crimes will not be coddled by any signatory state.

It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not
prevent the escape of extraditees from the long arm of the law and expedite their trial. X x x

[A]n equally compelling factor to consider is the understanding of the parties themselves to the RP-US
Extradition Treaty as well as the general interpretation of the issue in question by other countries with
similar treaties with the Philippines. The rule is recognized that while courts have the power to interpret
treaties, the meaning given them by the departments of government particularly charged with their
negotiation and enforcement is accorded great weight. The reason for the rule is laid down in Santos III
v. Northwest Orient Airlines, et al. (210 SCRA 256, 261 [1992]), where we stressed that a treaty is a joint
executive-legislative act which enjoys the presumption that it was first carefully studied and
determined to be constitutional before it was adopted and given the force of law in the country.
(Secretary of Justice v. Hon. Ralph C. Lantion, G.R. No. 139465, Oct. 17, 2000, En Banc [Puno])

395.Is respondent Mark Jimenez entitled to bail during the pendency of the Extradition Proceeding?

Held: We agree with petitioner. As suggested by the use of the word conviction, the constitutional
provision on bail x x x, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person
has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition
proceedings, because extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail flows from the presumption of innocence in favor of every
accused who should not be subjected to the loss of freedom as thereafter he would be entitled to
acquittal, unless his guilt be proved beyond reasonable doubt. (De la Camara v. Enage, 41 SCRA 1, 6,
September 17, 1971, per Fernando, Jr. [later CJ]) It follows that the constitutional provision on bail will
not apply to a case like extradition, where the presumption of innocence is not an issue.

The provision in the Constitution stating that the right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended does not detract from the rule that the
constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension
of the privilege of the writ of habeas corpus finds application only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion. (Sec. 18, Article VII, Constitution)
Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in
criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is
available even in extradition proceedings that are not criminal in nature.

That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an
argument to grant him one in the present case. To stress, extradition proceedings are separate and
distinct from the trial for the offenses for which he is charged. He should apply for bail before the courts
trying the criminal cases against him, not before the extradition court. (Government of the United States
of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

396.What is the exception to the No Bail Rule in Extradition Proceedings?

Held: The rule x x x is that bail is not a matter of right in extradition cases. However, the judiciary has
the constitutional duty to curb grave abuse of discretion and tyranny, as well as the power to
promulgate rules to protect and enforce constitutional rights. Furthermore, we believe that the right to
due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to
due process extends to the life, liberty or property of every person. It is dynamic and resilient,
adaptable to every situation calling for its application. (I.A. Cruz, Constitutional Law, 1998 ed., p. 98)

Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential
extraditee has been arrested or placed under the custody of the law, bail may be applied for and
granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the
applicant will not be a flight risk or a danger to the community; and (2) that there exist special,
humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the
highest court in the requesting state when it grants provisional liberty in extradition cases therein.

Since this exception has no express or specific statutory basis, and since it is derived essentially from
general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered
requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is
basically an executive, not a judicial, responsibility arising from the presidential power to conduct
foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states,
which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this
power should be characterized by caution, so that the vital international and bilateral interests of our
country will not be unreasonably impeded or compromised. In short, while this Court is ever protective
of the sporting idea of fair play, it also recognizes the limits of its own prerogatives and the need to
fulfill international obligations. (Government of the United States of America v. Hon. Guillermo
Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])

397.Are there special circumstances compelling enough for the Court to grant Mark Jimenezs request
for provisional release on bail?

Held: Along this line, Jimenez contends that there are special circumstances that are compelling enough
for the Court to grant his request for provisional release on bail. We have carefully examined these
circumstances and shall now discuss them.

1. Alleged Disenfranchisement

While his extradition was pending, Respondent Jimenez was elected as a member of the House of
Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of
600,000 residents. We are not persuaded. In People v. Jalosjos (324 SCRA 689, February 3, 2000, per
Ynares-Santiago, J.), the Court has already debunked the disenfranchisement argument x x x.

It must be noted that even before private respondent ran for and won a congressional seat in Manila, it
was already of public knowledge that the United States was requesting his extradition. Hence, his
constituents were or should have been prepared for the consequences of the extradition case against
their representative, including his detention pending the final resolution of the case. Premises
considered and in line with Jalosjos, we are constrained to rule against his claim that his election to
public office is by itself a compelling reason to grant him bail.

2. Anticipated Delay

Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be
unfair to confine him during the pendency of the case. Again we are not convinced. We must
emphasize that extradition cases are summary in nature. They are resorted to merely to determine
whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine his
guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional rights
available to the accused in a criminal action.

We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings.
This is quite another matter that is not at issue here. Thus, any further discussion of this point would be
merely anticipatory and academic.

However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of
bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of
bail would be tantamount to giving him the power to grant bail to himself. It would also encourage him
to stretch out and unreasonably delay the extradition proceedings even more. This we cannot allow.

3. Not a Flight Risk?

Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of
the extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled
during the preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean
that he will not flee as the process moves forward to its conclusion, as he hears the footsteps of the
requesting government inching closer and closer. That he has not yet fled from the Philippines cannot
be taken to mean that he will stand his ground and still be within reach of our government if and when
it matters; that is, upon the resolution of the Petition for Extradition.

In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the
applicant has been taken into custody and prior to judgment, even after bail has been previously denied.
In the present case, the extradition court may continue hearing evidence on the application for bail,
which may be granted in accordance with the guidelines in this Decision. (Government of the United
States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc [Panganiban])



398.Discuss the Five Postulates of Extradition.

Held:

1. Extradition Is a Major Instrument for the Suppression of Crime.

First, extradition treaties are entered into for the purpose of suppressing crime by facilitating the arrest
and custodial transfer (Bassiouni, International Extradition, 1987 ed., p. 68) of a fugitive from one state
to the other.

With the advent of easier and faster means of international travel, the flight of affluent criminals from
one country to another for the purpose of committing crime and evading prosecution has become more
frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes
that transcend international boundaries.

Today, a majority of nations in the world community have come to look upon extradition as the major
effective instrument of international co-operation in the suppression of crime. (Bassiouni, supra, p. 21)
It is the only regular system that has been devised to return fugitives to the jurisdiction of a court
competent to try them in accordance with municipal and international law (Id., p. 67).

X x x

Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of
international crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate
with other states in order to improve our chances of suppressing crime in our country.

2. The Requesting State Will Accord Due Process to the Accused.

Second, an extradition treaty presupposes that both parties thereto have examined, and that both
accept and trust, each others legal system and judicial process (Coquia, On Implementation of the RP-
US Extradition Treaty, The Lawyers Review, August 31, 2000, p. 4). More pointedly, our duly authorized
representatives signature on an extradition treaty signifies our confidence in the capacity and
willingness of the other state to protect the basic rights of the person sought to be extradited (See
Bassiouni, p. 546; citing 221 US 508, 512 [1910]). That signature signifies our full faith that the accused
will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal
proceedings that will take place therein; otherwise, the treaty would not have been signed, or would
have been directly attacked for its unconstitutionality.

