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PUBLIC'INTERNATIONAL'LAW'DIGESTS''

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''''''''''''' '''''''DEAN'SEDFREY'CANDELARIA'

PUBLIC
INTERNATIONAL
LAW
SHARING IS A GOOD
THING!
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2A'||'2015'

SALVADOR'ENRIQUEZ,'in'his'capacity'as'Secretary'of'Budget'and'
Management;' CARIDAD' VALDEHUESA,' in' her' capacity' as'
National' Treasurer;' RIZALINO' NAVARRO,' in' his' capacity' as'
Secretary' of' Trade' and' Industry;' ROBERTO' SEBASTIAN,' in' his'
capacity' as' Secretary' of' Agriculture;' ROBERTO' DE' OCAMPO,' in'
his' capacity' as' Secretary' of' Finance;' ROBERTO' ROMULO,' in' his'
capacity' as' Secretary' of' Foreign' Affairs;' and' TEOFISTO' T.'
GUINGONA,'in'his'capacity'as'Executive'Secretary,'respondents.'

1. Taada'v.'Angara'
TOPIC:'Reconciling'Treaty'obligations'with'Constitutional'Policies'
Treaties/Laws''

'

World' Trade' Organization' (WTO)' ~' ' General' Agreements' on' Trade' and'
Tariffs'(GTAA)'
o HISTORYto'hasten'recovery'after'WWII,'three'institutions'were'
sought'to'be'established:'the'IMF,'World'Bank,'and'International'
Trade'Organization.'The'ITO'unlike'the'IMF'and'WB'never'took'off'
for'a'variety'of'reasons'including'nonPratification'by'the'US.'What'
remained' was' the' General' Agreements' on' Trade' and' Tariffs'
(GATT)' which' is' a' collection' of' treaties' governing' access' to' the'
economies' of' treaty' adherents.' However,' the' problem' was' the'
absence' of' AN' INSTITUTIONALIZED' BODY' administering' the'
agreements' or' a' system' of' dispute.' THUS,' after' 50' years' of'
negotiation,'the'WTO'became'this'administering'body.''

Ponente:'PANGANIBAN,'J.:'
PETITION'IN'BRIEF:'

G.R.'No.:'118295''May'2,'1997'
Petitioner:''

WIGBERTO' E.' TAADA' and' ANNA' DOMINIQUE' COSETENG,' as'


members'of'the'Philippine'Senate'and'as'taxpayers;'GREGORIO'
ANDOLANA' and' JOKER' ARROYO' as' members' of' the' House' of'
Representatives' and' as' taxpayers;' NICANOR' P.' PERLAS' and'
HORACIO' R.' MORALES,' both' as' taxpayers;' CIVIL' LIBERTIES'
UNION,' NATIONAL' ECONOMIC' PROTECTIONISM' ASSOCIATION,'
CENTER' FOR' ALTERNATIVE' DEVELOPMENT' INITIATIVES,' LIKAST
KAYANG' KAUNLARAN' FOUNDATION,' INC.,' PHILIPPINE' RURAL'
RECONSTRUCTION' MOVEMENT,' DEMOKRATIKONG' KILUSAN' NG'
MAGBUBUKID' NG' PILIPINAS,' INC.,' and' PHILIPPINE' PEASANT'
INSTITUTE,' in' representation' of' various' taxpayers' and' as' nonT
governmental'organizations,'petitioners,''

Respondents:''

EDGARDO' ANGARA,' ALBERTO' ROMULO,' LETICIA' RAMOST


SHAHANI,' HEHERSON' ALVAREZ,' AGAPITO' AQUINO,' RODOLFO'
BIAZON,' NEPTALI' GONZALES,' ERNESTO' HERRERA,' JOSE' LINA,'
GLORIA.' MACAPAGALTARROYO,' ORLANDO' MERCADO,' BLAS'
OPLE,' JOHN' OSMEA,' SANTANINA' RASUL,' RAMON' REVILLA,'
RAUL' ROCO,' FRANCISCO' TATAD' and' FREDDIE' WEBB,' in' their'
respective' capacities' as' members' of' the' Philippine' Senate' who'
concurred' in' the' ratification' by' the' President' of' the' Philippines'
of' the' Agreement' Establishing' the' World' Trade' Organization;'

'
FACTS:'

Does' the' Philippine' Constitution' prohibit' Philippine' participation' in'


worldwide'trade'liberalization'and'economic'globalization?''
Does' it' proscribe' Philippine' integration' into' a' global' economy' that' is'
liberalized,'deregulated'and'privatized?'
These' are' the' main' questions' raised' in' this' petition' for'certiorari,'
prohibition'and'mandamus,.praying'for'(1)'nullification'of'concurrence'by'
the' Senate' of' the' ratification' by' President' Ramos' of' the' agreement'
establishing' the' WTO' (world' trade' org)' and' (2)' prohibition' of' its'
implementation.'
It' is' true,' as' alleged' by' petitioners,' that' broad' constitutional' principles'
require'the'State'to'develop'an'independent'national'economy'effectively'
controlled' by' Filipinos;' and' to' protect' and/or' prefer' Filipino' labor,'
products,'domestic'materials'and'locally'produced'goods.'But'it'is'equally'
true'that'such'principles''while'serving'as'judicial'and'legislative'guides'
'are'not'in'themselves'sources'of'causes'of'action.'Moreover,'there'are'
other' equally' fundamental' constitutional' principles' relied' upon' by' the'
Senate' which' mandate' the' pursuit' of' a' "trade' policy' that' serves' the'
general' welfare' and' utilizes' all' forms' and' arrangements' of' exchange' on'
the' basis' of' equality' and' reciprocity"' and' the' promotion' of' industries'
"which' are' competitive' in' both' domestic' and' foreign' markets,"' thereby'
justifying' its' acceptance' of' said' treaty.' So' too,' the' alleged' impairment' of'
sovereignty'in'the'exercise'of'legislative'and'judicial'powers'is'balanced'by'
the' adoption' of' the' generally' accepted' principles' of' international' law' as'
part' of' the' law' of' the' land' and' the' adherence' of' the' Constitution' to' the'
policy'of'cooperation'and'amity'with'all'nations.'

'

April'15,'1994:'Rizalino'Navarro'(Sec'of'DTI)'signed'in'Marrakesh,'Morroco,'
the' Final' Act' ' Embodying' results' of' the' Uruguay' round' of' multilateral'
Negotiations'
o He' signed' not' only' the' agreement' proper' (WTO' +' Annexes)' but'
also' the' (1)' Ministerial' decisions' and' declarations' and' (2)'
Understanding'and'Commitments'in'Financial'Services.'
August'12'and'13'1994:'the'President'sent'letters'to'Senate'submitting'the'
Uruguay'Final'Act'for'concurrence'
December' 9,' 1994:' President' certified' necessity' for' immediate'
concurrence'
December' 14,' 1994:' Senate' concurred' through' resolution' 97' the'
ratification'of'the''WTO'agreement'
December'16,'1994:'President'signed'the'Instrument'of'Ratification'
o Agreement'Establishing'WTO'+'agreements'included'in'ANNEXES'
1,'2'&'3''only'
December'29,'1994:''Petition'was'filed'

ISSUES/HELD:'
1.
2.

W/N' court' has' jurisdiction?' Yes,' otherwise' walang' case' na' Tanada' v.'
Angara,'duh!'Wont'discuss,'he'doesnt'ask'this'
W/N'WTO'violates'letter,'spirit'and'intent'of'the'Constitutional'mandate'
of'Economic'Nationalism?'NO'(LIS'MOTA'OF'CASE)'

'

Article'II'(Principles'and'Policies),'Sec'19'TT'The'State'shall'develop'a'selfP
reliant' and' independent' national' economy' effectively' controlled' by'
Filipinos.'
Article'XII'(Natl'Econ'and'Patrimony),'Sec'10' TP'The'Congress'shall'enact'
measures' that' will' encourage' the' formation' and' operation' of' enterprises'
whose' capital' is' wholly' owned' by' Filipinos.' x' x' x' In' the' grant' of' rights,'
privileges,'and'concessions'covering'the'national'economy'and'patrimony,'
the'State'shall'give'preference'to'qualified'Filipinos.'
Article'XII,'Sec'12'TT'The'State'shall'promote'the'preferential'use'of'Filipino'
labor,'domestic'materials'and'locally'produced'goods,'and'adopt'measures'
that'help'make'them'competitive.'
Petitioner' asserts' that' these' sacred' constitutional' principles' are'
desecrated' by' the' WTO' provisions' in' Article' 2' (par' 1' and' 2)' and' the'
corresponding'annexes''
o They' provide' for' national' treatment' and' party' provisions'
which'place'nationals'and'products'of'member'countries'on'the'
same'footing'as'Filipinos'and'local'products,"'in'contravention'of'
the'"Filipino'First"'policy'of'the'Constitution.'

Also,' they' argue' that' these' provisions' contravene' constitutional'


limitations'on'role'of'export'in'natl'development'
SC:'(1)'Declaration'of'Principles'Not'SelfTExecuting'
o Mere' guides' or' aides' to' judicial' and' legislative' branch;' does' not'
provide'for'specific'legal'rights'from'which'a'cause'of'action'may'
stem.''
o They'need'legislative'enactment'(Basco'v.'Pagcor)'
SC:' (2)' Economic' Nationalism' should' be' read' with' other' constitutional'
mandates'to'attain'balanced'development'of'economy'
o Sections'10'and'12'of'Article'XII'should'be'read'and'understood'in'
relation'to'sections'1'and'13'of'the'same'article'
The' basic& goals& ' of' national' economic' development' in'
section' 1' are' (1)' more' equitable' distribution' of'
opportunities' and' wealth;' (2)' sustainable' increase' in'
goods'and'services;'and'(3)'expanded'productivity'
With' these' goals' in' context,' the' Constitution' then'
mandates' the' ideals' of' economic' nationalism' by'
expressing' preference. to. Filipinos' in' grants' of' rights,'
concessions,' etc.;' adopting' measures' to' make' them'
competitive;' and' requiring' the' state' to' develop' self4
reliant.and.independent'economy'
o Though' Section' 10' was' held' in' Manila. Prince. v.. GSIS. to' be'
complete' and' enforceable,' it' is' limited' to' the' preference' in' the'
grant' of' rights,' privileges' and' concession' and' NOT' TO' EVERY'
ASPECT'of'trade'and'commerce'
The' issue' here' is' whether,' as' a' rule,' there' are' enough'
balancing' provisions' in' the' constitution' to' allow' the'
Senate'to'ratify'the'WTO.'The'SC'thinks'there'are.''
o ALL'TOLD,'while'the'Constitution'mandates'preference'in'favor'of'
Filipinos,' at' the' same' time,' it' recognizes' the' need' for' business'
exchange'with'the'rest'of'the'world'on'the'bases'of'equality'and'
reciprocity' and' limits' protection' of' Filipino' enterprises' only'
against' foreign' competition' and' trade' practices' that' are' unfair'
(Section'1'of'Article'XII)'
In' other' words,' the' Constitution' did' not' pursue' an'
isolationist' policywhile' unlimited' entry' of' foreign'
goods,' services,' and' investments' in' the' country,' it' does'
not'prohibit'them'either.''
SC:'(3)'WTO'recognizes'need'to'protect'week'economies'
o In'the'WTO,'decisions'are'made'on'the'basis'of'sovereign'equality'
unlike'in'the'Security'Council'where'major'states'have'permanent'
seats'and'veto'power.''
o

Hence,' poor' countries' can' protect' common' interests' more'


effectively' through' WTO' than' 1PonP1' talks' with' developed'
countries'
SC:'(4)'Specific'WTO'provisos'protect'developing'countries'
o More' lenient' treatment' of' developing' countries;' reduction' in'
Tariff' rates' of' only' 24%' (36' for' developed)' within' a' period' of' 10'
years' (6' for' developed).' Similar' preference' to' developing'
countries' are' found' in' regard' subsidy' for' agricultural' products,'
foreign'competition'and'trade'practices'
SC:'(5)'Constitution'does'not'rule'out'foreign'competition'
o The' policy' in' the' constitution' is' to' have' a' self' reliant' and'
independent' national' economythis' does' not' rule' out' entry' of'
foreign'goods,'investment,'etc.'
o the'fundamental'law'encourages'industries'that'are'"competitive'
in' both' domestic' and' foreign' markets,"' thereby' demonstrating' a'
clear' policy' against' a' sheltered' domestic' trade' environment,' but'
one'in'favor'of'the'gradual'development'of'robust'industries'that'
can'compete'with'the'best'in'the'foreign'markets.'
SC:' (6)' Constitution' designed' to' Meet' Future' Events' and' Contingencies'
(ON'CONFLICT'OF'TREATY'AND'CONSTITUTION?)'
o WTO'was'not'yet'in'existence'when'1987'constitution'took'effect.'
Does'that'mean'that'our'charter'is'flawed?'In'the'same'token,'the'
UN'was'not'yet'in'existence'when'the'1935'constitution'became'
effective;' does' that' mean' that' the' then' constitution' might' not'
have' contemplated' a' diminution' of' absoluteness' of' sovereignty'
when' the' Philippines' effectively' surrendered' part' of' it' to' the'
control'of'the'Security'Council'by'signing'the'UN'charter?''
o Constitutions' are' interpreted' to' cover' even' future' and' unknown'
circumstancesit' can' bend' with' the' refreshing' winds' of' change'
necessitated'by'unfolding'events'
o It.must.grow.with.the.society.it.seeks.to.re4structure.and.march.
apace.with.the.progress.of.the.race,.drawing.from.the.vicissitudes.
of. history. the. dynamism. and. vitality. that. will. keep. it,. far. from.
becoming. a. petrified. rule,. a. pulsing,. living. law. attuned. to. the.
heartbeat.of.the.nation.'
o

'
4.

W/N' WTO' intrudes' on' the' power' of' SC' to' promulgate' rules' concerning'
pleadings,'practice'and'procedure?'NO,'same'arguments'as'above'

5.

W/N' Concurrence' was' only' in' WTO' agreement' and' not' in' other'
documents'contained'in'the'final'act?'NO,'see'below.''
'
As' seen' from' the' facts,' Secretary' Navarro' signed' the' Final' ACT' (WTO'
Agreement'+'annexes)''+'ministerial'declarations'and'understanding'AND'
financial'services'commitment.''
Since'the'senate'concurred'only'to'the'WTO'agreement'alone'is'in'effect'a'
rejection'of'the'Final'ACT'
SC:'
o Final' actprotocol' de' cloture,' is' the' instrument' which' records'
the'winding'up'of'the'proceedings'and'signed'by'plenipotentiaries'
attending' the' conference;' not' a' treaty' but' a' summary' of'
proceeding''

'

'
3.

W/N' WTO' unduly' limits,' restricts,' impairs' legislative' power' such' as'
power'to'tax?'It'limits,'but'it'is'valid.''

'

SC:'(1)'Sovereignty'it'limited'by'international'law'and'treaties'

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.''
o 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' .' .' .' 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.'
o '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.'
o 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'
SC:'(2)'UN'Charter'and'Other'treaties'limit'sovereignty'
o Many' treaties' cited' where' Philippines' effectively' agreed' to' limit'
exercise'of'powers'of'taxation,'eminent'domain,'and'police'power'
o The' point' is,' sovereignty' may' be' waived' without' violating' the'
constitution' based' on' rationale' that' Philippines' adopt' the'
generally' accepted' principles' of' international' law' as' part' of' the'
land'
o

o
o
o

By'signing'said'Final'Act,'Secretary'Navarro'as'representative'of'
the'Republic'of'the'Philippines'undertook:'
(a)'to'submit,'as'appropriate,'the'WTO'Agreement'for'
the'consideration'of'their'respective'competent'
authorities'with'a'view'to'seeking'approval'of'the'
Agreement'in'accordance'with'their'procedures;'and'
(b)'to'adopt'the'Ministerial'Declarations'and'Decisions.'
The'ministerial'decisions'were'deemed'adopted'without'need'or'
ratification'
The'Understanding'on'commitments'in'financial'services'does'not'
apply'to'Philippines'
The' senate' was' likewise' well' aware' of' what' is' was' concurring' in'
as'shown'by'the'deliberations'

'
DISPOSITIVE:'WHEREFORE,'the'petition'is'DISMISSED'for'lack'of'merit.'

SO'ORDERED.'
'

2. Mijares'v.'Ranada'
Topic:'Enforcement'of'Foreign'Judgment'
Treaties/Laws:'
Alien'Tort'Act'(this'wasnt'discussed'in'case,'I'just'put'a'Wikipedia'entry'at'
the'end'just'in'case'he'asks)'
Sec.'48,'Rule'39'of'Rules'of'Court'
Philippine'Constitution,'Art'II,'Sec.'2'
'
G.R.'No.'139325.''April'12,'2005'
Petitioners:'PRISCILLA'C.'MIJARES,'LORETTA'ANN'P.'ROSALES,'HILDA'B.'NARCISO,'SR.'
MARIANI'DIMARANAN,'SFIC,'and'JOEL'C.'LAMANGAN'in'their'behalf'and'on'behalf'
of' the' Class' Plaintiffs' in' Class' Action' No.' MDL' 840,' United' States' District' Court' of'
Hawaii,'.
Respondents:'HON.'SANTIAGO'JAVIER'RANADA,'in'his'capacity'as'Presiding'Judge'of'
Branch' 137,' Regional' Trial' Court,' Makati' City,' and' the' ESTATE' OF' FERDINAND' E.'
MARCOS,''
Ponente:'TINGA,'J.:'
'
FACTS:'
The' petitioners' in' this' case' are' prominent' victims' of' human' rights'
violations' who,' deprived' of' the' opportunity' to' directly' confront' the' man'
who' once' held' absolute' rule' over' this' country,' have' chosen' to' do' battle'