3. The Proceedings Are Sui Generis.

Third, as pointed out in Secretary of Justice v. Lantion (Supra), extradition proceedings are not criminal
in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition
which is sui generis in a class by itself they are not.

X x x

Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the
innocence of the person sought to be extradited (Secretary of Justice v. Lantion, supra.). Such
determination during the extradition proceedings will only result in needless duplication and delay.
Extradition is merely a measure of international judicial assistance through which a person charged with
or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of
the function of the assisting authorities to enter into questions that are the prerogative of that
jurisdiction (Shearer, Extradition in International Law, 1971 ed., p. 157). The ultimate purpose of
extradition proceedings in court is only to determine whether the extradition request complies with the
Extradition Treaty, and whether the person sought is extraditable (Id., p. 545).

4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our
legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will
serve the national interest.

Fulfilling our obligations under the Extradition Treaty promotes comity (In line with the Philippine policy
of cooperation and amity with all nations set forth in Article II, Section 2, Constitution). On the other
hand, failure to fulfill our obligations thereunder paints at bad image of our country before the world
community. Such failure would discourage other states from entering into treaties with us, particularly
an extradition treaty that hinges on reciprocity.

Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the
Treaty (Secretary of Justice v. Lantion, supra.). This principle requires that we deliver the accused to the
requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In
other words, [t]he demanding government, when it has done all that the treaty and the law require it
to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other
government is under obligation to make the surrender. (Wright v. Henkel, 190 U.S. 40, 62, March 23,
1903) Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be
found proper.

5. There Is an Underlying Risk of Flight.

Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds
reinforcement in the experience of the executive branch: nothing short of confinement can ensure that
the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the
requesting state.

The present extradition case further validates the premise that persons sought to be extradited have a
propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing
to submit to trial in the requesting country (Persily, International Extradition and the Right to Bail, 34
Stan. J. Intl L. 407 [Summer 1988]). Prior acts of herein respondent (1) leaving the requesting state
right before the conclusion of his indictment proceedings there; and (2) remaining in the requested
state despite learning that the requesting state is seeking his return and that the crimes he is charged
with are bailable eloquently speak of his aversion to the processes in the requesting state, as well as
his predisposition to avoid them at all cost. These circumstances point to an ever-present, underlying
high risk of flight. He has demonstrated that he has the capacity and the will to flee. Having fled once,
what is there to stop him, given sufficient opportunity, from fleeing a second time? (Government of the
United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc
[Panganiban])

399.Discuss the Ten Points to consider in Extradition Proceedings?

Held: 1. The ultimate purpose of extradition proceedings is to determine whether the request
expressed in the petition, supported by its annexes and the evidence that may be adduced during the
hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is
extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused
or the fugitive who has illegally escaped back to its territory, so that the criminal process may
proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the
reliability or soundness of the legal and judicial system of its treaty partner; as well as in the ability and
the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.

3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or
innocence is determined. Consequently, an extradition case is not one in which the constitutional rights
of the accused are necessarily available. It is more akin, if at all, to a courts request to police authorities
for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once
escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the
person would escape again if given the opportunity.

4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge
shall make a prima facie finding whether the petition is sufficient in form and substance, whether it
complies with the Extradition Treaty and Law, and whether the person sought is extraditable. The
magistrate has discretion to require the petitioner to submit further documentation, or to personally
examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately
issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to
appear at scheduled hearings on the petition.

5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a
history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to
the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds
used by the highest court in the requesting state for the grant of bail therein may be considered, under
the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it
is subject to judicial discretion in the context of the peculiar facts of each case.

6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due
process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient
due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is
the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary
nature of extradition.

7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of
democracy and the conscience of society. But it is also well aware of the limitations of its authority and
of the need for respect for the prerogatives of the other co-equal and co-independent organs of
government.

8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the
presidential power to conduct foreign relations and to implement treaties. Thus, the Executive
Department of government has broad discretion in its duty and power of implementation.

9. On the other hand, courts merely perform oversight functions and exercise review authority to
prevent or excise grave abuse and tyranny. They should not allow contortions, delays and over-due
process every little step of the way, lest these summary extradition proceedings become not only
inutile but also sources of international embarrassment due to our inability to comply in good faith with
a treaty partners simple request to return a fugitive. Worse, our country should not be converted into a
dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate,
checkmate and defeat the quest for bilateral justice and international cooperation.

10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine
compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid
the legalistic contortions, delays and technicalities that may negate that purpose. (Government of the
United States of America v. Hon. Guillermo Purganan, G.R. No. 148571, Sept. 24, 2002, En Banc
[Panganiban])

400.What is a Treaty? Discuss.

Held: A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international
instrument concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments, and whatever its particular
designation. There are many other terms used for a treaty or international agreement, some of which
are: act, protocol, agreement, compromis d' arbitrage, concordat, convention, declaration, exchange of
notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed
out that the names or titles of international agreements included under the general term treaty have
little or no significance. Certain terms are useful, but they furnish little more than mere description

Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding the use of
terms in the present Convention are without prejudice to the use of those terms, or to the meanings
which may be given to them in the internal law of the State. (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

401.Discuss the binding effect of treaties and executive agreements in international law.

Held: [I]n international law, there is no difference between treaties and executive agreements in their
binding effect upon states concerned, as long as the functionaries have remained within their powers.
International law continues to make no distinction between treaties and executive agreements: they
are equally binding obligations upon nations. (BAYAN [Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

402.Does the Philippines recognize the binding effect of executive agreements even without the
concurrence of the Senate or Congress?

Held: In our jurisdiction, we have recognized the binding effect of executive agreements even without
the concurrence of the Senate or Congress. In Commissioner of Customs v. Eastern Sea Trading (3 SCRA
351, 356-357 [1961]), we had occasion to pronounce:

x x x 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 into 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. "
(BAYAN [Bagong Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct.
10, 2000, En Banc [Buena])

403.What is a "protocol de cloture"? Will it require concurrence by the Senate?

Held: A final act, sometimes called protocol de cloture, is an instrument which records the winding up
of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of
treaties, conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries
attending the conference. It is not the treaty itself. It is rather a summary of the proceedings of a
protracted conference which may have taken place over several years. It will not require the
concurrence of the Senate. The documents contained therein are deemed adopted without need for
ratification. (Tanada v. Angara, 272 SCRA 18, May 2, 1997 [Panganiban])

404.What is the most-favored-nation clause? What is its purpose?

Answer: 1. The most-favored-nation clause may be defined, in general, as a pledge by a contracting
party to a treaty to grant to the other party treatment not less favorable than that which has been or
may be granted to the most favored among other countries. The clause has been commonly included
in treaties of commercial nature.

There are generally two types of most-favored-nation clause, namely, conditional and unconditional.
According to the clause in its unconditional form, any advantage of whatever kind which has been or
may in future be granted by either of the contracting parties to a third State shall simultaneously and
unconditionally be extended to the other under the same or equivalent conditions as those under which
it has been granted to the third State. (Salonga & Yap, Public International Law, 5th Edition, 1992, pp.
141-142)

2. The purpose of a most favored nation clause is to grant to the contracting party treatment not less
favorable than that which has been or may be granted to the "most favored" among other countries.
The most favored nation clause is intended to establish the principle of equality of international
treatment by providing that the citizens or subjects of the contracting nations may enjoy the privileges
accorded by either party to those of the most favored nation (Commissioner of Internal Revenue v. S.C.
Johnson and Son, Inc., 309 SCRA 87, 107-108, June 25, 1999, 3rd Div. [Gonzaga-Reyes])

405.What is the essence of the principle behind the "most-favored-nation" clause as applied to tax
treaties?

Held: The essence of the principle is to allow the taxpayer in one state to avail of more liberal provisions
granted in another tax treaty to which the country of residence of such taxpayer is also a party provided
that the subject matter of taxation x x x is the same as that in the tax treaty under which the taxpayer is
liable.

In Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc., 309 SCRA 87, June 25, 1999, the SC
did not grant the claim filed by S.C. Johnson and Son, Inc., a non-resident foreign corporation based in
the USA, with the BIR for refund of overpaid withholding tax on royalties pursuant to the most-favored-
nation clause of the RP-US Tax Treaty in relation to the RP-West Germany Tax Treaty. It held:

Given the purpose underlying tax treaties and the rationale for the most favored nation clause, the
concessional tax rate of 10 percent provided for in the RP-Germany Tax Treaty should apply only if the
taxes imposed upon royalties in the RP-US Tax Treaty and in the RP-Germany Tax Treaty are paid under
similar circumstances. This would mean that private respondent (S.C. Johnson and Son, Inc.) must prove
that the RP-US Tax Treaty grants similar tax reliefs to residents of the United States in respect of the
taxes imposable upon royalties earned from sources within the Philippines as those allowed to their
German counterparts under the RP-Germany Tax Treaty.

The RP-US and the RP-West Germany Tax Treaties do not contain similar provisions on tax crediting.
Article 24 of the RP-Germany Tax Treaty x x x expressly allows crediting against German income and
corporation tax of 20% of the gross amount of royalties paid under the law of the Philippines. On the
other hand, Article 23 of the RP-US Tax Treaty, which is the counterpart provision with respect to relief
for double taxation, does not provide for similar crediting of 20% of the gross amount of royalties paid.
X x x

X x x The entitlement of the 10% rate by U.S. firms despite the absence of matching credit (20% for
royalties) would derogate from the design behind the most favored nation clause to grant equality of
international treatment since the tax burden laid upon the income of the investor is not the same in the
two countries. The similarity in the circumstances of payment of taxes is a condition for the enjoyment
of most favored nation treatment precisely to underscore the need for equality of treatment.

406.What is ratification? Discuss its function in the treaty-making process.

Held: Ratification is generally held to be an executive act, undertaken by the head of state or of the
government, as the case may be, through which the formal acceptance of the treaty is proclaimed. A
State may provide in its domestic legislation the process of ratification of a treaty. The consent of the
State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such
ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be
required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the
intention of the State to sign the treaty subject to ratification appears from the full powers of its
representative, or was expressed during the negotiation. (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, En Banc [Buena])

407.Explain the pacta sunt servanda rule.

Held: One of the oldest and most fundamental rules in international law is pacta sunt servanda
international agreements must be performed in good faith. A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on the parties x x x. A state which has contracted valid
international obligations is bound to make in its legislations such modifications as may be necessary to
ensure the fulfillment of the obligations undertaken. (Tanada v. Angara, 272 SCRA 18, May 2, 1997
[Panganiban])

408.Explain the "rebus sic stantibus" rule (i.e., things remaining as they are). Does it operate
automatically to render a treaty inoperative?

Held: According to Jessup, the doctrine constitutes an attempt to formulate a legal principle which
would justify non-performance of a treaty obligation if the conditions with relation to which the parties
contracted have changed so materially and so unexpectedly as to create a situation in which the
exaction of performance would be unreasonable. The key element of this doctrine is the vital change in
the condition of the contracting parties that they could not have foreseen at the time the treaty was
concluded.

The doctrine of rebus sic stantibus does not operate automatically to render the treaty inoperative.
There is a necessity for a formal act of rejection, usually made by the head of state, with a statement of
the reasons why compliance with the treaty is no longer required. (Santos III v. Northwest Orient
Airlines, 210 SCRA 256, June 23, 1992)

409.What is the doctrine of effective nationality (genuine link doctrine)?

Held: This principle is expressed in Article 5 of the Hague Convention of 1930 on the Conflict of
Nationality Laws as follows:

Art. 5. Within a third State a person having more than one nationality shall be treated as if he had only
one. Without prejudice to the application of its law in matters of personal status and of any convention
in force, a third State shall, of the nationalities which any such person possesses, recognize exclusively in
its territory either the nationality of the country in which he is habitually and principally resident or the
nationality of the country with which in the circumstances he appears to be in fact most closely
connected. (Frivaldo v. COMELEC, 174 SCRA 245, June 23, 1989)

410.What are the conditions before foreign military bases, troops, or facilities may be allowed in the
Philippines?

Ans.: After the expiration in 1991 of the Agreement between the Republic of the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not
be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the
Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held
for that purpose, and recognized as a treaty by the other contracting State. (Sec. 25, Art. XVIII, 1987
Constitution)

411.Which provision of the Constitution applies with regard to the exercise by the Senate of its
constitutional power to concur with the Visiting Forces Agreement (VFA)?

Held: One focal point of inquiry in this controversy is the determination of which provision of the
Constitution applies, with regard to the exercise by the Senate of its constitutional power to concur with
the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its
subject the presence of foreign military troops in the Philippines. Respondents, on the contrary,
maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but
an agreement which involves merely the temporary visits of United States personnel engaged in joint
military exercises.

The 1987 Philippine contains two provisions requiring the concurrence of the Senate on treaties or
international agreements. Section 21, Article VII x x x reads:

"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."

Section 25, Article XVIII, provides:

"After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be
allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress
so requires, ratified by a majority of the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State."

Section 21, Article VII deals with treaties or international agreements in general, in which case, the
concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject
treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays
down the general rule on treaties or international agreements and applies to any form of treaty with a
wide variety of subject matter, such as, but not limited to, extradition or tax treaties or those economic
in nature. All treaties or international agreements entered into by the Philippines, regardless of subject
matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be
valid and effective.

In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the
presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the
concurrence of the Senate is only one of the requisites to render compliance with the constitutional
requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further
requires that "foreign military bases, troops, or facilities" may be allowed in the Philippines only by
virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national
referendum held for that purpose if so required by Congress, and recognized as such by the other
contracting State.

It is our considered view that both constitutional provisions, far from contradicting each other, actually
share some common ground. These constitutional provisions both embody phrases in the negative and
thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause
"No treaty x x x," and Section 25 contains the phrase "shall not be allowed." Additionally, in both
instances, the concurrence of the Senate is indispensable to render the treaty or international
agreement valid and effective.