instead'with'the'earthly'representative,'his'estate.'The'clash'has'been'for'
now'interrupted'by'a'trial'court'ruling,'seemingly'comported'to'legal'logic,'
that' required' the' petitioners' to' pay' a' whopping' filing' fee' of' over' Four'
Hundred' SeventyPTwo' Million' Pesos' (P472,000,000.00)' in' order' that' they'
be'able'to'enforce'a'judgment'awarded'them'by'a'foreign'court.'''
On'9'May'1991,'a'complaint'was'filed'with'the'United'States'District'Court'
(US' District' Court),' District' of' Hawaii,' against' the' Estate' of' former'
Philippine'President'Ferdinand'E.'Marcos'(Marcos'Estate).'The'action'was'
brought' forth' by' ten' Filipino' citizens' who' each' alleged' having' suffered'
human' rights' abuses' such' as' arbitrary' detention,' torture' and' rape' in' the'
hands'of'police'or'military'forces'during'the'Marcos'regime.'
The' Alien' Tort' Act' was' invoked' as' basis' for' the' US' District' Courts'
jurisdiction' over' the' complaint,' as' it' involved' a' suit' by' aliens' for' tortious'
violations'of'international'law.''
These'plaintiffs'brought'the'action'on'their'own'behalf'and'on'behalf'of'a'
class' of' similarly' situated' individuals,' particularly' consisting' of' all' current'
civilian' citizens' of' the' Philippines,' their' heirs' and' beneficiaries,' who'
between' 1972' and' 1987' were' tortured,' summarily' executed' or' had'
disappeared' while' in' the' custody' of' military' or' paramilitary' groups.'
Plaintiffs' alleged' that' the' class' consisted' of' approximately' ten' thousand'
(10,000)'members;'hence,'joinder'of'all'these'persons'was'impracticable.'
The'institution'of'a'class'action'suit'was'warranted'under'Rule' 23(a)' and'
(b)(1)(B)' of' the' US' Federal' Rules' of' Civil' Procedure,' the' provisions' of'
which' were' invoked' by' the' plaintiffs.' Subsequently,' the' US' District' Court'
certified'the'case'as'a'class'action'and'created'three'(3)'subPclasses'of'(a)'
torture,' (b)' summary' execution' and' (c)' disappearance' victims.' Trial'
ensued,' and' subsequently' a' jury' rendered' a' verdict' and' an' award' of'
compensatory'and'exemplary'damages'in'favor'of'the'plaintiff'class.'''
3'February'1995,'the'US'District'Court,'presided'by'Judge'Manuel'L.'Real,'
rendered' a' Final' Judgment'(Final. Judgment)' awarding' the' plaintiff' class' a'
total'of'One'Billion'Nine'Hundred'Sixty'Four'Million'Five'Thousand'Eight'
Hundred'Fifty'Nine'Dollars'and'Ninety'Cents'($1,964,005,859.90).''
On'20'May'1997,'the'present'petitioners'filed'Complaint'with'the'Regional'
Trial' Court,' City' of' Makati' (Makati' RTC)' for' the' enforcement' of' the' Final.
Judgment.'' They' alleged' that' they' are' members' of' the' plaintiff' class' in'
whose'favor'the'US'District'Court'awarded'damages.''
On'5'February'1998,'the'Marcos'Estate'filed'a'motion'to'dismiss,'raising,'
among'others,'the'nonTpayment'of'the'correct'filing'fees.''It'alleged'that'
petitioners'had'only'paid'Four'Hundred'Ten'Pesos'(P410.00)'as'docket'and'
filing' fees,' notwithstanding' the' fact' that' they' sought' to' enforce' a'
monetary' amount' of' damages' in' the' amount' of' over' Two' and' a' Quarter'
Billion'US'Dollars'(US$2.25'Billion).'''
Judge' Santiago' Javier' Ranada' of' the' Makati' RTC' issued' the' subject' Order'

dismissing'the'complaint'without'prejudice.'Respondent'judge'opined'that'
contrary' to' the' petitioners' submission,' the' subject' matter' of' the'
complaint' was' indeed' capable' of' pecuniary' estimation,' as' it' involved' a'
judgment' rendered' by' a' foreign' court' ordering' the' payment' of' definite'
sums'of'money,'allowing'for'easy'determination'of'the'value'of'the'foreign'
judgment.' On' that' score,' Section' 7(a)' of' Rule' 141' of' the' Rules' of' Civil'
Procedure' would' find' application,' and' the' RTC' estimated' the' proper'
amount' of' filing' fees' was' approximately' Four' Hundred' Seventy' Two'
Million'Pesos,'which'obviously'had'not'been'paid.'
The'Commission'on'Human'Rights'(CHR)'was'permitted'to'intervene'in'this'
case.' It' urged' that' the' petition' be' granted' and' a' judgment' rendered,'
ordering'the'enforcement'and'execution'of'the'District'Court'judgment'in'
accordance'with'Section'48,'Rule'39'of'the'1997'Rules'of'Civil'Procedure.'
For' the' CHR,' the' Makati' RTC' erred' in' interpreting' the' action' for' the'
execution'of'a'foreign'judgment'as'a'new'case,'in'violation'of'the'principle'
that' once' a' case' has' been' decided' between' the' same' parties' in' one'
country'on'the'same'issue'with'finality,'it'can'no'longer'be'relitigated'again'
in'another'country.The'CHR'likewise'invokes'the'principle'of'comity,'and'of'
vested'rights.'

'
ISSUES/HELD:'
I.' Filing' Fees?' CORRECT,' incapable' of' pecuniary' estimation,' enforcement' of'
judgment.'(copy'pasted'from'CivPro'digest)''
II.'Basis'for'enforcement'of'foreign'judgment?'Sec.'48,'Rule'39'RoC'and'Consti,'Art'II,'
Sec.'2.'
'
RATIO:'
I.'Filing'Fees:'(CIVPRO)'
SECTION'7'(A)'RULE'141'IS'APPLICABLE'ONLY'IF'IT'IS'A'MONEY'CLAIM'NOT'BASED'
ON'JUDGEMENT'
Sec'7'(a)'states:'For'filing'an'action'or'a'permissive'counterclaim'or'
money'claim'against'an'estate'not'based'on'judgment...'
The'provision'of'the'law'does'not'make'any'distinction'between'a'local'
judgment'and'a'foreign'judgment,'and'where'the'law'does'not'distinguish,'
we'shall'not'distinguish'
Petitioners''complaint'may'have'been'lodged'against'an'estate,'but'it'is'
clearly'based'on'a'judgment,'the'Final.Judgment'of'the'US'District'Court,'
being'so'Section7'(a)'R'141'is'not'applicable''
SUBJECT'MATTER'OF'AN'ENFORCEMENT'OF'A'FOREIGN'JUDGEMENT'CASE'IS'THE'
FOREIGN'JUDGEMENT'
W/N'a'case'is'capable'of'pecuniary'estimation''

Generally'to'determine'w/n'a'claim'is'capable'of'pecuniary'estimation,'you'
have'to'look'at'its'primary'issue.'
If'it'is'primarily'for'the'recovery'of'a'sum'of'money'claim'then'it'is'capable'
of'pecuniary'estimation'but'if'the'money'claim'is'just'incidental'or'is'just'a'
consequence,'such'a'case'may'not'be'estimated'in'terms'of'money''
If'[the'case]'is'primarily'for'the'recovery'of'a'sum'of'money,'the'claim'is'
considered'capable'of'pecuniary'estimation''(Singsong.v..Isabela.Sawmill.
and.Raymundo.v..Court.of.Appeals)'
Examples:'Specific'performance'of'a'contract,'case'for'support,'annulment'
of'judgement'or'to'foreclose'a'mortgage'(Lapitan.v..Scandia)'
'However'the'court'said'that,'in'this'case,'even'if'the'subject'matter'is'
the'foreign'judgement,'there'is'no'denying'that'the'enforcement'of'the'
foreign'judgment'will'necessarily'result'in'the'award'of'a'definite'sum'of'
money.'Thus'it'is'it'is'capable'of'pecuniary'estimation'
APPLICABLE'FILING'FEE'
Rule'141'section'7(b)'(I'think'the'fees'were'updated/increased'by'SC'thus'
the'rule'says'P600'rather'than'P410'which'was'paid'by'the'petitioners)'
o (b)'For'filing'
1. Actions'where'the'valueof'the'subject'matter'cannot'be'
estimated'P'P'600.00'
2. Special'civil'actions'except'judicial'foreclosure'which'shall'be'
governed'by'paragraph'(a)'above'P'P'600.00'
3. All'other'actions'not'involving'property''T'P'600.00'
Sec'7'bP1'contended'by'the''petitioner'is'not'applicable'since'the'US'
District'Court'judgment'is'one'capable'of'pecuniary'estimation'
But'Sec7Pa'contended'by'the'respondents'is'not'also'applicable'since'this'
case'is'based'on'a'judgment'
Thus'SC'said'Sec7bP3''(others)'is'applicable'which'has'the'same'fees'as'
Sec7bP1'paid'by'the'petitioner'
Court'who'has'jurisdiction'to'hear'cases'for'enforcement'of'foreign'
judgements:'RTC''(see'BP'129'Sec'19'&33)'
1. Sec.'19.'Jurisdiction.in.civil.cases.''Regional'Trial'Courts'shall'
exercise'exclusive'original'jurisdiction:'
xxx'
(6)'In'all'cases'not'within'the'exclusive'jurisdiction'of'any'court,'
tribunal,'person'or'body'exercising'jurisdiction'or'any'court,'
tribunal,'person'or'body'exercising'judicial'or'quasiPjudicial'
functions.''
2. Section'33'jurisdiction'for'MTCs''

It'only'involves'cause'of'action'or'subject'matter'
pertaining'to'an'assertion'of'rights'and'interests'over'
property'or'a'sum'of'money'
But'a'mentioned'above,'subject'matter'of'an'action'to'
enforce'a'foreign'judgment'is'the'foreign'judgment'itself,'
and'the'cause'of'action'arising'from'the'adjudication'of'
such'judgment''
Since'MTCs'have'no'jurisdiction,'RTC'has'jurisdiction'

3.

'
II.'ENFORCEMENT'OF'FOREIGN'JUDGMENT'
The'rules'of'comity,'utility'and'convenience'of'nations'have'established'a'
usage'among'civilized'states'by'which'final'judgments'of'foreign'courts'of'
competent' jurisdiction' are' reciprocally' respected' and' rendered'
efficacious'under'certain'conditions'that'may'vary'in'different'countries.''
This' principle' was' prominently' affirmed' in' the' leading' American' case' of'
Hilton& v.& Guyot' and' expressly' recognized' in' our' jurisprudence' beginning'
with' Ingenholl& v.& Walter& E.& Olsen& && Co.' The' conditions' required' by' the'
Philippines' for' recognition' and' enforcement' of' a' foreign' judgment' were'
originally'contained'in'Section' 311' of' the' Code' of' Civil' Procedure,' which'
was'taken'from'the'California'Code'of'Civil'Procedure'which,'in'turn,'was'
derived' from' the' California' Act' of' March' 11,' 1872.' Remarkably,' the'
procedural'rule'now' outlined' in' Section' 48,' Rule' 39' of' the' Rules' of' Civil'
Procedure' has' remained' unchanged' down' to' the' last' word' in' nearly' a'
century.'Section'48'states:'
SEC.'48.'''''''Effect'of'foreign'judgments.''The'effect'of'a'judgment'of'a'tribunal'of'a'foreign'
country,'having'jurisdiction'to'pronounce'the'judgment'is'as'follows:'
a) In' case' of' a' judgment' upon' a' specific' thing,' the' judgment' is' conclusive' upon' the'
title'to'the'thing;'
b) In'case'of'a'judgment'against'a'person,'the'judgment'is'presumptive'evidence'of'a'
right'as'between'the'parties'and'their'successors'in'interest'by'a'subsequent'title;'
'
In' either' case,' the' judgment' or' final' order' may' be' repelled' by' evidence' of' a' want' of'
jurisdiction,'want'of'notice'to'the'party,'collusion,'fraud,'or'clear'mistake'of'law'or'fact.'

'

For'an'action'in.rem,'the'foreign'judgment'is'deemed'conclusive'upon'the'
title'to'the'thing,'while'in'an'action'in'personam,.the'foreign'judgment'is'
presumptive,' and' not' conclusive,' of' a' right' as' between' the' parties' and'
their'successors'in'interest'by'a'subsequent'title.'
However,' in' both' cases,' the' foreign' judgment' is' susceptible' to'
impeachment'in'our'local'courts'on'the'grounds'of'want'of'jurisdiction'or'
notice'to'the'party,'collusion,'fraud,'or'clear'mistake'of'law'or'fact.'
'Thus,' the' party' aggrieved' by' the' foreign' judgment' is' entitled' to' defend'
against'the'enforcement'of'such'decision'in'the'local'forum.'It'is'essential'

that'there'should'be'an'opportunity'to'challenge'the'foreign'judgment,'in'
order'for'the'court'in'this'jurisdiction'to'properly'determine'its'efficacy.'
Consequently,' the' party' attacking' a' foreign' judgment' has' the' burden' of'
overcoming'the'presumption'of'its'validity.'
The'rules'are'silent'as'to'what'initiatory'procedure'must'be'undertaken'
in'order'to'enforce'a'foreign'judgment'in'the'Philippines.'But'there'is'no'
question'that'the'filing'of'a'civil'complaint'is'an'appropriate'measure'for'
such'purpose.''
As' stated' in' Section' 48,' Rule' 39,' the' actionable' issues' are' generally'
restricted' to' a' review' of' jurisdiction' of' the' foreign' court,' the' service' of'
personal'notice,'collusion,'fraud,'or'mistake'of'fact'or'law.''
The' limitations' on' review' is' in' consonance' with' a' strong' and' pervasive'
policy'in'all'legal'systems'to'limit'repetitive'litigation'on'claims'and'issues.'
Otherwise' known' as' the' policy' of' preclusion,' it' seeks' to' protect' party'
expectations' resulting' from' previous' litigation,' to' safeguard' against' the'
harassment' of' defendants,' to' insure' that' the' task' of' courts' not' be'
increased'by'neverPending'litigation'of'the'same'disputes.'
There' have' been' attempts' to' codify' through' treaties' or' multilateral'
agreements'the'standards'for'the'recognition'and'enforcement'of'foreign'
judgments,' but' these' have' not' borne' fruition.' The' members' of' the'
European'Common'Market'accede'to'the'Judgments.Convention,'signed'in'
1978,'which'eliminates'as'to'participating'countries'all'of'such'obstacles'to'
recognition'such'as'reciprocity'and'rvision.au.fond.'The'most'ambitious'of'
these'attempts'is'the'Convention&on&the&Recognition&and&Enforcement&of&
Foreign&Judgments&in&Civil&and&Commercial&Matters,'prepared'in'1966'by'
the'Hague'Conference'of'International'Law.'While'it'has'not'received'the'
ratifications'needed'to'have'it'take'effect,'it'is'recognized'as'representing'
current' scholarly' thought' on' the' topic.' Neither' the' Philippines' nor' the'
United'States'are'signatories'to'the'Convention.'
Yet' even' if' there' is' no' unanimity' as' to' the' applicable' theory' behind' the'
recognition' and' enforcement' of' foreign' judgments' or' a' universal' treaty'
rendering' it' obligatory' force,' there' is' consensus' that' the' viability' of' such'
recognition'and'enforcement'is'essential.''
Salonga,' whose' treatise' on' private' international' law' is' of' worldwide'
renown,'points'out:'
o Whatever' be' the' theory' as' to' the' basis' for' recognizing' foreign'
judgments,'there'can'be'little'dispute'that'the'end'is'to'protect'
the'reasonable'expectations'and'demands'of'the'parties.'Where'
the'parties'have'submitted'a'matter'for'adjudication'in'the'court'
of' one' state,' and' proceedings' there' are' not' tainted' with'
irregularity,' they' may' fairly' be' expected' to' submit,' within' the'
state'or'elsewhere,'to'the'enforcement'of'the'judgment'issued'by'
the'court.'

There' is' also' consensus' as' to' the' requisites' for' recognition' of' a' foreign'
judgment' and' the' defenses' against' the' enforcement' thereof.' As' earlier'
discussed,'the'exceptions'enumerated'in'Section'48,'Rule'39'have'remain'
unchanged'since'the'time'they'were'adapted'in'this'jurisdiction'from'long'
standing' American' rules.' The' requisites' and' exceptions' as' delineated'
under'Section'48'are'but'a'restatement'of'generally'accepted'principles'of'
international' law.' Section' 98' of' The' Restatement,' Second,' Conflict' of'
Laws,'states'that'a' valid' judgment' rendered' in' a' foreign' nation' after' a'
fair' trial' in' a' contested' proceeding' will' be' recognized' in' the' United'
States,''
o the' term' valid' brings' into' play' requirements' such' notions' as'
valid'jurisdiction'over'the'subject'matter'and'parties.''
o The'notion'that'fraud'or'collusion'may'preclude'the'enforcement'
of'a'foreign'judgment'finds'affirmation'with'foreign'jurisprudence'
and'commentators,''
o as' well' as' the' doctrine' that' the' foreign' judgment' must' not'
constitute'a'clear'mistake'of'law'or'fact.''
o public' policy' as' a' defense' to' the' recognition' of' judgments'
serves' as' an' umbrella' for' a' variety' of' concerns' in' international'
practice'which'may'lead'to'a'denial'of'recognition.'
The' viability' of' the' public' policy' defense' against' the' enforcement' of' a'
foreign'judgment'has'been'recognized'in'this'jurisdiction.'
o This' defense' allows' for' the' application' of' local' standards' in'
reviewing' the' foreign' judgment,' especially' when' such' judgment'
creates'only'a'presumptive'right,'as'it'does'in'cases'wherein'the'
judgment'is'against'a'person.'
There' is' no' obligatory' rule' derived' from' treaties' or' conventions' that'
requires' the' Philippines' to' recognize' foreign' judgments,' or' allow' a'
procedure'for'the'enforcement'thereof.'''
However,'generally'accepted'principles'of'international'law,'by'virtue'of'
the'incorporation'clause'of'the'Constitution,'form'part'of'the'laws'of'the'
land'even'if'they'do'not'derive'from'treaty'obligations.'
o The' classical' formulation' in' international' law' sees' those'
customary'rules'accepted'as'binding'result'from'the'combination'
two' elements:' (1)' the' established,' widespread,' and' consistent'
practice' on' the' part' of' States;' and' (2)' a' psychological' element'
known'as'the'opinion&juris&sive&necessitates'(opinion'as'to'law'or'
necessity).' Implicit' in' the' latter' element' is' a' belief' that' the'
practice' in' question' is' rendered' obligatory' by' the' existence' of' a'
rule'of'law'requiring'it.'
As' earlier' demonstrated,' there' is' a' widespread' practice' among' states'
accepting' in' principle' the' need' for' such' recognition' and' enforcement,'
albeit' subject' to' limitations' of' varying' degrees.' The' fact' that' there' is' no'
binding' universal' treaty' governing' the' practice' is' not' indicative' of' a'

widespread'rejection'of'the'principle,'but'only'a'disagreement'as'to'the'
imposable' specific' rules' governing' the' procedure' for' recognition' and'
enforcement.'
Aside'from'the'widespread'practice,'it'is'indubitable'that'the'procedure'for'
recognition' and' enforcement' is' embodied' in' the' rules' of' law,' whether'
statutory'or'jurisprudential,'adopted'in'various'foreign'jurisdictions.'In'the'
Philippines,'this'is'evidenced'primarily'by'Section'48,'Rule'39'of'the'Rules'
of' Court' which' has' existed' in' its' current' form' since' the' early' 1900s.'
Certainly,' the' Philippine' legal' system' has' long' ago' accepted' into' its'
jurisprudence' and' procedural' rules' the' viability' of' an' action' for'
enforcement' of' foreign' judgment,' as' well' as' the' requisites' for' such' valid'
enforcement,'as'derived'from'internationally'accepted'doctrines.'''
The' procedure' and' requisites' outlined' in' Section' 48,' Rule' 39' derive' their'
efficacy' not' merely' from' the' procedural' rule,' but' by' virtue' of' the'
incorporation'clause'of'the'Constitution.''The'Supreme'Court'is'obliged,'as'
are'all'State'components,'to'obey'the'laws'of'the'land,'including'generally'
accepted' principles' of' international' law' which' form' part' thereof,' such' as'
those' ensuring' the' qualified' recognition' and' enforcement' of' foreign'
judgments.'
Thus,'relative'to'the'enforcement'of'foreign'judgments'in'the'Philippines,'
it'emerges'that'there'is'a'general'right'recognized'within'our'body'of'laws,'
and'affirmed'by'the'Constitution,'to'seek'recognition'and'enforcement'of'
foreign' judgments,' as' well' as' a' right' to' defend' against' such' enforcement'
on' the' grounds' of' want' of' jurisdiction,' want' of' notice' to' the' party,'
collusion,'fraud,'or'clear'mistake'of'law'or'fact.'
POINT' OF' THIS' WHOLE' DISCUSSION:' PHILIPPINES' RECOGNIZES' FOREIGN'
JUDGMENTS' ON' THE' BASIS' OF' INTERNATIONAL' COMITY,' GENERALLY'
ACCEPTED'PRINCIPALS'OF'INTL'LAW,'INCLUSION'CLAUSE'OF'1987'CONSTI'
(Art.'II,'Sec.'2),'Sec.'48,'Rule'39'of'Rules'of'Court.''