To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and
that the Senate extended its concurrence under the same provision, is immaterial. For in either case,
whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that
the concurrence of the Senate is mandatory to comply with the strict constitutional requirements.

On the whole, the VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines. It provides for the guidelines to govern such visits of military
personnel, and further defines the rights of the United States and the Philippine government in the
matter of criminal jurisdiction, movement of vessels and aircraft, importation and exportation of
equipment, materials and supplies.

Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense,
however, the provisions of Section 21, Article VII will find applicability with regard to the issue and for
the sole purpose of determining the number of votes required to obtain the valid concurrence of the
Senate x x x.

It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a
general one. Lex specialis derogat generali. Thus, where there is in the same statute a particular
enactment and also a general one which, in its most comprehensive sense, would include what is
embraced in the former, the particular enactment must be operative, and the general enactment must
be taken to affect only such cases within its general language which are not within the provision of the
particular enactment (Manila Railroad Co. v. Collector of Customs, 52 Phil. 950). (BAYAN [Bagong
Alyansang Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases,
Oct. 10, 2000, 342 SCRA 449, 481-492, En Banc [Buena])

412.Should the contention that since the VFA merely involved the temporary visits of United States
personnel engaged in joint military exercises and not a basing agreement, therefore, Sec. 21, Art. VII of
the 1987 Constitution, and not Sec. 25, Art. XVIII, should apply to the VFA, be upheld?

Held: It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements
for the reason that there is no permanent placing of structure for the establishment of a military base.
On this score, the Constitution makes no distinction between "transient" and "permanent". Certainly,
we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or
placed permanently in the Philippines.

It is a rudiment in legal hermeneutics that when no distinction is made by law, the Court should not
distinguish - Ubi lex non distinguit nec nos distinguire debemos.

In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since
no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a
perusal of said constitutional provision revels that the proscription covers "foreign military bases,
troops, or facilities." Stated differently, this prohibition is not limited to the entry of troops and facilities
without any foreign bases being established. The clause does not refer to foreign military bases, troops,
or facilities" collectively but treats them as separate and independent subjects. The use of comma and
disjunctive word "or" clearly signifies disassociation and independence of one thing from the others
included in the enumeration (Castillo-Co v. Barbers, 290 SCRA 717, 723 [1998]), such that, the provision
contemplates three different situations - a military treaty the subject of which could be either (a) foreign
bases (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the
coverage of Section 25, Article XVIII.

To this end, the intention of the framers of the Charter, as manifested during the deliberations of the
1986 Constitutional Commission, is consistent with this interpretation x x x.

Moreover, military bases established within the territory of another state is no longer viable because of
the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided
missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without
returning to their home country. These military warships are actually used as substitutes for a land-
home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are
mobile as compared to a land-based military headquarters. (BAYAN [Bagong Alyansang Makabayan] v.
Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10, 2000, 342 SCRA
449, 481-492, En Banc [Buena])

413.Were the requirements of Sec. 25, Art. XVIII of the 1987 Constitution complied with when the
Senate gave its concurrence to the VFA?

Held: Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless
the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be
duly concurred in by the Senate and, when so required by Congress, ratified by a majority of the votes
cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting
state.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence
handed by the Senate through Resolution No. 18 is in accordance with the provisions of the
Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate
mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification by a
majority of the votes cast in a national referendum being unnecessary since Congress has not required
it.

As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international
agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of
the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be "duly
concurred in by the Senate."

Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is
clearly required so that the concurrence contemplated by law may be validly obtained and deemed
present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty - the
VFA, in the instant case - be "duly concurred in by the Senate," it is very true however that said provision
must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in
more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a
two-thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated
in isolation to Section 21, Article VII.

As noted, the "concurrence requirement" under Section 25, Article XVIII must be construed in relation to
the provisions of Section 21, Article VII. In a more particular language, the concurrence of the Senate
contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the
Senate favorably vote to concur with the treaty - the VFA in the instant case.

x x x

Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall
now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the
United States of America.

x x x

This Court is of the firm view that the phrase "recognized as a treaty" means that the other contracting
party accepts or acknowledges the agreement as a treaty (Ballantine's Legal Dictionary, 1995). To
require the other contracting state, The United States of America in this case, to submit the VFA to the
United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the
phrase.

Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary
meaning except where technical terms are employed, in which case the significance thus attached to
them prevails. Its language should be understood in the sense they have in common use (J.M. Tuason &
Co., Inc. v. Land Tenure Association, 31 SCRA 413 [1970])

Moreover, it is inconsequential whether the United States treats the VFA only as an executive
agreement because, under international law, an executive agreement is as binding as a treaty (Altman
Co. v. United States, 224 US 263 [1942], cited in Coquia and Defensor-Santiago, International Law, 1998
Ed. P. 497). To be sure, as long as the VFA possesses the elements of an agreement under international
law, the said agreement is to be taken equally as a treaty.

x x x

The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has
stated that the United States government has fully committed to living up to the terms of the VFA. For
as long as the United States of America accepts or acknowledges the VFA as a treaty, and binds itself
further to comply with its obligations under the treaty, there is indeed marked compliance with the
mandate of the Constitution.

Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the
Senate should be taken as a clear and unequivocal expression of our nation's consent to be bound by
said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied
thereunder.

x x x

With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes
between the Philippines and the United States of America, it now becomes obligatory and incumbent on
our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no
less than Section 2, Article II of the Constitution, declares that the Philippines 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. (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570 and Companion Cases, Oct. 10,
2000, 342 SCRA 449, 481-492, En Banc [Buena])

414.Are the Balikatan exercises covered by the Visiting Forces Agreement?

Held: The holding of Balikatan 02-1 must be studied in the framework of the treaty antecedents to
which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity).
The MDT has been described as the core of the defense relationship between the Philippines and its
traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of
our armed forces through joint training with its American counterparts; the Balikatan is the largest
such training exercise directly supporting the MDTs objectives. It is this treaty to which the VFA adverts
and the obligations thereunder which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a
vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces
Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this Court
upheld the validity of the VFA (BAYAN, et. Al. v. Zamora, et. al., 342 SCRA 449 [2000]). The VFA provides
the regulatory mechanism by which United States military and civilian personnel [may visit]
temporarily in the Philippines in connection with activities approved by the Philippine Government. It
contains provisions relative to entry and departure of American personnel, driving and vehicle
registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft,
as well as the duration of the agreement and its termination. It is the VFA which gives continued
relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of
optimal cooperation between American and Philippine military forces in the event of an attack by a
common foe.

The first question that should be addressed is whether Balikatan 02-1 is covered by the Visiting Forces
Agreement. To resolve this, it is necessary to refer to the VFA itself. Not much help can be had
therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA
permits United States personnel to engage, on an impermanent basis, in activities, the exact meaning
of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings
subject only to the approval of the Philippine government. The sole encumbrance placed on its
definition is couched in the negative, in that United States personnel must abstain from any activity
inconsistent with the spirit of this agreement, and in particular, from any political activity. All other
activities, in other words, are fair game.

We are not completely unaided, however. The Vienna Convention on the Law of Treaties, which
contains provisos governing interpretations of international agreements, state x x x.

It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the
text, which is presumed to verbalize the parties intentions. The Convention likewise dictates what may
be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as
other elements may be taken into account alongside the aforesaid context. X x x

The Terms of Reference rightly fall within the context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word
activities arose from accident. In our view, it was deliberately made that way to give both parties a
certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for
purposes other than military. As conceived, the joint exercises may include training on new techniques
of patrol and surveillance to protect the nations marine resources, sea search-and-destroy operations
to assist vessels in distress, disaster relief operations, civic action projects such as the building of school
houses, medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to
assume that Balikatan 02-1, a mutual anti-terrorism advising, assisting and training exercise, falls
under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-
related activities as opposed to combat itself such as the one subject of the instant petition, are
indeed authorized. (Arthur D. Lim and Paulino R. Ersando v. Honorable Executive Secretary, G.R. No.
151445, April 11, 2002, En Banc [De Leon])


415.With the ratification of the Visiting Forces Agreement (VFA), has it now become obligatory and
incumbent on our part to be bound by its terms even if it is asserted that said agreement contravenes
the Constitution?

Held: With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of
notes between the Philippines and the United States of America, it now becomes obligatory and
incumbent on our part, under the principles of international law, to be bound by the terms of the
agreement. Thus, no less than Section 2, Article II of the Constitution, declares that the Philippines
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.

As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for
the conduct of its international relations. While the international obligation devolves upon the state
and not upon any particular branch, institution, or individual member of its government, the Philippines
is nonetheless responsible for violations committed by any branch or subdivision of its government or
any official thereof. As an integral part of the community of nations, we are responsible to assure that
our government, Constitution and laws will carry out our international obligation (Louis Henkin, Richard
C. Pugh, Oscar Schachter, Hans Smit, International Law, Cases and Materials, 2nd Ed., American
Casebook Series, p. 136). Hence, we cannot readily plead the Constitution as a convenient excuse for
non-compliance with our obligations, duties and responsibilities under international law.

Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International
Law Commission in 1949 provides: Every State has the duty to carry out in good faith its obligations
arising from treaties and other sources of international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty. (Gerhard von Glahn, supra, p. 487)

Equally important is Article 26 of the Convention which provides that Every treaty in force is binding
upon the parties to it and must be performed by them in good faith. This is known as the principle of
pacta sunt servanda which preserves the sanctity of treaties and have been one of the most
fundamental principles of positive international law, supported by the jurisprudence of international
tribunals (Harris, p. 634 cited in Coquia, International Law, supra, p. 512). (BAYAN [Bagong Alyansang
Makabayan] v. Executive Secretary Ronaldo Zamora, G.R. No. 138570, Oct. 10, 2000, 342 SCRA 449, 492-
493, En Banc [Buena])


416.What must a person who feels aggrieved by the acts of a foreign sovereign do to espouse his cause?

Held: Private respondent is not left without any legal remedy for the redress of its grievances. Under
both Public International Law and Transnational Law, a person who feels aggrieved by the acts of a
foreign sovereign can ask his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims
against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See
the validity of its claim. Of course, the Foreign Office shall first make a determination of the impact of
its espousal on the relations between the Philippine government and the Holy See (Young, Remedies of
Private Claimants Against Foreign States, Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government decides to espouse the claim, the latter
ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of
Justice:

By taking up the case of one of its subjects and by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights - its right to ensure, in the
person of its subjects, respect for the rules of international law (The Mavrommatis Palestine
Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).
(Holy See, The v. Rosario, Jr., 238 SCRA 524, 538-539, Dec. 1, 1994, En Banc [Quiason])

417.What are the conditions before the rights of belligerency may be accorded the rebels?

Ans.: As a matter of legal theory, the rebels have to fulfill certain conditions before the rights of
belligerency are accorded them, namely:

1) An organized civil government that has control and direction over the armed struggle launched by the
rebels;
2) Occupation of a substantial portion of the national territory;
3) Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the
outcome;
4) Willingness on the part of the rebels to observe the rules and customs of war.

418.Discuss the legal consequences that follow recognition of belligerency.

Ans.:

1) Before recognition as such, it is the legitimate government that is responsible for the acts of the
rebels affecting foreign nationals and their properties. Once recognition is given, the legitimate
government may no longer be held responsible for their acts; responsibility is shifted to the rebel
government;
2) The legitimate government, once it recognizes the rebels as belligerents, is bound to observe the laws
and customs of war in conducting the hostilities;
3) From the point of view of third States, the effect of recognition of belligerency is to put them under
obligation to observe strict neutrality and abide by the consequences arising from that position;
4) On the side of the rebels, recognition of belligerency puts them under responsibility to third States
and to the legitimate government for all their acts which do not conform to the laws and customs of
war. (Salonga & Yap, Public International Law, 5th Ed. [1992], p. 33)

419.Should Courts blindly adhere and take on its face the communication from the Department of
Foreign Affairs (DFA) that a person is covered by any immunity?

Held: Courts cannot blindly adhere and take on its face the communication from the DFA that petitioner
is covered by any immunity. The DFAs determination that a certain person is covered by immunity is
only preliminary which has no binding effect in courts. In receiving ex parte the DFAs advice and in
motu proprio dismissing the two criminal cases without notice to the prosecution, the latters right to
due process was violated. It should be noted that due process is a right of the accused as much as it is of
the prosecution. The needed inquiry in what capacity petitioner was acting at the time of the alleged
utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time
(See United States v. Guinto, 182 SCRA 644 [1990]). At any rate, it has been ruled that the mere
invocation of the immunity clause does not ipso facto result in the dropping of the charges (Chavez v.
Sandiganbayan, 193 SCRA 282 [1991]). (Liang v. People, 323 SCRA 692, Jan. 28, 2000, 1st Div. [Ynares-
Santiago])

420.Discuss the basis of the argument that a determination by the DFA that a person is entitled to
diplomatic immunity is a political question binding on the courts.

Held: Petitioners argument that a determination by the Department of Foreign Affairs that he is
entitled to diplomatic immunity is a political question binding on the courts, is anchored on the ruling
enunciated in the case of WHO, et al. v. Aquino, et al. (48 SCRA 242 [1972]), viz:

It is a recognized principle of international law and under our system of separation of powers that
diplomatic immunity is essentially a political question and courts should refuse to look beyond a
determination by the executive branch of the government, and where the plea of diplomatic immunity
is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the
duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law
officer of the government, the Solicitor General in this case, or other officer acting under his direction.
Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure
and detention of property, as to embarrass the executive arm of the government in conducting foreign
relations, it is accepted doctrine that in such cases the judicial department of the government follows
the action of the political branch and will not embarrass the latter by assuming an antagonistic
jurisdiction.

This ruling was reiterated in the subsequent cases of International Catholic Migration Commission v.
Calleja (190 SCRA 130 [1990]); The Holy See v. Rosario, Jr. (238 SCRA 524 [1994]); Lasco v. United
Nations (241 SCRA 681 [1995]); and DFA v. NLRC (262 SCRA 38 [1996]).