'
WHAT'HAPPENED'TO'CASE?'
Use' Php410' as' docket' fees' because' its' an' action' incapable' of' pecuniary'
estimation'
Rules' of' Court' promote' reasonableness,' to' ask' for' 42M' worth' of' docket'
fees'is'excessive'and'wouldnt'promote'justice'blahblah'
'
WHEREFORE,'the'petition'is'GRANTED.'The'assailed'orders'are'NULLIFIED'and'SET'
ASIDE,' and' a' new' order' REINSTATING' Civil' Case' No.' 97P1052' is' hereby' issued.' No'
costs.'
SO'ORDERED.'
.
ALIEN'TORT'ACT:'(source:'Wikipedia)&
'

Public'International'Law'

1. Bayan'v.'Zamora'(RK)'

Sources'of'International'Law:'Treaties'

'

[G.R.'No.'138570.'October'10,'2000]
BAYAN'(Bagong'Alyansang'Makabayan),'a'JUNK'VFA'MOVEMENT,'BISHOP'TOMAS'MILLAMENA'(Iglesia'Filipina'Independiente),'BISHOP'
ELMER'BOLOCAN'(United'Church'of'Christ'of'the'Phil.),'DR.'REYNALDO'LEGASCA,'MD,'KILUSANG'MAMBUBUKID'NG'
PILIPINAS,'KILUSANG'MAYO'UNO,'GABRIELA,'PROLABOR,'and'the'PUBLIC'INTEREST'LAW'CENTER,'petitioners,*
vs.*EXECUTIVE'SECRETARY'RONALDO'ZAMORA,'FOREIGN'AFFAIRS'SECRETARY'DOMINGO'SIAZON,'DEFENSE'SECRETARY'
ORLANDO'MERCADO,'BRIG.'GEN.'ALEXANDER'AGUIRRE,'SENATE'PRESIDENT'MARCELO'FERNAN,'SENATOR'FRANKLIN'
DRILON,'SENATOR'BLAS'OPLE,'SENATOR'RODOLFO'BIAZON,'and'SENATOR'FRANCISCO'TATAD,*respondents.*
G.R.'No.'138572.'October'10,'2000]'
PHILIPPINE'CONSTITUTION'ASSOCIATION,'INC.(PHILCONSA),'EXEQUIEL'B.'GARCIA,'AMADOGAT'INCIONG,'CAMILO'L.'SABIO,'AND'RAMON'
A.'GONZALES,'petitioners,*vs.*HON.'RONALDO'B.'ZAMORA,'as'Executive'Secretary,'HON.'ORLANDO'MERCADO,'as'
Secretary'of'National'Defense,'and'HON.'DOMINGO'L.'SIAZON,'JR.,'as'Secretary'of'Foreign'Affairs,'respondents'
[G.R.'No.'138587.'October'10,'2000]'
TEOFISTO'T.'GUINGONA,'JR.,'RAUL'S.'ROCO,'and'SERGIO'R.'OSMEA'III,'petitioners,*vs.*JOSEPH'E.'ESTRADA,'RONALDO'B.'ZAMORA,'
DOMINGO'L.'SIAZON,'JR.,'ORLANDO'B.'MERCADO,'MARCELO'B.'FERNAN,'FRANKLIN'M.'DRILON,'BLAS'F.'OPLE'and'
RODOLFO'G.'BIAZON,'respondents*
[G.R.'No.'138680.'October'10,'2000]'
INTEGRATED'BAR'OF'THE'PHILIPPINES,'Represented'by'its'National'President,'Jose'Aguila'Grapilon,'petitioners,*vs.*JOSEPH'EJERCITO'
ESTRADA,'in'his'capacity'as'President,'Republic'of'the'Philippines,'and'HON.'DOMINGO'SIAZON,'in'his'capacity'as'
Secretary'of'Foreign'Affairs,'respondents.['
G.R.'No.'138698.'October'10,'2000]'
JOVITO'R.'SALONGA,'WIGBERTO'TAADA,'ZENAIDA'QUEZONdAVENCEA,'ROLANDO'SIMBULAN,'PABLITO'V.'SANIDAD,'MA.'SOCORRO'I.'
DIOKNO,'AGAPITO'A.'AQUINO,'JOKER'P.'ARROYO,'FRANCISCO'C.'RIVERA'JR.,'RENE'A.V.'SAGUISAG,'KILOSBAYAN,'
MOVEMENT'OF'ATTORNEYS'FOR'BROTHERHOOD,'INTEGRITY'AND'NATIONALISM,'INC.'(MABINI),'petitioners,*vs.*THE'
EXECUTIVE'SECRETARY,'THE'SECRETARY'OF'FOREIGN'AFFAIRS,'THE'SECRETARY'OF'NATIONAL'DEFENSE,'SENATE'PRESIDENT'
MARCELO'B.'FERNAN,'SENATOR'BLAS'F.'OPLE,'SENATOR'RODOLFO'G.'BIAZON,'AND'ALL'OTHER'PERSONS'ACTING'THEIR'
CONTROL,'SUPERVISION,'DIRECTION,'AND'INSTRUCTION'IN'RELATION'TO'THE'VISITING'FORCES'AGREEMENT'
(VFA),'respondents.'

BUENA,'J.:'
FACTS:'
Brief'History:'

March!14,!1947,!US!and!PH!forged!the!RP8US!Military!Bases!Agreement'

August!30,!1951,!US!and!PH!entered!into!a!Mutual!Defense!Treaty!'

RP8US!Military!Bases!Agreement!expired!in!1991\'
o the!PH!Senate!rejected!the!proposed!RP8US!Treaty!of!Friendship,!
Cooperation!and!Security!in!Sept!16,!1991!which!would!have!extended!
presence!of!US!military!bases!in!the!PH.!'

July!18,!1997,!US!(represented!by!Kurt!Campbell,!Defense!Deputy!Assistant!
Secretary)!and!PH!(Rodolfo!Severino!Jr.,!DFA!undersecretary)!met!to!discuss!the!
possible!elements!of!the!Visiting!Forces!Agreement!(VFA)'

This!resulted!to!a!series!of!conferences!and!negotiations!which!culminated!on!
January!12!and!13,!1998.!Then!President!Fidel!Ramos!approved!the!VFA,!which!was!
respectively!signed!by!DFA!Secretary!Domingo!Siazon!and!US!Ambassador!Thomas!
Hubbard!'

October!5,!1998,!President!Joseph!Estrada,!through!DFA!Secretary,!ratified!the!VFA.!'

October!6,!1998,!President!transmitted!to!the!Senate!for!concurrence!pursuant!to!
Section'21,'Article'VII'of'the'1987'Constitution.!The!VFA!was!referred!to!the!
committee!on!National!Defense!and!Security!for!recommendation!and!hearing'

'

May!3,!1999,!the!committee!submitted!Propose!Senate!Resolution!No!443!
recommending!concurrence!of!the!Senate!to!the!VFA'
May!27,!1999,!proposed!Senate!Resolution!No.!443!was!approved!by!the!Senate!via!
2/3!vote!of!its!members'
June!1,!1999,!the!VFA!officially!entered!into!force!after!Exchange'of'Notes!between!
Secretary!Siazon!and!US!Ambassador!Hubbard.!*!see#case#for#full#text#of#VFA'

'
The'Present'Action'

Via!these!consolidated!petitions!for!certiorari!and!prohibition,!petitioners!8!as!
legislators,!non8governmental!organizations,!citizens!and!taxpayers!8!assail!the!
constitutionality!of!the!VFA!and!impute!to!herein!respondents!grave!abuse!of!
discretion!in!ratifying!the!agreement.'
'
ISSUES*:'
1. Do!petitioners!have!legal!standing!as!concerned!citizens,!taxpayers,!or!legislators!to!
question!the!constitutionality!of!the!VFA?'
2. Is!the!VFA!governed!by!the!provisions!of!Section!21,!Article!VII!or!of!Section!25,!
Article!XVIII!of!the!Constitution?!
3. Does!the!VFA!constitute!an!abdication!of!Philippine!sovereignty?!
a.!Are!Philippine!courts!deprived!of!their!jurisdiction!to!hear!and!try!offenses!
committed!by!US!military!personnel?!
b.!Is!the!Supreme!Court!deprived!of!its!jurisdiction!over!offenses!punishable!
by!reclusion!perpetua!or!higher?!
4. Does!the!VFA!violate:!
a.!the!equal!protection!clause!under!Section!1,!Article!III!of!the!Constitution?!
b.!the!Prohibition!against!nuclear!weapons!under!Article!II,!Section!8?!
c.!Section! 28! (4),! Article! VI! of! the! Constitution! granting! the! exemption! from!
taxes!and!duties!for!the!equipment,!materials!supplies!and!other!properties!
imported!into!or!acquired!in!the!Philippines!by,!or!on!behalf,!of!the!US!Armed!
Forces?!
HELD/RATIO:'
1. Petitioners'Bayan'Muna,'etc.'have'no'standing.!!!

A!party!bringing!a!suit!challenging!the!Constitutionality!of!a!law!must!show!not!only!
that!the!law!is!invalid,!but!that!he!has!sustained!or!is!in!immediate!danger!of!
sustaining!some!direct!injury!as!a!result!of!its!enforcement,!and!not!merely!that!he!
suffers!thereby!in!some!indefinite!way.!!Petitioners!have!failed!to!show!that!they!
are!in!any!danger!of!direct!injury!as!a!result!of!the!VFA.!

As!taxpayers,!they!have!failed!to!establish!that!the!VFA!involves!the!exercise!by!
Congress!of!its!taxing!or!spending!powers.!A!taxpayers!suit!refers!to!a!case!where!
the!act!complained!of!directly!involves!the!illegal!disbursement!of!public!funds!

1!

Public'International'Law'

2.

Sources'of'International'Law:'Treaties'

derived!from!taxation.!!Before!he!can!invoke!the!power!of!judicial!review,!he!must!
specifically!prove!that!he!has!sufficient!interest!in!preventing!the!illegal!
expenditure!of!money!raised!by!taxation!and!that!he!will!sustain!a!direct!injury!as!a!
result!of!the!enforcement!of!the!questioned!statute!or!contract.!It!is!not!sufficient!
that!he!has!merely!a!general!interest!common!to!all!members!of!the!
public.!!Clearly,!inasmuch!as!no!public!funds!raised!by!taxation!are!involved!in!this!
case,!and!in!the!absence!of!any!allegation!by!petitioners!that!public!funds!are!being!
misspent!or!illegally!expended,!petitioners,!as!taxpayers,!have!no!legal!standing!to!
assail!the!legality!of!the!VFA.!
Similarly,!the!petitioner8legislators!(Tanada,!Arroyo,!etc.)!do!not!possess!the!
requisite!locus!standi!to!sue.!In!the!absence!of!a!clear!showing!of!any!direct!injury!
to!their!person!or!to!the!institution!to!which!they!belong,!they!cannot!sue.!!The!
Integrated!Bar!of!the!Philippines!(IBP)!is!also!stripped!of!standing!in!these!cases.!
The!IBP!lacks!the!legal!capacity!to!bring!this!suit!in!the!absence!of!a!board!
resolution!from!its!Board!of!Governors!authorizing!its!National!President!to!
commence!the!present!action.!
Notwithstanding,'in'view'of'the'paramount'importance'and'the'constitutional'
significance'of'the'issues'raised,'the'Court'may'brush'aside'the'procedural'barrier'
and'takes'cognizance'of'the'petitions.'
'
APPLICABLE'CONSTITUTIONAL'PROVISION'
'
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.'
o Section'21,'Article'VII88!No!treaty!or!international!agreement!shall!be!
valid!and!effective!unless!concurred!in!by!at!least!two8thirds!of!all!the!
Members!of!the!Senate.'
o Section'25,'Article'XVIII!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.'
SC:'Section!25,!Art!XVIII,!not!section!21,!Art.!VII,!applies,!as!the!VFA!involves!the!
presence!of!foreign!military!troops!in!the!Philippines.'

'

The!Constitution!contains!two!provisions!requiring!the!concurrence!of!
the!Senate!on!treaties!or!international!agreements.!Section!21,!Article!VII!
reads:![n]o!treaty!or!international!agreement!shall!be!valid!and!effective!
unless!concurred!in!by!at!least!two8thirds!of!all!the!Members!of!the!
Senate.!Section!25,!Article!XVIII,!provides:[a]fter!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!two8thirds!(2/3)!of!all!
the!Members!of!the!Senate!is!required!to!make!the!treaty!valid!and!
binding!to!the!Philippines.!This!provision!lays!down!the!general!rule!on!
treaties.!All#treaties,#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.!Sec#25#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.#
On!the!whole,!the!VFA'is'an'agreement'which'defines'the'treatment'of'
US'troops'visiting'the'Philippines.!It!provides!for!the!guidelines!to!govern!
such!visits!of!military!personnel,!and!further!defines!the!rights!of!the!US!
and!RP!government!in!the!matter!of!criminal!jurisdiction,!movement!of!
vessel!and!aircraft,!import!and!export!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,!however,!the!provisions!of!
Section'21,'Article'VII'will'find'applicability!with!regard!to!determining!

2!

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3.

Sources'of'International'Law:'Treaties'

the!number'of'votes!required!to!obtain!the!valid!concurrence!of!the!
Senate.!
o 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.!The!Constitution!
makes!no!distinction!between!transient!and!permanent.!We!find!
nothing!in!Section!25,!Article!XVIII!that!requires!foreign!troops!or!facilities!
to!be!stationed!or!placed!permanently!in!the!Philippines.!!When!no!
distinction!is!made!by!law;!the!Court!should!not!distinguish.!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.!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,!such!that!three!different!situations!!are!
contemplated!!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.'
'
WERE'REQUIRMENTS'OF'SEC'25,'ART'XVIII'COMPLIED'WHEN'SENATE'GAVE'
CONCURRENCE'TO'VFA?'YES'
'
Section!25,!Article!XVIII!disallows!foreign!military!bases,!troops,!or!facilities!in!the!
country,!unless!the!following!conditions!are!sufficiently!met:!(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!Constitution,!as!there!were!at!least!16!Senators!that!
concurred.!
As'to'condition'(c),!the!Court!held!that!the!phrase!recognized'as'a'treaty!means!
that!the!other!contracting!party!accepts!or!acknowledges!the!agreement!as!a!
treaty.!To'require'the'US'to'submit'the'VFA'to'the'US'Senate'for'concurrence'
pursuant'to'its'Constitution,'is'to'accord'strict'meaning'to'the'phrase.!Well8
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.!

'

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.!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.!
a.
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!legal!
significance.!Certain!terms!are!useful,!but!they!furnish!little!more!than!mere!
description.!
b. 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.! Thus,' in' international' law,' there' is' no' difference' between'
treaties'and'executive'agreements'in'their'binding'effect'upon'states'concerned,'
as' long' as' the' negotiating' 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.'

The'records'reveal'that'the'US'Government,'through'Ambassador'Hubbard,'has'
stated'that'the'US'has'fully'committed'to'living'up'to'the'terms'of'the'VFA.!For!as!
long!as!the!US!accepts!or!acknowledges!the!VFA!as!a!treaty,!and!binds!itself!further!
to!comply!with!its!treaty!obligations,!there!is!indeed!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!nations!consent!to!be!bound!by!said!treaty,!with!the!concomitant!duty!to!
uphold!the!obligations!and!responsibilities!embodied!thereunder.!!Ratification!is!
generally!held!to!be!an!executive!act,!undertaken!by!the!head!of!the!state,!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.!In!our!jurisdiction,!the!
power!to!ratify!is!vested!in!the!President!and!not,!as!commonly!believed,!in!the!
legislature.!The!role!of!the!Senate!is!limited!only!to!giving!or!withholding!its!
consent,!or!concurrence,!to!the!ratification.!
With!the!ratification!of!the!VFA!it!now!becomes!obligatory!and!incumbent!on!our!
part,!under!principles!of!international!law!(pacta!sunt!servanda),!to!be!bound!by!
the!terms!of!the!agreement.!Thus,!no!less!than!Section!2,!Article!II!declares!that!the!

3!

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Sources'of'International'Law:'Treaties'

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.!

!
4.

ON'GRAVE'ABUSE'OF'DISCRETION!
As!regards!the!power!to!enter!into!treaties!or!international!agreements,!the!
Constitution!vests!the!same!in!the!President,!subject!only!to!the!concurrence!of!at!
least!two8thirds!vote!of!all!the!members!of!the!Senate.!In!this!light,!the!negotiation!
of!the!VFA!and!the!subsequent!ratification!of!the!agreement!are!exclusive!acts!
which!pertain!solely!to!the!President,!in!the!lawful!exercise!of!his!vast!executive!
and!diplomatic!powers!granted!him!no!less!than!by!the!fundamental!law!itself.!Into#
the#field#of#negotiation#the#Senate#cannot#intrude,#and#Congress#itself#is#powerless#
to#invade#it'

onsequently,!the!acts!or!judgment!calls!of!the!President!involving!the!VFA8
specifically!the!acts!of!ratification!and!entering!into!a!treaty!and!those!necessary!or!
incidental!to!the!exercise!of!such!principal!acts!8!squarely!fall!within!the!sphere!of!
his!constitutional!powers!and!thus,!may!not!be!validly!struck!down,!much!less!
calibrated!by!this!Court,!in!the!absence!of!clear!showing!of!grave!abuse!of!power!or!
discretion.'

Even!if!he!erred!in!submitting!the!VFA!to!the!Senate!for!concurrence!under!the!
provisions!of!Section!21!of!Article!VII,!instead!of!Section!25!of!Article!XVIII!of!the!
Constitution,!still,!the!President!may!not!be!faulted!or!scarred,!much!less!be!
adjudged!guilty!of!committing!an!abuse!of!discretion!in!some!patent,!gross,!and!
capricious!manner.'

Corollarily,!the!Senate,!in!the!exercise!of!its!discretion!and!acting!within!the!limits!
of!such!power,!may!not!be!similarly!faulted!for!having!simply!performed!a!task!
conferred!and!sanctioned!by!no!less!than!the!fundamental!law.'

For!the!role!of!the!Senate!in!relation!to!treaties!is!essentially!legislative!in!
[57]
character; !the!Senate,!as!an!independent!body!possessed!of!its!own!erudite!
mind,!has!the!prerogative!to!either!accept!or!reject!the!proposed!agreement,!and!
whatever!action!it!takes!in!the!exercise!of!its!wide!latitude!of!discretion,!pertains!to!
the!wisdom!rather!than!the!legality!of!the!act.!'