The case of WHO v. Aquino involved the search and seizure of personal effects of petitioner Leonce
Verstuyft, an official of the WHO. Verstuyft was certified to be entitled to diplomatic immunity pursuant
to the Host Agreement executed between the Philippines and the WHO.

ICMC v. Calleja concerned a petition for certification election filed against ICMC and IRRI. As
international organizations, ICMC and IRRI were declared to possess diplomatic immunity. It was held
that they are not subject to local jurisdictions. It was ruled that the exercise of jurisdiction by the
Department of Labor over the case would defeat the very purpose of immunity, which is to shield the
affairs of international organizations from political pressure or control by the host country and to ensure
the unhampered performance of their functions.

Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy See, as
represented by the Papal Nuncio. The Court upheld the petitioners defense of sovereign immunity. It
ruled that where a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of
the receiving state over any real action relating to private immovable property situated in the territory
of the receiving state, which the envoy holds on behalf of the sending state for the purposes of the
mission, with all the more reason should immunity be recognized as regards the sovereign itself, which
in that case is the Holy See.

In Lasco v. United Nations, the United Nations Revolving Fund for Natural Resources Exploration was
sued before the NLRC for illegal dismissal. The Court again upheld the doctrine of diplomatic immunity
invoked by the Fund.

Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian Development Bank.
Pursuant to its Charter and the Headquarters Agreement, the diplomatic immunity of the Asian
Development Bank was recognized by the Court.

It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international
organizations. Petitioner asserts that he is entitled to the same diplomatic immunity and he cannot be
prosecuted for acts allegedly done in the exercise of his official functions.

The term international organizations

is generally used to describe an organization set up by agreement between two or more states. Under
contemporary international law, such organizations are endowed with some degree of international
legal personality such that they are capable of exercising specific rights, duties and powers. They are
organized mainly as a means for conducting general international business in which the member states
have an interest. (ICMC v. Calleja, supra note 2)

International public officials have been defined as:

x x x persons who, on the basis of an international treaty constituting a particular international
community, are appointed by this international community, or by an organ of it, and are under its
control to exercise, in a continuous way, functions in the interest of this particular international
community, and who are subject to a particular personal status. (John Kerry King, The Privileges and
Immunities of the Personnel of International Organizations xiii [1949], citing: Suzanne Basdevant, Les
Functionnaires Internationaux [Paris: 1931], Chapter I)

Specialized agencies are international organizations having functions in particular fields, such as posts,
telecommunications, railways, canals, rivers, sea transport, civil aviation, meteorology, atomic energy,
finance, trade, education and culture, health and refugees (ICMC v. Calleja, et al., citing Articles 57 and
63 of the United Nations Charter). (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People,
G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

421.What are the differences between Diplomatic and International Immunities? Discuss.

Held: There are three major differences between diplomatic and international immunities. Firstly, one
of the recognized limitations of diplomatic immunity is that members of the diplomatic staff of a mission
may be appointed from among the nationals of the receiving State only with the express consent of that
State; apart from inviolability and immunity from jurisdiction in respect of official acts performed in the
exercise of their functions, nationals enjoy only such privileges and immunities as may be granted by the
receiving State. International immunities may be specially important in relation to the State of which
the official is a national. Secondly, the immunity of a diplomatic agent from the jurisdiction of the
receiving State does not exempt him from the jurisdiction of the sending State; in the case of
international immunities there is no sending State and an equivalent for the jurisdiction of the Sending
State therefore has to be found either in waiver of immunity or in some international disciplinary or
judicial procedure. Thirdly, the effective sanctions which secure respect for diplomatic immunity are the
principle of reciprocity and the danger of retaliation by the aggrieved State; international immunities
enjoy no similar protection (C. Wilfred Jenks, Contemporary Development in International Immunities
xxxvii [1961]) (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar.
26, 2001, 1st Div. [Motion for Reconsideration])

422.Discuss the immunity of International Officials.

Held: The generally accepted principles which are now regarded as the foundation of international
immunities are contained in the ILO Memorandum, which reduced them in three basic propositions,
namely: (1) that international institutions should have a status which protects them against control or
interference by any one government in the performance of functions for the effective discharge of
which they are responsible to democratically constituted international bodies in which all the nations
concerned are represented; (2) that no country should derive any financial advantage by levying fiscal
charges on common international funds; and (3) that the international organization should, as a
collectivity of States Members, be accorded the facilities for the conduct of its official business
customarily extended to each other by its individual member States. The thinking underlying these
propositions is essentially institutional in character. It is not concerned with the status, dignity or
privileges of individuals, but with the elements of functional independence necessary to free
international institutions from national control and to enable them to discharge their responsibilities
impartially on behalf of all their members (Id. at 17). (Concurring Opinion, Puno J., in Jeffrey Liang
[Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

423.What are the three methods of granting privileges and immunities to the personnel of international
organizations? Under what category does the Asian Development Bank and its Personnel fall?

Held: Positive international law has devised three methods of granting privileges and immunities to the
personnel of international organizations. The first is by simple conventional stipulation, as was the case
in the Hague Conventions of 1899 and 1907. The second is by internal legislation whereby the
government of a state, upon whose territory the international organization is to carry out its functions,
recognizes the international character of the organization and grants, by unilateral measures, certain
privileges and immunities to better assure the successful functioning of the organization and its
personnel. In this situation, treaty obligation for the state in question to grant concessions is lacking.
Such was the case with the Central Commission of the Rhine at Strasbourg and the International
Institute of Agriculture at Rome. The third is a combination of the first two. In this third method, one
finds a conventional obligation to recognize a certain status of an international organization and its
personnel, but the status is described in broad and general terms. The specific definition and
application of those general terms are determined by an accord between the organization itself and the
state wherein it is located. This is the case with the League of Nations, the Permanent Court of Justice,
and the United Nations (J.K. King, supra note 12, at 81).

The Asian Development Bank and its Personnel fall under this third category.

There is a connection between diplomatic privileges and immunities and those extended to
international officials. The connection consists in the granting, by contractual provisions, of the
relatively well-established body of diplomatic privileges and immunities to international functionaries.
This connection is purely historical. Both types of officials find the basis of their special status in the
necessity of retaining functional independence and freedom from interference by the state of residence.
However, the legal relationship between an ambassador and the state to which he is accredited is
entirely different from the relationship between the international official and those states upon whose
territory he might carry out its functions (See Id. at 255).

The privileges and immunities of diplomats and those of international officials rest upon different legal
foundations. Whereas those immunities awarded to diplomatic agents are a right of the sending state
based on customary international law, those granted to international officials are based on treaty or
conventional law. Customary international law places no obligation on a state to recognize a special
status of an international official or to grant him jurisdictional immunities. Such an obligation can only
result from specific treaty provisions (Id. at 25-26).

The special status of the diplomatic envoy is regulated by the principle of reciprocity by which a state is
free to treat the envoy of another state as its envoys are treated by that state. The juridical basis of the
diplomats position is firmly established in customary international law. The diplomatic envoy is
appointed by the sending State but it has to make certain that the agreement of the receiving State has
been given for the person it proposes to accredit as head of the mission to that State (Article 4, Vienna
Convention on Diplomatic Relations).