True!enough,!rudimentary!is!the!principle!that!matters!pertaining!to!the!wisdom!of!
a!legislative!act!are!beyond!the!ambit!and!province!of!the!courts!to!inquire.'

In!fine,!absent!any!clear!showing!of!grave!abuse!of!discretion!on!the!part!of!
respondents,!this!Court8!as!the!final!arbiter!of!legal!controversies!and!staunch!
sentinel!of!the!rights!of!the!people!8!is!then!without!power!to!conduct!an!incursion!
and!meddle!with!such!affairs!purely!executive!and!legislative!in!character!and!
nature.!'
*Issues'as'enumerated'in'the'case.'

'

NOTE:'SC'did'not'answer'issues'no.'3a,b,'and'4a,'b,'c'
'
WHEREFORE,! in! light! of! the! foregoing! disquisitions,! the! instant! petitions! are! hereby!
DISMISSED.!
SO'ORDERED.'

2. Lim'v.'Executive'Secretary'(RC)'
Topic:!Treaty!Interpretation,!examine!the!!
Treaties/Laws:!

Mutual!Defense!Treaty!(MDT)!!Bases!Agreement!

Visiting!Forces!Agreement!(VFA)!!replaced!the!Bases!Agreement!when!it!expired!

Vienna!Convention!on!the!Law!of!Treaties!(just!Articles!31!and!32,!in!ratio!part)!

UN!Charter!!

Philippine!Constitution!
'
G.R.'No.'151445''''''April'11,'2002!
Petitioner:! ARTHUR' D.' LIM' and' PAULINO' R.' ERSANDO,! SANLAKAS' and' PARTIDO' NG'
MANGGAGAWA,!petitioner8intervenors!
Respondents:! HONORABLE' EXECUTIVE' SECRETARY' as' alter' ego' of' HER' EXCELLENCEY'
GLORIA' MACAPAGALdARROYO,' and' HONORABLE' ANGELO' REYES' in' his' capacity' as'
Secretary'of'National'Defense'
!
FACTS:!

This!case!involves!a!petition!for!certiorari!and!prohibition!as!well!as!a!petition8in8
intervention,!praying!that!respondents'be'restrained'from'proceeding'with'the'sod
called' "Balikatan' 02d1"! and! that! after! due! notice! and! hearing,! that! judgment! be!
rendered! issuing! a! permanent! writ! of! injunction! and/or! prohibition' against' the'
deployment' of' U.S.' troops' in' Basilan' and' Mindanao' for' being' illegal' and' in'
violation'of'the'Constitution.!

Beginning!January!2002,!personnel!from!the!armed!forces!of!the!United!States!of!
America! started! arriving! in! Mindanao! to! take! part,! in! conjunction! with! the!
Philippine!military,!in!"Balikatan!0281."!These!so8called!"Balikatan"!exercises!are!the!
largest! combined' training' operations' involving' Filipino' and' American' troops.! In!
theory,!they!are!a!simulation'of'joint'military'maneuvers'pursuant'to'the'Mutual'
Defense'Treaty,!a!bilateral!defense!agreement!entered!into!by!the!Philippines!and!
the!United!States!in!1951.!

Prior! to! 2002,! the! last! "Balikatan"! was! held! in! 1995.! In! the! meantime,! the!
respective! governments! of! the! two! countries! agreed! to! hold! joint! exercises! on! a!
reduced! scale.! The! lack! of! consensus! was! eventually! cured! when! the! two! nations!

4!

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Sources'of'International'Law:'Treaties'

concluded!the!Visiting!Forces!Agreement!(V!FA)!in!1999.!
The! entry! of! American! troops! into! Philippine! soil! is! proximately' rooted' in' the'
international' antidterrorism' campaign' declared' by' President' George' W.' Bush! in!
reaction!to!the!tragic!events!that!occurred!on!9/11.!!
On! February! 1,! 2002,! petitioners! Arthur! D.! Lim! and! Paulino! P.! Ersando! filed! this!
petition! for! certiorari! and! prohibition,! attacking! the! constitutionality! of! the! joint!
exercise! in! their! capacity! as! citizens,! lawyers! and! taxpayers.! They! were! joined!
subsequently! by! SANLAKAS! and! PARTIDO! NG! MANGGAGAWA,! both! party8Iist!
organizations!whose!members!reside!in!Zamboanga!and!Sulu,!who!filed!a!petition8
in8intervention!on!February!11,!2002.!
On!February!71!2002!the!Senate!conducted!a!hearing!on!the!"Balikatan"!exercise!
wherein!Vice8President!Teofisto!T.!Guingona,!Jr.,!who!is!concurrently!Secretary!of!
Foreign.!Affairs,!presented!the!Draft!Terms!of!Reference!(TOR).!Five!days!later,!he!
approved! the! TOR,! which! we! quote! hereunder:! (at! end! of! digest! if! you! want! to!
look)!

!
ISSUE/HELD:!
I.!W/N!petitioners!have!standing?!YES'(minor'issue'in'grey)'
II.!W/N!the!Balikatan!Exercises!fall!within!the!purview!of!the!Visiting!Forces!Agreement?!YES'
III.!W/N!VFA!sanctions!actual!combat?!NO'
!
!
RATIO:!
I.!STANDING:!YES'THEY'HAVE'STANDING'bec.'of'the'importance'of'the'issue'

Anent! their! locus# standi,# the! Solicitor! General! argues! that! first,# they! may! not! file!
suit! in! their! capacities! as,! taxpayers! inasmuch! as! it! has! not! been! shown! that!
"Balikatan! 0281! "! involves! the! exercise! of! Congress'! taxing! or! spending! powers.!
Second,# their! being! lawyers! does! not! invest! them! with! sufficient! personality! to!
initiate!the!case,!citing!our!ruling!in!Integrated* Bar* of* the* Philippines* v.* Zamora.#
Third,!Lim!and!Ersando!have!failed!to!demonstrate!the!requisite!showing!of!direct!
personal!injury.!We'agree.!

It!is!also!contended!that!the!petitioners!are!indulging!in!speculation.!The!Terms!of!
Reference! are! clear! as! to! the! extent! and! duration! of! "Balikatan! 0281,"! the! issues!
raised! by! petitioners! are! premature,! as! they! are! based! only! on! a! fear! of! future#
violation!of!the!Terms!of!Reference.!Even!petitioners'!resort!to!a!special!civil!action!
for!certiorari!is!assailed!on!the!ground!that!the!writ!may!only!issue!on!the!basis!of!
established!facts.!

Given'the'primordial'importance'of'the'issue'involved,'it'will'suffice'to'reiterate'
our'view'on'this'point'in'a'related'case:'
o In!view!of!the!paramount!importance!and!the!constitutional!significance!

'

of!the!issues!raised!in!the!petitions,!this!Court,!in!the!exercise!of!its!sound!
discretion,!brushes!aside!the!procedural!barrier!and!takes!cognizance!of!
the!petitions,!
o Gonzales' vs.' COMELEC,' Daza' vs.' Singson,' and' Basco' vs.' Phil,'
Amusement'and'Gaming'Corporation,!where!we!emphatically!held:!
Considering!however!the!importance!to!the!public!of!the!case!at!bar,!and!
in! keeping! with! the! Court's' duty,' under' the' 1987' Constitution,' to'
determine'whether'or'not'the'other'branches'of'the'government'have'
kept'themselves'within'the'limits'of'the'Constitution'and'the'laws'that'
they' have' not' abused' the' discretion' given' to' them,! the! Court! has!
brushed! aside! technicalities! of! procedure! and! has! taken! cognizance! of!
this!petition.!xxx'!
o Kilosbayan' vs.' Guingona,' Jr.,! this! Court! ruled! that! in! cases! of!
transcendental! importance,! the' Court' may' relax' the' standing'
requirements'and'allow'a'suit'to'prosper'even'where'there'is'no'direct'
injury'to'the'party'claiming'the'right'of'judicial'review.!
Primary'concern'of'this'case'is'the'INTERPRETATION'of'the'VFA.!

!
II.!FALL!WITHIN!VFA?!YES'

At! any! rate,! petitioners'! concerns! on! the! lack! of! any! specific! regulation! on! the!
latitude!of!activity!US!personnel!may!undertake!and!the!duration!of!their!stay!has!
been!addressed!in!the!Terms!of!Reference.!

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!MDT's!objectives.!It!is!this'treaty'to'which'the'VFA'adverts'and'the'
obligations'thereunder'which'it'seeks'to'reaffirm.'

The!lapse!of!the!USdPhilippine' Bases' Agreement' in' 1992' and' the' decision' not' to'
renew'it'created'a'vacuum'in'USdPhilippine'defense'relations,'that'is,'until'it'was'
replaced' by' the' Visiting' Forces' Agreement.! On! October! 10,! 2000,! by! a! vote! of!
eleven!to!three,!this!Court!upheld!the!validity!of!the!VFA.!!

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! 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!VFA!permits!United!States!personnel!to!engage,!on!an!impermanent!basis,!in!

5!

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"activities,"' the' exact' meaning' of' which' was' left' undefined.! (MAIN' PROBLEM)!
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! left! completely! unaided.! The! Vienna' Convention' on' the' Law' of'
Treaties,! which! contains! provisos! governing! interpretations! of! international!
agreements,!state:!

SECTION!3.!INTERPRETATION!OF!TREATIES!
Article*31'
General#rule#of#interpretation!
1.! A! treaty! shall! be! interpreted' in' good' faith' ill' accordance' with' the' ordinary'
meaning'to'be'given'to'the'tenus'of'the'treaty'in'their'context'and'in'the'light'of'
its'object'and'purpose.'
2.! The! context! for! the! purpose! of! the! interpretation! of! a! treaty! shall! comprise,! in!
addition!to!the!text,!including!its!preamble!and!annexes:!
(a)! any! agreement! relating' to' the' treaty' which' was' made' between' all'
the'parties'in'connexion'with'the'conclusion'of'the'treaty;'
(b)!any!instrument'which'was'made'by'one'or'more'parties'in'connexion!
with!the!conclusion!of!the!treaty!and!accepted'by'the'other'parties'as'an'
instrument'related'to'the'party'.'
3.!There!shall!be!taken!into!account,!together!with!the!context:!
(a)! any! subsequent' agreement' between' the' parties' regarding' the'
interpretation'of'the'treaty!or!the!application!of!its!provisions;!
(b)! any' subsequent' practice' in' the' application' of' the' treaty' which'
establishes'the'agreement'of'the'parties'regarding'its'interpretation;!
(c)! any! relevant' rules' of' international' law' applicable' in' the' relations!
between!the!parties.!
4.!A!special!meaning!shall!be!given!to!a!term!if!it!is!established!that!the!parties!so!
intended.!
*
Article*32'
Supplementary#means#of#interpretation!
Recourse' may' be' had' to' supplementary' means' of' interpretation,' including' the'
preparatory'work'of'the'treaty'and'the'circumstances'of'its'conclusion,!in!order!to!
confirm! the! meaning! resulting! from! the! application! of! article! 31,! or! to! determine!
the!meaning!when!the!interpretation!according!to!article!31!:!
(a)!leaves!the!meaning!ambiguous!or!obscure;!or!
(b)!leads!to!a!result!which!is!manifestly!absurd!unreasonable.!

!
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.!!
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!nation's!marine!resources,!sea!
search8and8rescue!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.!

!
III.!WHAT!IS!AUTHORIZED!BY!VFA?!No'combat!''

Granted!that!"Balikatan!0281"!is!permitted!under!the!terms!of!the!VFA,!what!may!
US!forces!legitimately!do!in!furtherance!of!their!aim!to!provide!advice,!assistance!
and! training! in! the! global! effort! against! terrorism?! Differently! phrased,! may!
American! troops! actually! engage! in! combat! in! Philippine! territory?! The! Terms! of!
Reference!are!explicit!enough.!Paragraph'8'of'section'I!stipulates!that!US!exercise!
participants!may!not*engage!in!combat'"except*in*self?defense."#!

The!target!of!"Balikatan!0281!I"!the!Abu!Sayyaf,!cannot!reasonably!be!expected!to!
sit!idly!while!the!battle!is!brought!to!their!very!doorstep.!They!cannot!be!expected!
to!pick!and!choose!their!targets!for!they!will!not!have!the!luxury!of!doing!so.!!

The!indirect!violation!is!actually!petitioners'!worry,!that!in!reality,!"Balikatan!0281!"!
is!actually!a!war!principally!conducted!by!the!United!States!government,!and!that!
the!provision!on!self8defense!serves!only!as!camouflage!to!conceal!the!true!nature!
of!the!exercise.!A!clear!pronouncement!on!this!matter!thereby!becomes!crucial.!

Neither'the'MDT'nor'the'VFA'allow'foreign'troops'to'engage'in'an'offensive'war'
on' Philippine' territory.! We! bear! in! mind! the! salutary! proscription! stated! in! the!
Charter'of'the'United'Nations,!to!wit:!
!
Article!2!
The!Organization!and!its!Members,!in!pursuit!of!the!Purposes!stated!in!Article!1,!shall!act!
in!accordance!with!the!following!Principles.!
xxx!!!!!!xxx!!!!!!xxx!!!!!!xxx!
4.' All' Members' shall' refrain' in' their' international' relations' from' the' threat' or' use' of'
force' against' the' territorial' integrity' or' political' independence!of!any!state,!or!in!any!
other!manner!inconsistent!with!the!Purposes!of!the!United!Nations.!

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In! the! same! manner,! both' the' Mutual' Defense' Treaty' and' the' Visiting' Forces'
Agreement,' as' in' all' other' treaties' and' international' agreements' to' which' the'
Philippines'is'a'party,'must'be'read'in'the'context'of'the'1987'Constitution.!Thus,!
in!the!Declaration!of!Principles!and!State!Policies,!Article!II,!it!is!provided!that:!

xxx!!!!!!xxx!!!!!!xxx!!!!!!xxx!
SEC.! 2.! The! Philippines! renounces! war! as! an! instrument! of! national! policy,! adopts! the!
generally! accepted! principles! of! international! law! as! part! of! the! law! of! the! land! and!
adheres!to!the!policy!of!peace,!equality,!justice,!freedom,!cooperation,!and!amity!with!
all!nations.!
xxx!!!!!!xxx!!!!!!xxx!!!!!!xxx!
SEC.!7.!The!State!shall!pursue!an!independent!foreign!policy.!In!its!relations!with!other!
states! the! paramount! consideration! shall! be! national! sovereignty,! territorial! integrity,!
national!interest,!and!the!right!to!self8!determination.!
SEC.!8.!The!Philippines,!consistent!with!the!national!interest,!adopts!and!pursues!a!policy!
of!freedom!from!nuclear!weapons!in!the!country.!
xxx!!!!!!xxx!!!!!!xxx!!!!!!xxx!
!

'

given!a!standing!equal,!not!superior,!to!national!legislation.!
From!the!perspective!of!public!international!law,!a!treaty!is!favored!over!municipal!
law!pursuant!to!the!principle!of!pacta#sunt#servanda.#Hence,!"[e]very!treaty!in!force!
is! binding! upon! the! parties! to! it! and! must! be! performed! by! them! in! good! faith."!
Further,!a!party!to!a!treaty!is!not!allowed!to!"invoke!the!provisions!of!its!internal!
law!as!justification!for!its!failure!to!perform!a!treaty."!
Our!Constitution!espouses!the!opposing!view.!Witness!our!jurisdiction!as!I!stated!in!
section!5!of!Article!VIII:!

!
The!Supreme!Court!shall!have!the!following!powers:!
xxx!!!!!!xxx!!!!!!xxx!!!!!!xxx!
(2)! Review,! revise,! reverse,! modify,! or! affirm! on! appeal! or! certiorari,# as! the! law! or! the!
Rules!of!Court!may!provide,!final!judgments!and!order!of!lower!courts!in:!
(A)! All! cases! in! which! the! constitutionality# or# validity# of# any# treaty,# international# or#
executive# agreement,# law,! presidential# decree,! proclamation,! order,! instruction,!
ordinance,!or!regulation!is!in!question.!

The!Constitution!also!regulates!the!foreign!relations!powers!of!the!Chief!Executive!
when! it! provides! that! "[n]o! treaty! or! international! agreement! shall! be! valid! and!
effective! unless! concurred! in! by! at! least! two8thirds! of! all! the! members! of! the!
Senate."!Even!more!pointedly,!the!Transitory'Provisions'state:!

Sec.! 25.! 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.!

!
!

The! aforequoted! provisions! betray! a! marked! antipathy! towards! foreign! military!


presence! in! the! country,! or! of! foreign! influence! in! general.! Hence,! foreign! troops!
are!allowed!entry!into!the!Philippines!only!by!way!of!direct!exception.!!
A!rather!recent!formulation!of!the!relation!of!international!law!visKaKvis#municipal!
law!was!expressed!in!Philip*Morris,*Inc.*v.*Court*of'Appeals,!to!wit:!
o xxx!Withal,!the!fact!that!international!law!has!been!made!part!of!the!law!
of!the!land!does!not!by!any!means!imply!the!primacy!of!international!law!
over! national! law! in! the! municipal! sphere.! Under! the! doctrine! of!
incorporation!as!applied!in!most!countries,!rules!of!international!law!are!

In!Ichong*v.*Hernandez,#we!ruled!that!the!provisions'of'a'treaty'are'always'subject'
to' qualification' or' amendment' by' a' subsequent' law,' or' that' it' is' subject' to' the'
police'power'of'the'State.!!
In! Gonzales* v.* Hechanova,! the! Court! has! ruled! our! Constitution! authorizes! the!
nullification! of! a! treaty,! not! only! when! it! conflicts! with! the! fundamental! law,! but,#
also,#when#it#runs#counter#to#an#act#of#Congress.!
The! foregoing! premises! leave! us! no' doubt' that' US' forces' are' prohibited' /' from'
engaging'in'an'offensive'war'on'Philippine'territory.'
Yet'a'nagging'question'remains:'are'American'troops'actively'engaged'in'combat'
alongside' Filipino' soldiers' under' the' guise' of' an' alleged' training' and' assistance'
exercise?! Contrary! to! what! petitioners! would! have! us! do,! we! cannot! take! judicial!
notice! of! the! events! transpiring! down! south,! as! reported! from! the! saturation!
coverage! of! the! media.! As! a! rule,! we' do' not' take' cognizance' of' newspaper' or'
electronic'reports'per*se,*not'because'of'any'issue'as'to'their'truth,'accuracy,'or'
impartiality,' but' for' the' simple' reason' that' facts' must' be' established' in'
accordance'with'the'rules'of'evidence.!!
It!is!all!too!apparent!that!the!determination!thereof!involves!basically!a!question#of#
fact.# On! this! point,! we! must! concur! with! the! Solicitor! General! that! the! present!
subject!matter!is!not!a!fit!topic!for!a!special!civil!action!for!certiorari.#We!have!held!
in!too!many!instances!that!questions!of!fact!are!not!entertained!in!such!a!remedy.!
The! sole! object! of! the! writ! is! to! correct! errors! of! jurisdiction! or! grave! abuse! of!
discretion:! The! phrase! "grave! abuse! of! discretion"! has! a! precise! meaning! in! law,!