The staff personnel of an international organization the international officials assume a different
position as regards their special status. They are appointed or elected to their position by the
organization itself, or by a competent organ of it; they are responsible to the organization and their
official acts are imputed to it. The juridical basis of their special position is found in conventional law
(J.K. King, supra note 12, at xiii), since there is no established basis of usage or custom in the case of the
international official. Moreover, the relationship between an international organization and a member-
state does not admit of the principle of reciprocity (Id. at 27), for it is contradictory to the basic principle
of equality of states. An international organization carries out functions in the interest of every member
state equally. The international official does not carry out his functions in the interest of any state, but
in serving the organization he serves, indirectly, each state equally. He cannot be, legally, the object of
the operation of the principle of reciprocity between states under such circumstances. It is contrary to
the principle of equality of states for one state member of an international organization to assert a
capacity to extract special privileges for its nationals from other member states on the basis of a status
awarded by it to an international organization. It is upon this principle of sovereign equality that
international organizations are built.

It follows from this same legal circumstance that a state called upon to admit an official of an
international organization does not have a capacity to declare him persona non grata.

The functions of the diplomat and those of the international official are quite different. Those of the
diplomat are functions in the national interest. The task of the ambassador is to represent his state, and
its specific interest, at the capital of another state. The functions of the international official are carried
out in the international interest. He does not represent a state or the interest of any specific state. He
does not usually represent the organization in the true sense of that term. His functions normally are
administrative, although they may be judicial or executive, but they are rarely political or functions of
representation, such as those of the diplomat.

There is a difference of degree as well as of kind. The interruption of the activities of a diplomatic agent
is likely to produce serious harm to the purposes for which his immunities were granted. But the
interruption of the activities of the international official does not, usually, cause serious dislocation of
the functions of an international secretariat (id. at 254-257).

On the other hand, they are similar in the sense that acts performed in an official capacity by either a
diplomatic envoy or an international official are not attributable to him as an individual but are imputed
to the entity he represents, the state in the case of the diplomat, and the organization in the case of the
international official (Id. at 103). ). (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People,
G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

424.What is the reason behind the current tendency of reducing privileges and immunities of personnel
of international organizations to a minimum?

Held: Looking back over 150 years of privileges and immunities granted to the personnel of
international organizations, it is clear that they were accorded a wide scope of protection in the exercise
of their functions The Rhine Treaty of 1804 between the German Empire and France which provided
all the rights of neutrality to persons employed in regulating navigation in the international interest;
The Treaty of Berlin of 1878 which granted the European Commission of the Danube complete
independence of territorial authorities in the exercise of its functions; The Convention of the League
which granted diplomatic immunities and privileges. Today, the age of the United Nations finds the
scope of protection narrowed. The current tendency is to reduce privileges and immunities of personnel
of international organizations to a minimum. The tendency cannot be considered as a lowering of the
standard but rather as a recognition that the problem on the privileges and immunities of international
officials is new. The solution to the problem presented by the extension of diplomatic prerogatives to
international functionaries lies in the general reduction of the special position of both types of agents in
that the special status of each agent is granted in the interest of function. The wide grant of diplomatic
prerogatives was curtailed because of practical necessity and because the proper functioning of the
organization did not require such extensive immunity for its officials. While the current direction of the
law seems to be to narrow the prerogatives of the personnel of international organizations, the reverse
is true with respect to the prerogatives of the organizations themselves, considered as legal entities.
Historically, states have been more generous in granting privileges and immunities to organizations
than they have to the personnel of these organizations (J.K. King, supra note 12, at 253-268).

Thus, Section 2 of the General Convention on the Privileges and Immunities of the United Nations states
that the UN shall enjoy immunity from every form of legal process except insofar as in any particular
case it has expressly waived its immunity. Section 4 of the Convention on the Privileges and Immunities
of the Specialized Agencies likewise provides that the specialized agencies shall enjoy immunity from
every form of legal process subject to the same exception. Finally, Article 50[1] of the ADB Charter and
Section 5 of the Headquarters Agreement similarly provide that the bank shall enjoy immunity from
every form of legal process, except in cases arising out of or in connection with the exercise of its
powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of
securities.

The phrase immunity from every form of legal process as used in the UN General Convention has been
interpreted to mean absolute immunity from a states jurisdiction to adjudicate or enforce its law by
legal process, and it is said that states have not sought to restrict that immunity of the United Nations by
interpretation or amendment. Similar provisions are contained in the Special Agencies Convention as
well as in the ADB Charter and Headquarters Agreement. These organizations were accorded privileges
and immunities in their charters by language similar to that applicable to the United Nations. It is clear
therefore that these organizations were intended to have similar privileges and immunities (1
Restatement of the Law Third 498-501). From this, it can be easily deduced that international
organizations enjoy absolute immunity similar to the diplomatic prerogatives granted to diplomatic
envoys.

Even in the United States this seems to be the prevailing rule x x x.

On the other hand, international officials are governed by a different rule. Section 18[a] of the General
Convention on Privileges and Immunities of the United Nations states that officials of the United Nations
shall be immune from legal process in respect of words spoken or written and all acts performed by
them in their official capacity. The Convention on Specialized Agencies carries exactly the same
provision. The Charter of the ADB provides under Article 55[i] that officers and employees of the bank
shall be immune from legal process with respect to acts performed by them in their official capacity
except when the Bank waives immunity. Section 45 [a] of the ADB Headquarters Agreement accords the
same immunity to the officers and staff of the bank. There can be no dispute that international officials
are entitled to immunity only with respect to acts performed in their official capacity, unlike
international organizations which enjoy absolute immunity.

Clearly, the most important immunity to an international official, in the discharge of his international
functions, is immunity from local jurisdiction. There is no argument in doctrine or practice with the
principle that an international official is independent of the jurisdiction of the local authorities for his
official acts. Those acts are not his, but are imputed to the organization, and without waiver the local
courts cannot hold him liable for them. In strict law, it would seem that even the organization itself
could have no right to waive an officials immunity for his official acts. This permits local authorities to
assume jurisdiction over an individual for an act which is not, in the wider sense of the term, his act al
all. It is the organization itself, as a juristic person, which should waive its own immunity and appear in
court, not the individual, except insofar as he appears in the name of the organization. Provisions for
immunity from jurisdiction for official acts appear, aside from the aforementioned treatises, in the
constitution of most modern international organizations. The acceptance of the principle is sufficiently
widespread to be regarded as declaratory of international law (J.K. King, supra note 12, at 258-259)
(Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st
Div. [Motion for Reconsideration])

425.What is the status of the international official with respect to his private acts?

Held: Section 18 [a] of the General Convention has been interpreted to mean that officials of the
specified categories are denied immunity from local jurisdiction for acts of their private life and
empowers local courts to assume jurisdiction in such cases without the necessity of waiver (Id. at 186).
It has earlier been mentioned that historically, international officials were granted diplomatic privileges
and immunities and were thus considered immune for both private and official acts. In practice, this
wide grant of diplomatic prerogatives was curtailed because of practical necessity and because the
proper functioning of the organization did not require such exclusive immunity for its officials. Thus, the
current status of the law does not maintain that states grant jurisdictional immunity to international
officials for acts of their private lives (But see id. at 259. It is important to note that the submission of
international officials to local jurisdiction for private acts is not completely accepted in doctrine and
theory. Jenks, in particular, has argued for complete jurisdictional immunity, as has Hammarskjold.).
This much is explicit from the charter and Headquarters Agreement of the ADB which contain
substantially similar provisions to that of the General convention. (Concurring Opinion, Puno J., in Jeffrey
Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

426.Who is competent to determine whether a given act of international officials and representatives is
private or official?

Held: In connection with this question, the current tendency to narrow the scope of privileges ad
immunities of international officials and representatives is most apparent. Prior to the regime of the
United Nations, the determination of this question rested with the organization and its decision was
final. By the new formula, the state itself tends to assume this competence. If the organization is
dissatisfied with the decision, under the provisions of the General Convention of the United Nations, or
the Special Convention for Specialized Agencies, the Swiss Arrangement, and other current dominant
instruments, it may appeal to an international tribunal by procedures outlined in these instruments.
Thus, the state assumes this competence in the first instance. It means that, if a local court assumes
jurisdiction over an act without the necessity of waiver from the organization, the determination of the
nature of the act is made at the national level (Id. at 260-261).

It appears that the inclination is to place the competence to determine the nature of an act as private or
official in the courts of the state concerned. That the practical notion seems to be to leave to the local
courts determination of whether or not a given act is official or private does not necessarily mean that
such determination is final. If the United Nations questions the decision of the Court, it may invoke
proceedings for settlement of disputes between the organization and the member states as provided in
Section 30 of the General Convention. Thus, the decision as to whether a given act is official or private is
made by the national courts in the first instance, but it may be subjected to review in the international
level if questioned by the United Nations (Id. at 189).

x x x

Under the Third Restatement of the Law, it is suggested that since an international official does not
enjoy personal inviolability from arrest or detention and has immunity only with respect to official acts,
he is subject to judicial or administrative process and must claim his immunity in the proceedings by
showing that the act in question was an official act. Whether an act was performed in the individuals
official capacity is a question for the court in which a proceeding is brought, but if the international
organization disputes the courts finding, the dispute between that organization and the state of the
forum is to be resolved by negotiation, by an agreed mode of settlement or by advisory opinion of the
International Court of Justice (Restatement of the Law Third 512).

Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction over
private acts without a waiver of immunity, the determination of the official or private character of a
particular act may pass from international to national, Jenks proposes three ways of avoiding difficulty in
the matter. The first would be for a municipal court before which a question of the official or private
character of a particular act arose to accept as conclusive in the matter any claim by the international
organization that the act was official in character, such a claim being regarded as equivalent to a
governmental claim that a particular act is an act of State. Such a claim would be in effect a claim by the
organization that the proceedings against the official were a violation of the jurisdictional immunity of
the organization itself which is unqualified and therefore not subject to delimitation in the discretion of
the municipal court. The second would be for a court to accept as conclusive in the matter a statement
by the executive government of the country where the matter arises certifying the official character of
the act. The third would be to have recourse to the procedure of international arbitration. Jenks opines
that it is possible that none of these three solutions would be applicable in all cases; the first might be
readily acceptable only in the clearest cases and the second is available only if the executive government
of the country where the matter arises concurs in the view of the international organization concerning
the official character of the act. However, he surmises that taken in combination, these various
possibilities may afford the elements of a solution to the problem (Jenks, supra note 14, at 117-118).
(Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865, Mar. 26, 2001, 1st
Div. [Motion for Reconsideration])

427.Discuss the extent of the international officials immunity for official acts.

Held: One final point. The international officials immunity for official acts may be likened to a consular
officials immunity from arrest, detention, and criminal or civil process which is not absolute but applies
only to acts or omissions in the performance of his official functions, in the absence of special
agreement. Since a consular officer is not immune from all legal processes, he must respond to any
process and plead and prove immunity on the ground that the act or omission underlying the process
was in the performance of his official functions. The issue has not been authoritatively determined, but
apparently the burden is on the consular official to prove his status as well as his exemption in the
circumstances. In the United States, the US Department of State generally has left it to the courts to
determine whether a particular act was within a consular officers official duties (1 Restatement of the
Law Third 475-477). (Concurring Opinion, Puno J., in Jeffrey Liang [Huefeng] v. People, G.R. No. 125865,
Mar. 26, 2001, 1st Div. [Motion for Reconsideration])

428.State the occasions when the use of force may be allowed under the UN Charter.

Ans.: There are only two occasions when the use of force is allowed under the UN Charter. The first is
when it is authorized in pursuance of the enforcement action that may be decreed by the Security
Council under Art. 42. The second is when it is employed in the exercise of the inherent right of self-
defense under conditions prescribed in Art. 51. (Justice Isagani A. Cruz, in an article entitled A New
World Order written in his column Separate Opinion published in the March 30, 2003 issue of the
Philippines Daily Inquirer)

429.Is the United States justified in invading Iraq invoking its right to defend itself against an expected
attack by Iraq with the use of its biological and chemical weapons of mass destruction?

Ans.: The United States is invoking its right to defend itself against an expected attack by Iraq with the
use of its biological and chemical weapons of mass destruction. There is no evidence of such a threat,
but Bush is probably invoking the modern view that a state does not have to wait until the potential
enemy fires first. The cowboy from Texas says that outdrawing the foe who is about to shoot is an act of
self-defense.

Art. 51 says, however, that there must first be an armed attack before a state can exercise its inherent
right of self-defense, and only until the Security Council, to which the aggression should be reported,
shall have taken the necessary measures to maintain international peace and security. It was the United
States that made the armed attack first, thus becoming the aggressor, not Iraq. Iraq is now not only
exercising its inherent right of self-defense as recognized by the UN Charter. (Justice Isagani A. Cruz, in
an article entitled A New World Order written in his column Separate Opinion published in the
March 30, 2003 issue of the Philippines Daily Inquirer)

430.Will the subsequent discovery of weapons of mass destruction in Iraq after its invasion by the US
justify the attack initiated by the latter?

Ans.: Even if Iraqs hidden arsenal is discovered or actually used and the United States is justified in
its suspicions, that circumstance will not validate the procedure taken against Iraq. It is like searching a
person without warrant and curing the irregularity with the discovery of prohibited drugs in his
possession. The process cannot be reversed. The warrant must first be issued before the search and
seizure can be made.

The American invasion was made without permission from the Security Council as required by the UN
Charter. Any subsequent discovery of the prohibited biological and chemical weapons will not
retroactively legalize that invasion, which was, legally speaking, null and void ab initio. (Justice Isagani A.
Cruz, in an article entitled A New World Order written in his column Separate Opinion published in
the March 30, 2003 issue of the Philippines Daily Inquirer)