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denoting!abuse!of!discretion!"too!patent!and!gross!as!to!amount!to!an!evasion!of!a!
positive! duty,! or! a! virtual! refusal! to! perform! the! duty! enjoined! or! act! in!
contemplation!of!law,!or!where!the!power!is!exercised!in!an!arbitrary!and!despotic!
manner!by!reason!of!passion!and!personal!hostility."!
In!this!connection,!it!will!not!be!amiss!to!add!that!the!Supreme!Court!is!not!a!trier!
of!facts.!
From!the!facts!obtaining,!we!find!that!the!holding!of!"Balikatan!0281"!joint!military!
exercise!has!not!intruded!into!that!penumbra!of!error!that!would!otherwise!call!for!
correction! on! our! part.! In! other! words,! respondents! in! the! case! at! bar! have! not!
committed!grave!abuse!of!discretion!amounting!to!lack!or!excess!of!jurisdiction.!

'
WHEREFORE,! the! petition! and! the! petition8in8intervention! are! hereby! DISMISSED! without!
prejudice! to! the! filing! of! a! new! petition! sufficient! in! form! and! substance! in! the! proper!
Regional!Trial!Court.!
SO'ORDERED.!

!
THIS!IS!THE!VFA:!
I.!POLICY!LEVEL!
1.! The! Exercise! shall! be! consistent! with! the! Philippine! Constitution! and! all! its! activities! shall! be! in!
consonance!with!the!laws!of!the!land!and!the!provisions!of!the!RP8US!Visiting!Forces!Agreement!(VFA).!
2.!The!conduct!of!this!training!Exercise!is!in!accordance!with!pertinent!United!Nations!resolutions!against!
global!terrorism!as!understood!by!the!respective!parties.!
3.! No! permanent! US! basing! and! support! facilities! shall! be! established.! Temporary! structures! such! as!
those!for!troop!billeting,!classroom!instruction!and!messing!may!be!set!up!for!use!by!RP!and!US!Forces!
during!the!Exercise.!
4.!The!Exercise!shall!be!implemented!jointly!by!RP!and!US!Exercise!Co8Directors!under!the!authority!of!
the!Chief!of!Staff,!AFP.!In!no!instance!will!US!Forces!operate!independently!during!field!training!exercises!
(FTX).!AFP!and!US!Unit!Commanders!will!retain!command!over!their!respective!forces!under!the!overall!
authority!of!the!Exercise!Co8Directors.!RP!and!US!participants!shall!comply!with!operational!instructions!
of!the!AFP!during!the!FTX.!
5.!The!exercise!shall!be!conducted!and!completed!within!a!period!of!not!more!than!six!months,!with!the!
projected!participation!of!660!US!personnel!and!3,800!RP!Forces.!The!Chief!of!Staff,!AFP!shall!direct!the!
Exercise! Co8Directors! to! wind! up! and! terminate! the! Exercise! and! other! activities! within! the! six! month!
Exercise!period.!
6.! The! Exercise! is! a! mutual! counter8terrorism! advising,! assisting! and! training! Exercise! relative! to!
Philippine! efforts! against! the! ASG,! and! will! be! conducted! on! the! Island! of! Basilan.! Further! advising,!
assisting! and! training! exercises! shall! be! conducted! in! Malagutay! and! the! Zamboanga! area.! Related!
activities!in!Cebu!will!be!for!support!of!the!Exercise.!
7.! Only! 160! US! Forces! organized! in! 128man! Special! Forces! Teams! shall! be! deployed! with! AFP! field,!
commanders.!The!US!teams!shall!remain!at!the!Battalion!Headquarters!and,!when!approved,!Company!
Tactical!headquarters!where!they!can!observe!and!assess!the!performance!of!the!AFP!Forces.!
8.!US!exercise!participants!shall!not!engage!in!combat,!without!prejudice!to!their!right!of!self8defense.!
9.! These! terms! of! Reference! are! for! purposes! of! this! Exercise! only! and! do! not! create! additional! legal!

'

obligations!between!the!US!Government!and!the!Republic!of!the!Philippines.!
!
II.!EXERCISE!LEVEL!
1.!TRAINING!
a.!The!Exercise!shall!involve!the!conduct!of!mutual!military!assisting,!advising!and!training!of!RP!and!US!
Forces! with! the! primary! objective! of! enhancing! the! operational! capabilities! of! both! forces! to! combat!
terrorism.!
b.!At!no!time!shall!US!Forces!operate!independently!within!RP!territory.!
c.!Flight!plans!of!all!aircraft!involved!in!the!exercise!will!comply!with!the!local!air!traffic!regulations.!
2.!ADMINISTRATION!&!LOGISTICS!
a.! RP! and! US! participants! shall! be! given! a! country! and! area! briefing! at! the! start! of! the! Exercise.! This!
briefing!shall!acquaint!US!Forces!on!the!culture!and!sensitivities!of!the!Filipinos!and!the!provisions!of!the!
VF!A.!The!briefing!shall!also!promote!the!full!cooperation!on!the!part!of!the!RP!and!US!participants!for!
the!successful!conduct!of!the!Exercise.!
b.!RP!and!US!participating!forces!may!share,!in!accordance!with!their!respective!laws!and!regulations,!in!
the!use!of!their!resources,!equipment!and!other!assets.!They!will!use!their!respective!logistics!channels.!
c.!Medical!evaluation!shall!be!jointly!planned!and!executed!utilizing!RP!and!US!assets!and!resources.!
d.!Legal!liaison!officers!from!each!respective!party!shall!be!appointed!by!the!Exercise!Directors.!
3.!PUBLIC!AFFAIRS!
a.!Combined!RP8US!Information!Bureaus!shall!be!established!at!the!Exercise!Directorate!in!Zamboanga!
City!and!at!GHQ,!AFP!in!Camp!Aguinaldo,!Quezon!City.!
b.! Local! media! relations! will! be! the! concern! of! the! AFP! and! all! public! affairs! guidelines! shall! be! jointly!
developed!by!RP!and!US!Forces.!
c.! Socio8Economic! Assistance! Projects! shall! be! planned! and! executed! jointly! by! RP! and! US! Forces! in!
accordance! with! their! respective! laws! and! regulations,! and! in! consultation! with! community! and! local!
government!officials.!
Contemporaneously,!Assistant!Secretary!for!American!Affairs!Minerva!Jean!A.!Falcon!and!United!States!
Charge#d'#Affaires#Robert!Fitts!signed!the!Agreed!Minutes!of!the!discussion!between!the!Vice8President!
4
and!Assistant!Secretary!Kelly. !

3. Pimentel'v.'Executive'Secretary'(JG)'
TOPIC:!Treaty!Ratification;!the!power!to!ratify!a!treaty!is!vested!in!the!President,!subject!to!
the!concurrence!of!the!Senate!
!
Treaties/Laws:'

Rome!Statute!

Section!21,!Article!VII!of!the!1987!Constitution!

Executive! Order! No.! 459! ! Guidelines! in! the! Negotiation! of! International!
Agreements!and!Its!Ratification!
!
G.R.!No.:!158088!
!

8!

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Petitioners:! Senator! Aquilino! Pimentel,! Jr.,! Rep.! Etta! Rosales,! Philippine! Coalition! For! The!
Establishment! Of! The! International!Criminal! Court,! Task! Force! Detainees! Of! The!
Philippines,!Families! Of! Victims! Of! Involuntary! Disappearances,! Bianca! Hacintha! R.! Roque,!
Harrison! Jacob! R.! Roque,!Ahmed! Paglinawan,! Ron! P.! Salo,!! Leavides! G.! Domingo,!
Edgardo!Carlo!Vistan,!Noel!Villaroman,!Celeste!Cembrano,!Liza!Abiera,!Jaime!Arroyo,!Marwil!
Llasos,!!Cristina!Atendido,!Israfel!Fagela,!And!Romel!Bagares,!!!!
!
Respondents:! Office! Of! The! Executive! Secretary,! represented! by! Hon.! Alberto! Romulo,! and!
the!Department!Of!Foreign!Affairs,!represented!by!Hon.!Blas!Ople!!
July!6,!2005!
Ponente:!Puno,!J.!!
FACTS:'

The!Rome' Statute!established!the!International!Criminal!Court,!which!shall!have!
the! power! to! exercise! its! jurisdiction! over! persons! for! the! most! serious! crimes! of!
international! concern! xxx! and! shall! be! complementary! to! the! national! criminal!
jurisdictions.!!
o Its! jurisdiction! covers! the! crime! of! genocide,! crimes! against! humanity,!
war!crimes!and!the!crime!of!aggression!as!defined!in!the!Statute.!!
o The! Statute! was! opened! for! signature! by! all! states! in! Rome! on! July! 17,!
1998! and! had! remained! open! for! signature! until! December! 31,! 2000! at!
the!United!Nations!Headquarters!in!New!York.!!
o The!Philippines!signed!the!Statute!on!December!28,!2000!through!Charge#
d# Affairs!Enrique! A.! Manalo! of! the! Philippine! Mission! to! the! United!
Nations.!!
o Its! provisions,! however,! require! that! it! be! subject! to! ratification,!
acceptance!or!approval!of!the!signatory!states.!

Petitioners!filed!a!petition!for!mandamus!to!compel!the!respondents!!the!Office!
of!the!Executive!Secretary!and!the!Department!of!Foreign!Affairs!!to!transmit'the'
signed' text' of' the' treaty' to' the' Senate! of! the! Philippines! for! ratification! for! its!
concurrence!in!accordance!with!Sec.!21,!Art.!VII!of!the!1987!Philippine!Constitution.!
o Section!21,!Article!VII!of!the!1987!Constitution!provides!that!no!treaty!or!
international! agreement! shall! be! valid! and! effective! unless! concurred! in!
by!at!least!two8thirds!of!all!the!Members!of!the!Senate.!!The!1935!and!
the!1973!Constitution!also!required!the!concurrence!by!the!legislature!to!
the!treaties!entered!into!by!the!executive.!

Petitioners!contention:!(not!accepted!by!the!SC)!
o The! ratification! of! a! treaty,! under! both! domestic! law! and! international!
law,!is!a!function!of!the!Senate.!!!

'

Hence,! it! is! the! duty! of! the! executive! department! to! transmit!
the!signed!copy!of!the!Rome!Statute!to!the!Senate!to!allow!it!to!
exercise!its!discretion!with!respect!to!ratification!of!treaties.!!!
o The! Philippines! has! a! ministerial! duty! to! ratify! the! Rome! Statute! under!
treaty!law!and!customary!international!law.!!!
o Petitioners! invoke! the! Vienna! Convention! on! the! Law! of! Treaties!
enjoining! the! states! to! refrain! from! acts! which! would! defeat! the! object!
and! purpose! of! a! treaty! when! they! have! signed! the! treaty! prior! to!
ratification! unless! they! have! made! their! intention! clear! not! to! become!
parties!to!the!treaty.!
Respondents!contention:!
o The! executive! department! has! no! duty! to! transmit! the! Rome! Statute! to!
the!Senate!for!concurrence.!!

!
ISSUES/HELD:'
Whether! the! Executive! Secretary! and! the! Department! of! Foreign! Affairs! have!
a!ministerial!duty! to! transmit! to! the! Senate! the! copy! of! the! Rome! Statute! signed! by! a!
member! of! the! Philippine! Mission! to! the! United! Nations! even! without! the! signature! of! the!
President!!NO!

In! our! system! of! government,! the! President,! being! the! head! of! state,! is! the!
countrys!sole!representative!with!foreign!nations.!!As!the!chief!architect!of!foreign!
policy,!the!President!acts!as!the!countrys!mouthpiece!with!respect!to!international!
affairs.!!Hence,!the!President!is!vested!with!the!authority!to!deal!with!foreign!states!
and! governments,! extend! or! withhold! recognition,! maintain! diplomatic! relations,!
enter!into!treaties,!and!otherwise!transact!the!business!of!foreign!relations.!!In!the!
realm! of! treaty8making,! the! President! has! the! sole! authority! to! negotiate! with!
other!states.!

Nonetheless,! the! Constitution! provides! a! limitation! to! the! Presidents! power! by!
requiring!the!concurrence!of!2/3!of!all!the!members!of!the!Senate!for!the!validity!
of!the!treaty!entered!into!by!him.!
o By!requiring!the!concurrence!of!the!legislature!in!the!treaties!entered!into!by!
the! President,! the! Constitution! ensures! a! healthy! system! of! checks! and!
balance!necessary!in!the!nations!pursuit!of!political!maturity!and!growth.!

The! court! described! the! treaty8making! process,! according! to! Justice! Isagani! Cruz!
book!on!International!Law!
o The! usual! steps! in! the! treaty8making! process! are:!! negotiation,!
signature,! ratification,! and! exchange! of! the! instruments! of!
ratification.!

Petitioners! equate! the! signing! of! the! treaty! by! the! Philippine! representative! with!
ratification,!which!are!two!separate!and!distinct!steps!in!the!treaty8making!process.!

9!

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Sources'of'International'Law:'Treaties'

The!signature,!performed!by!the!states!authorized!representative!in!the!diplomatic!
mission,!is!primarily!intended!as!a!means!of!authenticating!the!instrument!and!as!a!
symbol! of! the! good! faith! of! the! parties.!! Ratification,! on! the! other! hand,! is! the!
formal! act! executive! in! nature,! undertaken! by! the! head! of! the! state! or! of! the!
government.!
Thus,!the!President'has'the'discretion'even'after'the'signing'of'the'treaty'by'the'
Philippine' representative' whether' or' not' to' ratify' the' same.! The! Vienna!
Convention!on!the!Law!of!Treaties!does!not!contemplate!to!defeat!or!even!restrain!
this!power!of!the!head!of!states.!!If!that!were!so,!the!requirement!of!ratification!of!
treaties!would!be!pointless!and!futile.!
Executive' Order' No.' 459' provides' the' guidelines' in' the' negotiation' of'
international' agreements' and' its' ratification.'' It' mandates' that' after' the' treaty'
has'been'signed'by'the'Philippine'representative,'the'same'shall'be'transmitted'
to' the'Department' of' Foreign' Affairs.'' The' latter' shall' then' prepare' the'
ratification'papers'and'forward'the'signed'copy'of'the'treaty'to'the'President'for'
ratification.''
o Section!7!of!Executive!Order!No.!459!reads:!
Sec.! 7.!! Domestic! Requirements! for! the! Entry! into! Force! of! a!
Treaty! or! an! Executive! Agreement.! !The! domestic!
requirements!for!the!entry!into!force!of!a!treaty!or!an!executive!
agreement,!or!any!amendment!thereto,!shall!be!as!follows:!
!A.!!!!!!Executive!Agreements.!
!!!!!!!!!! i.!!!!!!!! All! executive! agreements! shall! be!
transmitted!to!the!Department!of!Foreign!Affairs!after!
their! signing! for! the! preparation! of! the! ratification!
papers.!!The!transmittal!shall!include!the!highlights!of!
the!agreements!and!the!benefits!which!will!accrue!to!
the!Philippines!arising!from!them.!
!!
!!!!!!!!!! ii.!!!!!!! The! Department! of! Foreign! Affairs,!
pursuant! to! the! endorsement! by! the! concerned!
agency,! shall! transmit! the! agreements! to! the!
President! of! the! Philippines! for! his! ratification.!! The!
original!signed!instrument!of!ratification!shall!then!be!
returned! to! the! Department! of! Foreign! Affairs! for!
appropriate!action.!
B.!!!!!!Treaties.!
!!!!!!!!!!i.!!!!!!!!All!treaties,!regardless!of!their!designation,!
shall! comply! with! the! requirements! provided! in! sub8
paragraph[s]! 1! and! 2,! item! A! (Executive! Agreements)!

of! this! Section.!! In! addition,! the! Department! of!


Foreign!Affairs!shall!submit!the!treaties!to!the!Senate!
of! the! Philippines! for! concurrence! in! the! ratification!
by!the!President.!!A!certified!true!copy!of!the!treaties,!
in! such! numbers! as! may! be! required! by! the! Senate,!
together! with! a! certified! true! copy! of! the! ratification!
instrument,! shall! accompany! the! submission! of! the!
treaties!to!the!Senate.!
!!!!!!!!!! ii.!!!!!!! Upon! receipt! of! the! concurrence! by! the!
Senate,! the! Department! of! Foreign! Affairs! shall!
comply! with! the! provision! of! the! treaties! in! effecting!
their!entry!into!force.!

'

!
The!signature!does!not!signify!the!final!consent!of!the!state!to!the!treaty.!!It!is!the!
ratification!that!binds!the!state!to!the!provisions!thereof.!!Under'our'Constitution,'
the'power'to'ratify'is'vested'in'the'President,'subject'to'the'concurrence'of'the'
Senate.'!The!role!of!the!Senate,!however,!is!limited!only!to!giving!or!withholding!its!
consent,!or!concurrence,!to!the!ratification.!Such!power!of!the!President!cannot!be!
encroached! by! this! Court!via!a! writ! of!mandamus! and! the! courts! have! no!
jurisdiction!over!actions!seeking!to!enjoin!the!President!in!the!performance!of!his!
official!duties.!!
Therefore,! the! court! cannot! issue! the! writ! of!mandamus!prayed! for! by! the!
petitioners! as! it! is! beyond! its! jurisdiction! to! compel! the! executive! branch! of! the!
government!to!transmit!the!signed!text!of!Rome!Statute!to!the!Senate.!

!
DISPOSITIVE:!Petition!is!dismissed.!
!

4. Sps.'Constantino'v.'Hon.'Rosario'(CG)'
G.R.'No.'106064'October'13,'2005!
TOPIC:'Powers!of!the!President!to!enter!into!debt8relief!contracts!with!foreign!creditors;!
Qualified!Political!Agency!
RELEVANT'LAWS:'Article!7,!Section!20!of!the!Constitution;!R.A.!No.!245!as!amended!by!Pres.!
Decree!(P.D.)!No.!142,!s.!1973,!entitled!An#Act#Authorizing#the#Secretary#of#Finance#to#Borrow#
to#Meet#Public#Expenditures#Authorized#by#Law,#and#for#Other#Purposes!
Petitioners:!Spouses!Renato!Constantino,!Jr.!and!Lourdes!Constantino!and!their!minor!
children!Renato!Redentor,!Anna!Marika!Lissa,!Nina!Elissa,!and!Anna!Karmina,!Freedom!From!
Debt!Coalition,!and!Filomeno!Sta.!Ana!III!
!
Respondents:!Hon.!Jose!B.!Cuisia,!in!his!capacity!as!Governor!of!the!Central!Bank,!Hon.!

10!

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Sources'of'International'Law:'Treaties'

Ramon!del!Rosario,!in!his!capacity!as!Secretary!of!Finance,!Hon.!Emmanuel!V.!Pelaez,!in!his!
capacity!as!Philippine!Debt!Negotiating!Chairman,!and!the!NATIONAL!TREASURER!
Ponente:!Tinga,!J.!

This!Petition#for#Certiorari,#Prohibition#and#Mandamus!assails!said!contracts!which!
were!entered!into!pursuant!to!the!Philippine!Comprehensive!Financing!Program!for!
1992!(Financing!Program)!

It!seeks!to!enjoin!respondents!from!executing!additional!debt8relief!contracts!
pursuant!thereto!and!also!urges!the!Court!to!issue!an!order!compelling!the!
Secretary!of!Justice!to!institute!criminal!and!administrative!cases!against!
respondents'for!acts,!which!circumvent!or!negate!the!provisions!Art.!XII!of!the!
Constitution!
Facts'

The!Financing!Program!began!during!the!term!of!former!President!Corazon!Aquino!
to!manage!the!countrys!external!debt!problem!through!a!negotiation8oriented!
debt!strategy!involving!cooperation!and!negotiation!with!foreign!creditors!

Pursuant!to!this!strategy,!the!Aquino!government!entered!into!six!(6)!restructuring!
agreements!(198681991):!3!with!representatives!of!foreign!creditor!governments,!
and!another!3!with!commercial!bank!creditors!

On!28!February!1992,!the!Philippine!Debt!Negotiating!Team,!chaired!by!respondent!
Pelaez,!negotiated!an!agreement!with!the!countrys!Bank!Advisory!Committee,!
representing!all!foreign!commercial!bank!creditors,!on!the!Financing!Program,!
which!respondents!characterized!as!"a!multi8option!financing!package.!

The!Program!was!scheduled!to!be!executed!on!24!July!1992!by!respondents!in!
behalf!of!the!Republic.!!

Petitioners!alleged!that!even'prior'to'the'execution'of'the'Program'respondents'
had'already'implemented'its'"buyback'component"!when!on!15!May!1992,!the!
Philippines!bought!back!P1.26!billion!of!external!debts!pursuant!to!the!Program!

The!petition'sought'to'enjoin'the'ratification'of'the'Program,!but!the!Court!did!
not!issue!any!injunctive!relief.!Hence,!it!came!to!pass!that!the!Program!was!signed!
in!London!as!scheduled.!

The!petition'still'has'to'be'resolved'though'as'petitioners'seek'the'annulment'"of'
any'and'all'acts'done'by'respondents,!their!subordinates!and!any!other!public!
officer!pursuant!to!the!agreement!and!program!in!question.!Even'after'the'
signing'of'the'Program,'respondents'themselves'acknowledged'that'the'
remaining'principal'objective'of'the'petition'is'to'set'aside'respondents'actions.'

Petitioners!characterize!the!Financing!Program!as!a!package!offered!to!the!
countrys!foreign!creditors!consisting!of!two!debt8relief!options:!!
o The!first!option!was!a!cash!buyback!of!portions!of!the!Philippine!foreign!
debt!at!a!discount.!!

'

The!second!option!allowed!creditors!to!convert!existing!Philippine!debt!
instruments!into!any!of!three!kinds!of!bonds/securities!(New!money!
bonds!w/!58yr!grace!period!and!178yr!maturity,!Interest8reduction!bonds!
w/!258yr!maturity!or!Principal8collateralized!interest8reduction!bonds!
with!258yr!maturity)!

According!to!the!respondents!the!Financing!Program!would!cover!about!U.S.!$5.3!
billion!of!foreign!commercial!debts!and!it!was!expected!to!deal!comprehensively!
with!the!commercial!bank!debt!problem!of!the!country!and!pave!the!way!for!the!
countrys!access!to!capital!markets.!

They!add!that!the!Program!carried!three!basic!options!from!which!foreign!bank!
lenders!could!choose,!namely:!to!lend!money,!to!exchange!existing!restructured!
Philippine!debts!with!an!interest!reduction!bond;!or!to!exchange!the!same!
Philippine!debts!with!a!principal!collateralized!interest!reduction!bond.!
Issues/Ruling'
'(1)'WON'the'debtdrelief'contracts'entered'into'pursuant'to'the'Financing'Programs'was'
beyond'the'scope'of'the'powers'granted'to'the'President'under'Section'20,'Article'VII'of'
the'Constitution''NO,'the'Constitution'does'not'prohibit'the'President'from'so'doing,'and'
it'is'in'RA'245'

The!language!of!the!Constitution!is!simple!and!clear!as!it!is!broad.!It'allows'the'
President'to'contract'and'guarantee'foreign'loans.'It!makes!no!prohibition!on!the!
issuance!of!certain!kinds!of!loans!or!distinctions!as!to!which!kinds!of!debt!
instruments!are!more!onerous!than!others.''

The!plain,!clear!and!unambiguous!language!of!the!Constitution!should!be!construed!
in!a!sense!that!will!allow!the!full!exercise!of!the!power!provided!therein!

The!only!restriction!that!the!Constitution!provides,!aside!from!the!prior!
concurrence!of!the!Monetary!Board,!is!that!the!loans'must'be!subject'to'
limitations'provided'by'law.''

In!this!regard,!we!note!that!Republic'Act'(R.A.)'No.'245!as!amended!by!Pres.!
Decree!(P.D.)!No.!142,!s.!1973,!entitled!An#Act#Authorizing#the#Secretary#of#Finance#
to#Borrow#to#Meet#Public#Expenditures#Authorized#by#Law,#and#for#Other#
Purposes,#allows!foreign!loans!to!be!contracted!in!the!form!of,!inter#alia,!bonds.!
Thus:!
!The!Secretary!of!Finance,!with!the!approval!of!the!President!
of!the!Philippines,!after!consultation!with!the!Monetary!Board,!is!
authorized!to!borrow!from!time!to!time!on!the!credit!of!the!Republic!of!
the!Philippines!such!sum!or!sums!as!in!his!judgment!may!be!necessary,!
and!to!issue!therefor!evidences!of!indebtedness!of!the!Philippine!
Government.!
Such#evidences#of#indebtedness#may#be#of#the#following#types:#
#
#
xxx#
o

11!

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Sources'of'International'Law:'Treaties'

c.#Treasury#bonds,#notes,#securities#or#other#evidences#of#indebtedness#
having#maturities#of#one#year#or#more#but#not#exceeding#twentyKfive#years#
from#the#date#of#issue.#(Emphasis#supplied.)#
Under!the!foregoing!provisions,!sovereign'bonds'may'be'issued'not'only'to'
supplement'government'expenditures'but'also'to'provide'for'the'purchase,'
redemption,'or'refunding'of'any'obligation,'either'direct'or'guaranteed,'of'the'
Philippine'Government.!
The!law8making!authority!has!promulgated!a!law!ordaining!an!automatic!
appropriations!provision!for!debt!servicing!by!virtue!of!which!the!President'is'
empowered'to'execute'debt'payments'without'the'need'for'further'
appropriations.''
Debt!service!is!not!included!in!the!General!Appropriation!Act,!since!authorization!
therefor!already!exists!under!RA!Nos.!4860!and!245,!as!amended,!and!PD!1967.!'
Precisely!in!the!light!of!this!subsisting!authorization!as!embodied!in!said!Republic!
Acts!and!PD!for!debt!service,!Congress'does'not'concern'itself'with'details'for'
implementation'by'the'Executive,'but'largely'with'annual'levels'and'approval'
thereof'upon'due'deliberations'as'part'of'the'whole'obligation'program'for'the'
year.!!
Specific!legal!authority!for!the!buyback!of!loans!is!established!under!Section!2!of!
Republic!Act!(R.A.)!No.!240,!viz:!
Sec.#2.#The#Secretary#of#Finance#shall#cause#to#be#paid#out#of#any#moneys#
in#the#National#Treasury#not#otherwise#appropriated,#or#from#any#sinking#
funds#provided#for#the#purpose#by#law,#any#interest#falling#due,#or#
accruing,#on#any#portion#of#the#public#debt#authorized#by#law.#He#shall#
also#cause#to#be#paid#out#of#any#such#money,#or#from#any#such#sinking#
funds#the#principal#amount#of#any#obligations#which#have#matured,#xxx#or,#
if#redeemed#prior#to#maturity,#such#portion#of#the#face#value#as#is#
prescribed#by#the#terms#and#conditions#under#which#such#obligations#were#
originally#issued.#
The!afore8quoted!provisions!of!law!specifically'allow'the'President,'thru'its'alter'
ego,'to'predterminate'debts'without'further'action'from'Congress!
The!fact!that!the!Constitution!does!not!explicitly!bar!the!President!from!exercising!
a!power!does!not!mean!that!he!or!she!does!not!have!that!power!
It!is!inescapable!from!the!standpoint!of!reason!and!necessity!that!the'authority'to'
contract'foreign'loans'and'guarantees'without'restrictions'on'payment'or'
manner'thereof'coupled'with'the'availability'of'the'corresponding'
appropriations,'must'include'the'power'to'effect'payments'or'to'make'payments'
unavailing'by'either'restructuring'the'loans'or'even'refusing'to'make'any'
payment'altogether.'

'

More!fundamentally,!when!taken!in!the!context!of!sovereign!debts,!a!buyback!is!
simply!the!purchase!by!the!sovereign!issuer!of!its!own!debts!at!a!discount.!Clearly!
then,!the!objection!to!the!validity!of!the!buyback!scheme!is!without!basis'
(2)'WON'this'power'can'be'delegated'd'YES,'it'is'within'the'realm'of'the'expertise'of'the'
Department'of'Finance;'Doctrine'of'Qualified'Political'Agency;'Lack'of'showing'that'the'
President'countermanded'DOFs'orders,'deemed'presidential'approval'

Petitioners!stress!that!unlike!other!powers,!which!may!be!validly!delegated!by!the!
President,!the!power!to!incur!foreign!debts!is!expressly!reserved!by!the!
Constitution!in!the!person!of!the!President.!They!argue!that!the!gravity!by!which!
the!exercise!of!the!power!will!affect!the!Filipino!nation!requires!that!the!President!
alone!must!exercise!this!power.!They!submit!that!the!requirement!of!prior!
concurrence!of!an!entity!specifically!named!by!the!Constitution!!the!Monetary!
Board!!reinforces!the!submission!that!not!respondents!but!the!President!"alone!
and!personally"!can!validly!bind!the!country.'

This!sort!of!constitutional!interpretation!would!negate!the!very!existence!of!
cabinet!positions!and!the!respective!expertise,!which!the!holders!thereof!are!
accorded!and!would!unduly!hamper!the!Presidents!effectivity!in!running!the!
government.!

The!evident!exigency!of!having!the!Secretary!of!Finance!implement!the!decision!of!
the!President!to!execute!the!debt8relief!contracts!is!made'manifest'by'the'fact'that'
the'process'of'establishing'and'executing'a'strategy'for'managing'the'
governments'debt'is'deep'within'the'realm'of'the'expertise'of'the'Department'
of'Finance,!primed!as!it!is!to!raise!the!required!amount!of!funding,!achieve!its!risk!
and!cost!objectives,!and!meet!any!other!sovereign!debt!management!goals.!!

Necessity'thus'gave'birth'to'the'doctrine'of'qualified'political'agency,!later!
adopted!in!Villena#v.#Secretary#of#the#Interior!from!American!jurisprudence!

Inevitably,!it!fell!upon!the!Secretary!of!Finance,!as!the!alter#ego!of!the!President!
regarding!"the!sound!and!efficient!management!of!the!financial!resources!of!the!
Government,"!to!formulate!a!scheme!for!the!implementation!of!the!policy!publicly!
expressed!by!the!President!herself.!

The!decision'to'contract'or'guarantee'foreign'debts'is'of'vital'public'interest,!but!
only!akin!to!any!contractual!obligation!undertaken!by!the!sovereign,!which!arises!
not!from!any!extraordinary!incident,!but!from!the!established!functions!of!
governance.!

The!Secretary'of'Finance'or'any'designated'alter*ego'of'the'President'is'bound'to'
secure'the'latters'prior'consent'to'or'subsequent'ratification'of'his'acts.!In!the!
matter!of!contracting!or!guaranteeing!foreign!loans,!the!repudiation'by'the'
President'of'the'very'acts'performed'in'this'regard'by'the'alter*ego'will'definitely'
have'binding'effect.!!

12!

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Sources'of'International'Law:'Treaties'

Notably!though,!petitioners!do!not!assert!that!respondents!pursued!the!Program!
without!prior!authorization!of!the!President!or!that!the!terms!of!the!contract!were!
agreed!upon!without!the!Presidents!authorization.!Congruent!with!the!avowed!
preference!of!then!President!Aquino!to!honor!and!restructure!existing!foreign!
debts,!the'lack'of'showing'that'she'countermanded'the'acts'of'respondents'leads'
us'to'conclude'that'said'acts'carried'presidential'approval.!

It!bears!emphasis!that!apart!from!the!Constitution,!there!is!also!a!relevant!statute,!
R.A.'No.'245,'that'establishes'the'parameters'by'which'the'alter*ego'may'act'in'
behalf'of'the'President'with'respect'to'the'borrowing'power.!This!law!expressly'
provides'that'the'Secretary'of'Finance'may'enter'into'foreign'borrowing'
contracts.!This!law!neither!amends!nor!goes!contrary!to!the!Constitution!but!
merely!implements!the!subject!provision!in!a!manner!consistent!with!the!structure!
of!the!Executive!Department!and!the!alter#ego#doctine.!!
(3)'WON'the'Financing'Program'violates'several'constitutional'policies'and'the'contracts'
executed'or'to'be'executed'pursuant'thereto'were'or'will'be'done'by'respondents'with'
grave'abuse'of'discretion'amounting'to'lack'or'excess'of'jurisdiction'd'NO'

Petitioners!allege!that!the!Financing!Program!violates!the!constitutional!state!
policies!to!promote!a!social!order!thus,!the!contracts!executed!or!to!be!executed!
pursuant!thereto!were!or!would!be!tainted!by!a!grave!abuse!of!discretion!
amounting!to!lack!or!excess!of!jurisdiction.!

Respondents!cite!the!following!in!support!of!the!propriety!of!their!acts:!!
(1)!A!Department!of!Finance!study!showing!that!as!a!result!of!the!implementation!
of!voluntary!debt!reductions!schemes,!the!countrys'debt'stock'was'reduced'by'
U.S.'$4.4'billion'as'of'December'1991;!
(2)!Revelations'made'by'independent'individuals!made!in!a!hearing!before!the!
Senate!Committee!on!Economic!Affairs!indicating!that!the!assailed!agreements!
would!bring!about!substantial!benefits!to!the!country;!and!!
(3)!The'Joint'LegislativedExecutive'Foreign'Debt'Councils'endorsement'of'the'
approval'of'the'financing'package!containing!the!debt8relief!agreements!and!
issuance!of!a!Motion!to!Urge!the!Philippine!Debt!Negotiating!Panel!to!continue!
with!the!negotiation!on!the!aforesaid!package.!!

Even!with!these!justifications,!respondents!aver!that!their!acts!are!within!the!arena!
of!political!questions,!which!the!judiciary'must'leave'without'interference'lest'the'
courts'substitute'their'judgment'for'that'of'the'official'concerned'and'decide'a'
matter'which'by'its'nature'or'law'is'for'the'latter'alone'to'decide.''

Assuming!the!accuracy!of!the!article!written!by!Jude!Esguerra!(which!the!
petitioners!used!to!support!their!claim)!regarding!the!Buyback!and!Securitization!
Agreement!that,!at!the!worst8case!scenario,!it!will!yield!a!$1.638M!flow!out!of!the!
country,!the!court!can!make!no!conclusion!other!than!that!respondents!efforts!
were!geared!towards!debt8relief!with!marked!positive!results!and!towards!

achieving!the!constitutional!policies!which!petitioners!so!hastily!declare!as!having!
been!violated!by!respondents.!!

Moreover,!the!policies!set!by!the!Constitution!as!litanized!by!petitioners!are!not!a!
panacea!that!can!annul!every!governmental!act!sought!to!be!struck!down.!!
(4)'WON'petitioners'had'locus*standi**YES,'as'citizens'of'the'Philippines'and'as'taxpayers.'
Also,'as'this'issue'is'of'paramount'public'interest,'it'is'but'just'for'the'court'to'take'
cognizance'of'the'case.'
Conclusion'

The!raison#d#etre#of!the!Financing!Program!is!to!manage!debts!incurred!by!the!
Philippines!in!a!manner!that!will!lessen!the!burden!on!the!Filipino!taxpayersthus!
the!term!"debt8relief!agreements."!The!measures!objected!to!by!petitioners!were!
not!aimed!at!incurring!more!debts!but!at!terminating!pre8existing!debts!and!were!
backed!by!the!know8how!of!the!countrys!economic!managers!as!affirmed!by!third!
party!empirical!analysis.!

That!the!means!employed!to!achieve!the!goal!of!debt8relief!do!not!sit!well!with!
petitioners!is!beyond!the!power!of!this!Court!to!remedy.!!

The!exercise!of!the!power!of!judicial!review!is!merely!to!checknot!supplantthe!
Executive,!or!to!simply!ascertain!whether!he!has!gone!beyond!the!constitutional!
limits!of!his!jurisdiction!but!not!to!exercise!the!power!vested!in!him!or!to!
determine!the!wisdom!of!his!act.!!

In!cases!where!the!main!purpose!is!to!nullify!governmental!acts!whether!as!
unconstitutional!or!done!with!grave!abuse!of!discretion,!there!is!a!strong!
presumption!in!favor!of!the!validity!of!the!assailed!acts.!The!heavy!onus!is!in!on!
petitioners!to!overcome!the!presumption!of!regularity.!
Dispositive*Portion:*
WHEREFORE!the!petition!is!hereby!DISMISSED.!No!costs.!

'

5. Abaya'v.'Ebdane'(RL)'
TOPIC:!Exchange#Notes#are#executive#agreements#and#are#binding#among#the#states.!
TREATIES/LAWS:'

EO' 40' ' Consolidating! Procurement! Rules! and! Procedures! for! All! National!
Government! Agencies,! GOCCs! and! Government! Financial! Institutions,! and!
Requiring!the!Use!of!the!Government!Procurement!System'

RA' 9184' ' An! Act! for! the! Modernization,! Standardization! and! Regulation! of! the!
Procurement!Activities!of!the!Government!and!for!Other!Purposes!

Exchange'of'Notes'!this!constitutes!an!executive!agreement!
!
G.R.'No.'167919.'February'14,'2007.'

13!

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Sources'of'International'Law:'Treaties'

Petitioners:!PLARIDEL!M.!ABAYA,!COMMODORE!PLARIDEL!C.!GARCIA!(retired)!and!PMA!59!
FOUNDATION,!INC.,!rep.!by!its!President,!COMMODORE!CARLOS!L.!AGUSTIN!(retired)!
Respondents:!HON.!SECRETARY!HERMOGENES!E.!EBDANE,!JR.,!in!his!capacity!as!Secretary!of!
the!DEPARTMENT!OF!PUBLIC!WORKS!and!HIGHWAYS,!HON.!SECRETARY!EMILIA!T.!BONCODIN,!
in! her! capacity! as! Secretary! of! the! DEPARTMENT! OF! BUDGET! and! MANAGEMENT,! HON.!
SECRETARY!CESAR!V.!PURISIMA,!in!his!capacity!as!Secretary!of!the!DEPARTMENT!OF!FINANCE,!
HON.!TREASURER!NORMA!L.!LASALA,!in!her!capacity!as!Treasurer!of!the!Bureau!of!Treasury,!
and!CHINA!ROAD!and!BRIDGE!CORPORATION!
Ponente:'Callejo,'Sr.,'J.'
FACTS:'

The! Government! of! Japan! and! the! Government! of! the! Philippines,! through! their!
respective! representatives,! Mr.! Yoshihisa! Ara,! Ambassador! Extraordinary! and!
Plenipotentiary! of! Japan! to! the! Republic! of! the! Philippines,! and! then! Secretary! of!
Foreign!Affairs!Domingo!L.!Siazon,!reached!an!understanding!concerning!Japanese!
loans!to!be!extended!to!the!Philippines.!!

These! loans! were! aimed! at! promoting! our! countrys! economic! stabilization! and!
development!efforts.!

The!Exchange!of!Notes!consisted!of!two!documents:!!
o A! Letter! from! the! Government! of! Japan,! signed! byAra,! addressed! to!
Siazon,! confirming! the! understanding! reached! between! the! two!
governments!concerning!the!loans!to!be!extended!by!the!Government!of!
Japan!to!the!Philippines;!and!
o A! document! denominated! as! Records! of! Discussion! where! the! salient!
terms!of!the!loans!were!reiterated!and!the!said!terms!were!accepted!by!
the!Philippine!delegation.!!
o Both!of!them!signed!the!Records!of!Discussion!as!representatives!of!their!
Governments.!

The!Exchange!of!Notes!provided!that!the!loans!to!be!extended!by!the!Japan!to!the!
Philippines!consisted!of!two!loans:!Loan!I!and!Loan!II.!!

The!Exchange!of!Notes!stated!in!part:!
o A! loan! worth! Y79,861,000,000! (Loan! I)! will! be! extended,! in! accordance!
with!the!relevant!laws!and!regulations!of!Japan!to!the!Philippines!by!the!
Japan! Bank! for! International! Cooperation! (JBIC)! to! implement! the!
projects!enumerated!in!the!List!A,!which!included!the!Arterial'Road'Links'
Development' Project,! Cordillera! Road! Project,! Philippines8Japan!
Friendship!Highway!Mindanao!Section!Rehabilitation!Project,!etc.!
o The! Loan! I! will! be! made! available! by! loan! agreements! to! be! concluded!
between!the!Phils!and!JBIC.!

An!agreement!was!reached!between!both!Governments,!as!shown!in!the!Exchange!
of!Notes!between!the!representative.!

'

The!Philippines!obtained!from!and!was!granted!a!loan!by!the!JBIC,!Loan'Agreement'
No.'PHdP204'dated!December!28,!1999.!
Under! the! terms! and! conditions! of! the! Loan! JBIC! agreed! to! lend! the! Philippine!
Government! an! amount! not! exceeding! Y! 15,384,000,000! as! principal! for! the!
implementation!of!the!Arterial!Road!Links!Development!Project!(Phase!IV).!
o The! amount! shall! be! used! for! the! purchase! of! goods! and! services!
necessary!for!the!implementation!of!the!project.!
Phase! IV! includes! the! Catanduanes! Circumferential! Road,! which! was! further!
dividided!in!4!packages:!
o CP!I:!San!Andres!(Codon)8Virac8Jct.!Bato8!Viga!Road!8!79.818!kms!
o CP!II:!Viga8Bagamanoc!Road!8!10.40!kms.!
o CP!III:!Bagamanoc8Pandan!Road!8!47.50!kms.!
11
o CP!IV:!Pandan8Caramoran8Codon!Road!8!66.40!kms. !
Subsequently,!the!DPWH!caused!the!publication!of!the!"Invitation!to!Prequalify!and!
to! Bid"! for! the! implementation! of! the! CP! I! project! in! two! leading! national!
newspapers! (Manila! Times! and! Manila! Standard)! on! November! 22! and! 29,! and!
December!5,!2002.!
23!foreign!and!local!contractors!responded!to!the!invitation!but!only!8!contractors!
were!eligible!to!bid,!one!withdrew,!so!a!total!of!7!contractors.!
Prior! to! the! opening! of! the! respective! bid! proposals,! it! was! announced! that! the!
Approved!Budget!for!the!Contract!(ABC)!was!P738,710,563.67.!
The!result!of!the!bidding!revealed!the!following!3!lowest!bidders:!

Name!of!Bidder!

Original! Bid! As! Read! As8Corrected!


Bid!
Variance!
(Pesos)!
Amount!(Pesos)!

1)! China! Road! &! Bridge!


P!993,183,904.98!
Corporation!

P952,564,821.71!

28.95%!

2)! Cavite! Ideal! Intl!


P1,099,926,598.11!
Const.!Devt.!Corp.!

P1,099,926,598.11!

48.90%!

3)! Italian! Thai! Devt.!


P1,125,022,075.34!
Public!Company,!Ltd.!

P1,125,392,475.36!

52.35%!

The!bid!of!private!respondent!China!Road!&!Bridge!Corporation!was!corrected!from!
the! original! P993,183,904.98! (with! variance! of! 34.45%! from! the! ABC)! to!
P952,564,821.71! (with! variance! of! 28.95%! from! the! ABC)! based! on! their! letter!
clarification!dated!April!21,!2004.!!
Mr.! Hedifume! Ezawa,! Project! Manager! of! the! Catanduanes! Circumferential! Road!
Improvement! Project! (CCRIP),! in! his! Report,! recommended! the! award! of! the!
contract!to!private!respondent!China!Road!&!Bridge!Corporation.!
The!BAC!of!the!DPWH,!with!the!approval!of!then!Acting!Secretary!Soriquez,!issued'
the'assailed'Resolution'No.'PJHLdAd04d012!dated!May!7,!2004!recommending'the'

14!

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award' in' favor' of' private' respondent' China' Road' &' Bridge' Corporation! of! the!
contract!under!JBIC!Loan!Agreement!No.!PH8P204.!!
!On!September!29,!2004,!a!Contract!of!Agreement!(COA)!was!entered!into!by!and!
between! the! DPWH! China! Road! &! Bridge! Corporation! for! the! implementation! of!
the!CP!I!project.!
The! petitioners! mainly! seek! to! nullify! the! Resolution! and! they! seek! to! annul! the!
COA!entered!into!by!DPWH!and!China!Road!&!Bridge!Corporation.!

'
ISSUES/HELD:'
'
1. W/N' Petitioners' have' standing' to' file' the' instant' PetitionYES,' they' possess' locus*
standi*to'file'the'present'suit'as'taxpayers.'

Locus#standi!!a!right!of!appearance!in!a!court!of!justice!on!a!given!question."!!
o a! partys! personal! and! substantial! interest! in! a! case! such! that! he! has!
sustained!or!will!sustain!direct!injury!as!a!result!of!the!governmental!act!
being!challenged.!!
o "Interest"!!material!interest,!an!interest!in!issue!affected!by!the!decree,!
as! distinguished! from! mere! interest! in! the! question! involved,! or! a! mere!
incidental!interest.!

The! prevailing! doctrine! in! taxpayers! suits! is! to! allow' taxpayers' to' question'
contracts' entered' into' by' the' national' government' or' GOCCs' allegedly' in'
contravention'of'law.!
o !A!taxpayer!is!allowed!to!sue!where!there'is'a'claim'that'public'funds'are'
illegally' disbursed,' or' that' public' money' is' being' deflected' to' any'
improper' purpose,' or' that' there' is' a' wastage' of' public' funds' through'
the'enforcement'of'an'invalid'or'unconstitutional'law.!!
o He!need!not!be!a!party!to!the!contract!to!challenge!its!validity.!!

The!petitioners!are!suing!as!taxpayers.!!
o They!have!sufficiently!demonstrated!that!taxpayers!money!would!be!or!
is!being!spent!on!the!project!considering!that!the!Philippine!Government!
is!required!to!allocate!a!peso8counterpart!therefor.!!
o The!respondents!themselves!admit!that!appropriations!for!these!foreign8
assisted! projects! are! composed! of! the! loan! proceeds! and! the! peso8
counterpart.!!
o The!counterpart!funds!refer!to!the!component!of!the!project!cost!to!be!
financed! from! government8appropriated! funds,! as! part! of! the!
governments!commitment!in!the!implementation!of!the!project.!
!
2. W/N' the' Resolution' and' the' COA' are' validYES,' Resolution' No.' PJHLdAd04d012' is'
valid.'As'a'corollary,'the'subsequent'contract'is'likewise'valid.'

'

!
Brief#History#of#Philippine#Procurement#Laws#(I#dont#think#this#is#important,#but#we#can#never#
be#too#sure#with#Cande.#HAHA)#

The#US#Philippine#Commission#(1901),#through#various#statutes#(Act#No.#22,#74,#82,#
etc),# introduced# the# American# practice# of# public# bidding# mainly# for# the# making# of#
contracts# for# public# works# and# the# purchase# of# office# supplies# for# the# use# of# the#
Govt.#

On# February# 3,# 1936,# Pres.# Manuel# L.# Quezon# issued# EO* No.* 16* declaring* as* a*
matter* of* general* policy* that* government* contracts* for* public* service* or* for*
furnishing* supplies,* materials* and* equipment* to* the* government* should* be*
subjected*to*public*bidding.##

The#Revised#Administrative#Code#of#1917#subsequently#improved#public#bidding.#

Pres.# Diosdado# Macapagal# up# to# PGMA# issued# various# EOs# and# PDs,# which#
reiterated# the# need# for# public# bidding# when# dealing# with# government# projects.#
These#included#procurement#laws#and#guidelines.#

PGMA! (Oct.! 2001)! issued! EO! 40,! the! law! mainly! relied! upon! by! the! respondents,!
entitled! Consolidating! Procurement! Rules! and! Procedures! for! All! National!
Government! Agencies,! GOCCs! and! Government! Financial! Institutions,! and!
Requiring!the!Use!of!the!Government!Procurement!System.!It!repealed,!amended!
or! modified! all! executive! issuances,! orders,! rules! and! regulations! or! parts! thereof!
inconsistent!therewith.!!

She! signed! into! law! RA! 9184! (January! 2003)! which! expressly! repealed,! among!
others,!those!EOs!and!PDs!issued!by!the!former!presidents.!
(End#of#History)#

EO'40,'not'RA'9184,'is'applicable'to'the'procurement'process'undertaken'for'the'
CP' I' project.' RA' 9184' cannot' be' given' retroactive' application.' (Petitioners!insist!
RA!9184!is!the!applicable!process)'
o It! is! not! disputed! that! the! Invitation! to! Prequalify! and! to! Bid! for! its!
implementation!was!published!in!two!leading!national!newspapers.'
o At!the!time,!the!law!in!effect!was!EO!40.!'
o On!the!other!hand,!RA!9184!took!effect!two!months!later'

The!procurement!process!of!CP!I!is!covered!by!EO!40!(sec.!1)'
o shall# apply# to# see# procurement# of# (a)# goods,# supplies,# materials# and#
related#service;#(b)#civil#works#xxx#

The!procurement!process!involves!the!following!steps:!#
o (1)!pre8procurement!conference;!#
o (2)!advertisement!of!the!invitation!to!bid;!#
o (3)!pre8bid!conference;!#
o (4)!eligibility!check!of!prospective!bidders;!#
o (5)!submission!and!receipt!of!bids;!#

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o (6)!modification!and!withdrawal!of!bids;!#
o (7)!bid!opening!and!examination;!#
o (8)!bid!evaluation;!#
o (9)!post!qualification;!#
o (10)!award!of!contract!and!notice!to!proceed.#
Clearly!then,!when!the!Invitation!to!Prequalify!and!to!Bid!for!the!implementation!of!
the!CP!I!project!was!published,!the!procurement!process!had!already!commenced!
and!the!application!of!EO!40!to!the!procurement!process!for!the!CP!I!project!had!
already!attached.#
RA! 9184! cannot! be! applied! retroactively! as! there! was! no! express! provision! that!
provides!for!such.#
Further,!the!Transitory!Clause!(Sec.!77)!of!the!IRR8A!for!the!applicability!of!RA9184!
provides!that:#
o if! the! advertisement! of! the! invitation! for! bids! was! issued! prior! to! the!
effectivity! of! RA! 9184,! such! as! in! the! case! of! the! CP! I! project,! the!
provisions! of! EO! 40! and! its! IRR,! and! PD! 1594! and! its! IRR! in! the! case! of!
national! government! agencies,! and! RA! 7160! and! its! IRR! in! the! case! of!
local!government!units,!shall!govern.#
The! IRR8A! covers! only! fully! domestically8funded! procurement! activities! from!
procurement!planning!up!to!contract!implementation!and!that!it!is!expressly!stated!
that! IRR8B! for! foreign8funded! procurement! activities! shall! be! subject! of! a!
subsequent!issuance.#
o !Nonetheless,!there!is!no!reason!why!the!policy!behind!Section!77!of!IRR8
A!cannot!be!applied!to!foreign8funded!procurement!projects!like!the!CP!I!
project.!#
o It! would! be! incongruous,! even! absurd,! to! provide! for! the! prospective!
application!of!RA!9184!with!respect!to!domestically8funded!procurement!
projects! and,! on! the! other! hand,! as! urged! by! the! petitioners,! apply! RA!
9184!retroactively!with!respect!to!foreign8funded!procurement!projects.!!
Under' EO' 40,' the' award' of' the' contract' to' private' respondent' China' Road' &'
Bridge'Corporation'is'valid.'
Nonetheless,! EO! 40! expressly! recognizes! as! an! exception! to! its! scope! and!
application!those!government!commitments!with!respect!to!bidding!and!award!of!
contracts! financed! partly! or! wholly! with! funds! from! international! financing!
institutions!as!well!as!from!bilateral!and!other!similar!foreign!sources.!
In! relation,! Sec.' 4' of' RA' 4860! was! correctly! cited! by! the! respondents,! authorizes'
the'President,'in'the'contracting'of'any'loan,'credit'or'indebtedness'thereunder,'
"when' necessary,' agree' to' waive' or' modify' the' application' of' any' law' granting'
preferences'or'imposing'restrictions'on'international'competitive'bidding!x!x!x."!
o The! said! provision! of! law! further! provides! that! "the' method' and'

'

procedure'in'the'comparison'of'bids'shall'be'the!subject'of'agreement'
between'the'Philippine'Government'and'the'lending'institution."!
The! procurement! of! goods! and! services! for! the! CP! I! project! is! governed' by' the'
corresponding'loan'agreement!entered!into!by!the!government!and!the!JBIC,!i.e.,!
Loan!Agreement!No.!PH8P204.!!
o It! is! stipulated! that! the' procurement' of' goods' and' services' for' the'
Arterial' Road' Links' Development' Project' (Phase' IV),' of' which' CP' I' is' a'
component,'is'to'be'governed'by'the'JBIC'Procurement'Guidelines.!!
It!is!clear!that!the!JBIC!Procurement!Guidelines!proscribe'the'imposition'of'ceilings'
on'bid'prices'and'it'enjoins'the'award'of'the'contract'to'the'bidder'whose'bid'has'
been'determined'to'be'the'lowest'evaluated'bid.'!
Since!these!terms!and!conditions!are!made!part!of!Loan!Agreement!No.!PH8P204,'
the'government'is'obliged'to'observe'and'enforce'the'same'in'the'procurement'
of'goods'and'services'for'the'CP'I'project.!!
As! shown! earlier,! private! respondent! China! Road! &! Bridge! Corporations! bid! was!
the!lowest!evaluated!bid.!
o In! accordance! with! the! JBIC! Procurement! Guidelines,! therefore,! it! was!
correctly!awarded!the!contract!for!the!CP!I!project.!
Even! if! RA! 9184! were! to! be! applied! retroactively,! the! terms! of! the! Exchange! of!
Notes!and!Loan!Agreement!would!still!govern!the!procurement!for!the!CP!I!project.!

!
International*Law*Part!!!*(SUPER*IMPORTANT)'
SUBdISSUE:' W/N' the' Loan' Agreement' constitutes' an' international' agreementYES,' the'
exchange'of'notes'is'an'executive'agreement,'hence'binding'among'the'contracting'parties.*

The!petitioners,!in!order!to!place!the!procurement!process!undertaken!for!the!CP!I!
project!within!the!ambit!of!RA!9184,!assert!that!Loan!Agreement!is!neither!a!treaty,!
an!international!agreement!nor!an!executive!agreement.!!

They! cite! EO! 459! dated! November! 25,! 1997! where! the! three! agreements! are!
defined!in!this!wise:!
o International# agreement! ! shall! refer! to! a! contract! or! understanding,!
regardless! of! nomenclature,! entered! into! between! the! Philippines! and!
another!government!in!written!form!and!governed!by!international!law,!
whether! embodied! in! a! single! instrument! or! in! two! or! more! related!
instruments.!
o Treaties!!international!agreements!entered!into!by!the!Philippines!which!
require!legislative!concurrence!after!executive!ratification.!This!term!may!
include!compacts!like!conventions,!declarations,!covenants!and!acts.!
o Executive#agreements!!similar!to!treaties!except!that!they!do!not!require!
legislative!concurrence.!!

The!petitioners!mainly!argue!that!Loan!Agreement!No.!PH8P204!does!not!fall!under!

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any!of!the!three!categories!because!to!be!any!of!the!three,!an!agreement!had!to!be!
one!where!the!parties!are!the!Philippines!as!a!State!and!another!State.!!
o The! JBIC,! the! petitioners! maintain,! is! a! Japanese! banking! agency,! which!
presumably! has! a! separate! juridical! personality! from! the! Japanese!
Government.!
The'Court'holds'that'Loan'Agreement'No.'PHdP204'taken'in'conjunction'with'the'
Exchange' of' Notes' between' the' Japanese' Government' and' the' Philippine'
Government'is'an'executive'agreement.'
The! Loan! Agreement! was! executed! by! and! between! the! JBIC! and! the! Philippine!
Government!pursuant!to!the!Exchange!of!Notes!executed!by!the!two!Governments!
representatives.!
The! Exchange' of' Notes' expressed' that' the' two' governments' have' reached' an'
understanding! concerning! Japanese! loans! to! be! extended! to! the! Philippines! and!
that!these!loans!were!aimed!at!promoting!our!countrys!economic!stabilization!and!
development!efforts.!
Under! the! circumstances,' the' JBIC' may' well' be' considered' an' adjunct' of' the'
Japanese'Government.!!
o Further,! the' Loan' is' indubitably' an' integral' part' of' the' Exchange' of'
Notes.!!
o It! forms! part! of! the! Exchange! of! Notes! such! that! it! cannot! be! properly!
taken!independent!thereof.!
As! defined! by! the! United! Nations! Treaty! Collection,! An! "exchange* of* notes"! is! a!
record' of' a' routine' agreement' that' has' many' similarities' with' the' private' law'
contract.!!
o It!consists!of!the!exchange!of!two!documents,!each!of!the!parties!being!in!
the!possession!of!the!one!signed!by!the!representative!of!the!other.!!
o Under! the! usual! procedure,! the! accepting! State! repeats! the! text! of! the!
offering!State!to!record!its!assent.!!
o The!signatories!of!the!letters!may!be!government!Ministers,!diplomats!or!
departmental!heads.!!
o The! technique! of! exchange! of! notes! is! frequently! resorted! to,! either!
because!of!its!speedy!procedure,!or,!sometimes,!to!avoid!the!process!of!
legislative!approval.!!
It! is! stated! that' "treaties,' agreements,' conventions,' charters,' protocols,'
declarations,' memoranda' of' understanding,' modus' vivendi' and' exchange' of'
notes"'all'refer'to'"international'instruments'binding'at'international'law."!!
o Although!these!instruments!differ!from!each!other!by!title,!they!all!have!
common!features!and!international' law' has' applied' basically' the' same'
rules'to'all'these'instruments.!
o These'rules'are'the'result'of'long'practice'among'the'States,'which'have'

'

accepted' them' as' binding' norms' in' their' mutual' relations' and' are'
regarded'as'international'customary'law.''
o To!codify!these!rules,!two!conventions!were!had:!

The! 1969! Vienna! Convention! on! the! Law! of! Treaties! (! 1969!
VCLT),! which! contains! rules! for! treaties! concluded! between!
States.!!

The! 1986! Vienna! Convention! on! the! Law! of! Treaties! between!
States! and! International! Organizations! (1986! VCLT)! which! has!
still! not! entered! into! force,! added! rules! for! treaties! with!
international!organizations!as!parties.!!

Both!the!1969!and!1986!VCLTs!do!not!distinguish!between!the!
different!designations!of!these!instruments.!!
An' exchange' of' notes' is' considered' a' form' of' an' executive' agreement,' which'
becomes' binding' through' executive' action' without' the' need' of' a' vote' by' the'
Senate'or'Congress.!
o The! following! disquisition! by! Francis! B.! Sayre,! former! US! High!
Commissioner!to!the!Philippines,!entitled!"The!Constitutionality!of!Trade!
Agreement! Acts,"! quoted! in! Commissioner# of# Customs# v.# Eastern# Sea#
Trading,!is!apropos:!
o Agreements'concluded'by'the'President'which'fall'short'of'treaties'are'
commonly'referred'to'as'executive'agreements'and!are!no!less!common!
in! our! scheme! of! government! than! are! the! more! formal! instruments! !
treaties!and!conventions.!They!sometimes'take'the'form'of'exchange'of'
notes'and'at'other'times'that'of'more'formal'documents'denominated'
"agreements"'or'"protocols".!x!x!x!

Under! the! fundamental! principle' of' international' law' of' pacta* sunt* servanda,'
which!is,!in!fact,!embodied!in!Section!4!of!RA!9184,!provides!that!"[a]ny#treaty#or#
international# or# executive# agreement# affecting# the# subject# matter# of# this# Act# to#
which# the# Philippine# government# is# a# signatory# shall# be# observed,"! the! DPWH,! as!
the! executing! agency! of! the! projects! financed! by! Loan! Agreement! No.! PH8P204,!
rightfully! awarded! the! contract! for! the! implementation! of! civil! works! for! the! CP! I!
project!to!private!respondent!China!Road!&!Bridge!Corporation.!

!
DISPOSITIVE:!Petition!is!DISMISSED.!

6. Pharmaceutical'v.'DOH'(EM)'
Pharmaceutical!and!Health!Care!Association!of!the!Philippines,!petitioner!
vs.!

17!

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Sources'of'International'Law:'Treaties'

Health!Secretary!Francisco!Duque!III;!Health!Undersecretaries!Dr.!Ethelyn!Nieto,!Dr.!
Margarita!Galon,!Atty.!Alexander!Padilla!&!Dr.!Jade!Del!Mundo,!and!Assistant!
Secretaries!Dr.!Mario!Villaverde,!Dr.!David!Lozada,!and!Dr.!Nemesio!Gako,!respondents!
Note:#DOH!deemed!impleaded!as!respondent!since!the!named!respondents!issued!the!
RIRR!in!their!capacity!as!officials!of!the!said!executive!agency!
G.R.!No.!173034!October!9,!2007!
!!
Austria8Martinez,!J.!
!!

This!is!a!petition!for!certiorari!seeking!to!nullify!A.O.!200680012!Revised!Implementing!
Rules!and!Regulations!(RIRR)!of!E.O.!51!"The!Milk!Code"

Petitioner!posits!that!the!RIRR!is!not!valid!as!it!contains!unconstitutional!provisions!
that!go!beyond!the!law!it!seeks!to!implement
!!
Facts:!

E.O.!51!or!the!Milk!Code
o Issued!by!President!Cory!Aquino!on!1986!through!her!legislative!powers!under!
the!Freedom!Constitution
o In!its!preamble,!it!stated:!it!seeks!to!give!effect!to!Art.!11!of!the!International!
Code!of!Marketing!of!Breastmilk!Substitutes!(ICMBS),!a!code!adopted!by!the!
World!Health!Assembly!(WHA)!in!1981
198282006!8!the!WHA!adopted!several!resolutions!to!the!effect!that!
breastfeeding!!should!be!supported,!promoted!and!protected;!nutrition!
and!health!claims!are!not!permitted!for!breastmilk!substitutes
1990!8!Philippines!ratified!the!International!Covenant!on!the!Rights!of!the!Child!(CRC)
o Art.!24!8!State!Parties!should!take!appropriate!measures!to!diminish!infant!and!
child!mortality,!and!ensure!that!all!segments!of!society,!specially!parents!and!
children,!are!informed!of!the!advantages!of!breastfeeding
May!15,!2006
o DOH!issued!herein!assailed!RIRR!which!was!to!take!effect!July!7,!2006
June!28,!2006
o Petitioner,!representing!its!members!that!are!manufacturers!of!breastmilk!
substitutes,!filed!the!Petition!for!Certiorari!and!Prohibition!with!Prayer!for!the!
Issuance!of!a!TRO!or!Writ!of!Preliminary!Injunction
o Main!issue!raised:!respondents!acted!with!GADALEJ!in!violating!the!
Constitution!through!the!RIRR's!provisions

1.
2.
3.
4.

5.
6.

August!15,!2006!
o TRO!was!granted
June,!2007
o June!19!8!case!was!set!for!oral!arguments!on!this!day

Issues:!
WON!the!petitioner!is!a!real!party8in8interest
WON!the!RIRR!is!unconstitutional
WON!the!RIRR!is!in!accord!with!E.O.!51
WON!pertinent!international!agreements!entered!into!by!the!Philippines!are!part!of!
the!law!of!the!land!and!may!be!implemented!by!the!DOH!through!the!RIRR;!If!in!the!
affirmative,!whether!the!RIRR!is!in!accord!with!such!agreements;
WON!sections!4,!5(w),!22,!32,!47,!and!52!of!the!RIRR!violate!due!process
WON!Section!13!of!the!RIRR!on!Total!Effect!provides!sufficient!standards
!!
Held:!this!petition!is!partly#imbued!with!merit!
!!
Ratio:!
CONSTITUTIONALITY/'INTERNATIONAL'LAW'PART'

Here,!the!court!will!determine!if!pertinent!international!instruments!adverted!to!by!
respondents!are!part!of!the!law!of!the!land

The!following!instruments!were!invoked!by!the!respondents
o CRC
o International!Covenant!on!Economic,!Social,!and!Cultural!Rights!(ICESCR)
o Convention!on!the!Elimination!of!All!Forms!of!Discrimination!against!Women!
(CEDAW)

These!instruments!provide!that:
o Steps!must!be!taken!by!State!Parties!to!diminish!infant!and!child!morality!and!
inform!the!society!of!the!advantages!of!breastfeeding,!ensure!the!health!and!
well8being!of!families,!and!ensure!that!women!are!provided!with!services!and!
nutrition!in!connection!with!pregnancy!and!lactation
o No'specific!provisions!regarding!the!use!or!marketing!of!breastmilk!substitutes

WHA!and!ICMBS!are!the!ones!that!have!specific!provisions!regarding!the!use!or!
marketing!of!breastmilk!substitutes
The!Constitution!provides!two!ways!by!which!international!law!can!become!part!of!the!
sphere!of!domestic!law
o Transformation'

'

June!5!8!court!issued!an!Advisory!(Guidance!for!Oral!Arguments)!setting!out!the!
following!issues:
!!

requires!that!international!law!can!be!transformed!through!a!
constitutional!mechanism!such!as!local!legislation

Treaties!become!part!of!the!law!of!the!land!through!transformation!
pursuant!to!Art.!VII,!Section!21!of!the!Constitution:!"no!treaty!or!

18!

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o

Sources'of'International'Law:'Treaties'

international!agreement!shall!be!valid!and!effective!unless!concurred!in!
by!at!least!2/3!of!all!the!members!of!the!Senate"
Incorporation'd'this!applies!when,!by!mere!constitutional!declaration,!
international!law!is!deemed!to!have!the!force!of!domestic!law
This!is!made!through!Art.!2,!Section!2!!of!the!Constitution:!the!
Philippines..adopts'the'generally'accepted'principles'of'international'
law'as'part'of'the'law'of'the'land

The!ICMBS!and!WHA!resolutions!are!not'treaties!as!they!have!not!been!concurred!in!by!
at!least!2/3!of!the!Senate!
o However,!the!ICMBS!which!was!adopted!by!the!WHA!in!1981!had!been!
transformed!into!domestic!law!through'local'law!(the!Milk!Code)!that!has!force!
and!effect!of!law!in!this!jurisdiction!and!not!the!ICMBS#per#se#(transformation)
o The!Milk!Code!is!almost!a!verbatim!reproduction!of!the!ICMBS!
BUT!it!did!not!adopt!the!provision!in!the!ICMBS!absolutely!prohibiting!
advertising!or!other!forms!of!promotion!to!the!general!public!of!
products!within!the!scope!of!the!ICMBS
Instead,!the!Milk!Code!expressly!provides!that!advertising,!promotion,!
or!other!marketing!materials!may!be!allowed!if!such!materials!are!duly!
authorized!and!approved!by!the!Inter8Agency!Committee
Mijares!v.!Ranada!provides!that
o Generally!accepted!principles!of!international!law,!by!virtue!of!the!
incorporation!clause!of!the!Constitution,!forms!part!of!the!laws!of!the!land!even!
if!they!do!not!derive!from!treaty!obligations

WHA!resolutions!have!not!been!embodied!in!any!local!legislation.!But!have!they!
attained!customary!status?
o The!World!Health!Organization!(WHO)8!one!of!the!international!specialized!
agencies!allied!with!the!UN
o Under!the!WHO!Constitution,!it!is!the!WHA!which!determines!the!policies!of!
the!WHO,!and!has!the!power!to!adopt!regulations!concerning!"advertising!and!
labelling!of!biological,!pharmaceutical!and!similar!products!moving!in!
international!commerce"!and!to!"make!recommendations!to!members!with!
respect!to!any!matter!within!the!competence!of!the!Organization"

Regulations,!along!with'conventions'and'agreements,!duly!adopted!by!the!WHA!bind'
members'states
o Art.!19!8conventions!and!agreements(with!respect!to!any!matter!within!the!
competence!of!the!organization)!...shall!come!into!force!for!each!member!
when!accepted!by!it!in!accordance!with!its!constitutional!processes
o Art.!20!8!each!member!undertakes!that!it!will...take!action!relative!to!the!
acceptance!of!such!convention!or!agreement
o Art.!21!8!the!Health!Assembly!shall!have!the!authority!to!adopt!regulations!
regarding!certain!matters
o Art.!22!8!regulations!adopted!pursuant!to!Article!21!shall!come!into!force!for!all!
members!after!due!notice!has!been!given!of!their!adoption
On!the!other!hand,!under!Art.!23,!recommendations!of!the!WHA!do'not'come!into!
force!for!members!in!the!same!way!those!regulations!and!conventions!and!agreements!
under!Arts.!19822!do.
o Former!Senior!Legal!Officer!of!WHO,!Sami!Shubber,!stated!the!WHA!
recommendations!are!generally!not!binding,!but!carry!moral!and!political!
weight!as!they!constitute!the!judgement!on!a!health!issue!of!the!collective!
membership!of!the!highest!international!in!the!filed!or!health
o Even!the!ICMBS!itself!was!adopted!as!a!mere!resolution

They!are!norms!of!general!or!customary!international!law!which!are!
binding!of!all!states

e.g.!Pacta#sunt#servanda,!good!faith,!due!process
O'Connell!holds!that!these!are!binding!because!they'are'"basic'to'legal'
systems'generally"'
Customary!rules!are!binding,!they!have!two!requisites
State!practice!8!established,!widespread,!and!consistent!practice!of!the!
part!of!States
Opinio#juris8!psychological!element;!belief!that!the!practice!in!question!
is!rendered!obligatory!

Material!factor:!how!states!behave
Psychological!or!subjective!factor:!why!they!behave!the!way!they!do;!
belief!that!a!certain!form!of!behavior!is!obligatory

Its!introduction!reads:!the!code!is!in!the!form!of!a!recommendations!
rather!than!a!regulation
The!WHA!resolution!adopting!the!ICMBS!and!subsequent!WHA!resolutions!
urging!member!states!to!implement!the!ICMBS!are!merely!recommendatory!
and!not!legally!binding
Thus,'while'the'provisions'adopted'of'the'Milk'Code'are'binding'
having'been'translated'into'domestic'law,'the'subsequent'WHA'
resolutions'(providing!for!exclusive!breastfeeding!from!086!months,!
continued!breastfeeding!up!to!24!months,!and!absolutely!prohibiting!
advertisements!and!promotions!of!breatstmilk!substitutes)'which'have'
not'been'adopted'into'domestic'law,'are'not'binding

Fr.!Bernas!defines!customary!international!law!as!
o General!and!consitent!practice!of!states!followed!by!them!from!a!sense!of!legal!
obligation
o Two!elements

'

WHA!resolutions!are!known!to!be!"soft!law"

19!

Public'International'Law'
o
o
o

Sources'of'International'Law:'Treaties'

Soft!law!does!not!fall!into!any!of!the!sources!on!international!law!in!Art.!38(1)!
of!the!ICJ!statute
It!is!however,!an!expression!of!non8binding!norms,!principles,!and!practices!that!
influence!state!behaviour
Certain!declarations!of!the!UN!General!Assembly!fall!under!this!category,!most!
notably,!the!UN!Declaration!on!Human!Rights!which!was!cited!by!this!court!
several!times

Here,!respondents!failed'to!establish!that!the!provisions!of!the!pertinent!WHA!
resolutions!are!customary!international!law!which!may!be!deemed!part!of!the!law!of!
the!land
o Consequently,!legislation!is!necessary!to!transform!the!provisions!of!the!WHA!
resolutions!into!domestic!law
o The!provisions!of!the!WHA!resolutions!cannot'be!considered!as!part!of!the!law!
of!the!land!that!can!be!implemented!by!executive!agencies!without!the!need!of!
a!law!enacted!by!the!legislature.
!!
OTHER'ISSUES:'
''
WON'the'petitioner'is'the'real'party'in'interest?'Yes.'
An!association!has!standing!to!file!suit!for!its!workers!despite!its!lack!of!direct!interest.!
An!organization!has!standing!to!assert!the!concerns!of!its!constituents.!(Exec!Sec!vs!CA)
The!Court!has!rules!that!an!association!has!the!legal!personality!to!represent!
itsmembers!because!the!results!of!the!case!will!affect!their!vital!interests.!
(PurokBagong!Silang!Association!Inc.!vs.!Yuipco)8In!the!petitioners!Amended!Articles!of!
Incorporation,!it!states!that!the!association!
is!formed!to!represent!directly!or!through!approved!representatives!the!
pharmaceutical!and!health!care!industry!before!the!Philippine!Government!and!any!of!
its!agencies,!the!medical!professions!and!the!general!public.
Therefore,!the!petitioner,!as!an!organization,!has!an!interest!in!fulfilling!its!avowed!
purpose!of!representing!members!who!are!part!of!the!pharmaceutical!and!healthcare!
industry.!Petitioner!is!duly!authorized!to!bring!to!the!attention!of!the!government!
agencies!and!courts!any!grievance!suffered!by!its!members!which!are!directly!affected!
by!the!assailed!RIRR.
''
WON'the'DOH'has'the'power'to'implement'the'WHA'Resolutions'under'the'Revised'
Administrative'Code'even'in'the'absence'of'a'domestic'law?''
Only!the!provisions!of!the!Milk!Code.!(as!per!the!discussion!above)8Section!3,!Chapter!
1,!Title!IX!of!the!RAC!of!1987!provides!that!the!DOH!shall!define!the!national!health!
policy!and!can!issue!orders!and!regulations!concerning!the!implementation!of!
established!health!policies.8A.O.!No!2005!80014!which!provides!the!national!policy!on!

infant!and!young!child!feeding,!does!not!declare!that!as!part!of!its!policy,!the!
advertisement!or!promotion!of!breastmilk!substitutes!should!be!absolutely!prohibited.
8Only!the!provisions!of!the!Milk!Code,!but!not!those!of!the!subsequent!WHA!
Resolutions,!can!be!validly!implemented!by!the!DOH!through!the!subject!RIRR.!
!!
WON'the'provisions'of'the'RIRR'being'in'accordance'with'the'Milk'Code?'Not'all'of'
them'
!!
Assailed!provisions:![1]!extending!the!coverage!to!young!children;![2]!imposing!
exclusive!breastfeeding!for!infants!from!086!months;![3]!imposes!an!absolute!ban!on!
advertising!and!promotion!for!breastmilk!substitutes;![4]!requiring!additional!labeling!
requirements;![5]!prohibits!the!dissemination!of!information!on!infant!formula;![6]!
forbids!milk!manufacturers!and!distributors!to!extend!assistance!in!research!and!
continuing!education

!Although!the!DOH!has!the!power!under!the!Milk!Code!
to!control!information!regarding!breastmilk!vis88vis!breastmilk!substitutes,!this!power!
is!not!absolute!because!it!has!no!power!to!impose!an!
absolute!prohibition!in!the!marketing,!promotion!and!advertising!of!breastmilk!
substitutes.!

Several!provisions!of!the!Milk!Code!attest!to!the!fact!that!such!power!to!control!
information!is!not!absolute.8Sections!11!and!4(f)!of!the!RIRR!are!clearly!violative!of!the!
Milk!Code!because!such!provisions!impose!an!absolute!
prohibition!on!advertising,!promotion!andmarketing!of!breastmilk!substitutes,!which!
is!not!provided!for!in!the!Milk!Code.!Section!46!is!violative!of!the!Milk!Code!because!
the!DOH!has!exceeded!its!authority!in!imposing!such!fines!or!sanctions!when!the!Milk!
Code!does!not!do!so!.Other!assailed!provisions!are!in!accordance!with!the!Milk!Code.
!!
WON'Section'13'of'the'RIRR'providing'a'sufficient'standard?'Yes.'
!!

Questioned!provision,!in!addition!to!Section!26!of!Rule!VII!provide!labeling!
requirements!for!breastmilk!substitutes!found!to!be!in!consonance!with!theMilk!Code

The!provisions!in!question!provide!reasonable!means!of!enforcing!related!provisions!in!
the!Milk!Code.
!!
WON'Section'57'of'the'RIRR'repeals'existing'laws?dSection'in'question'only'repeals'
orders,'issuances'and'rules'and'regulations,'not'laws.''
''

The!provision!is!valid!as!it!is!within!the!DOHs!rule8making!power.
An!administrative!agency!has!quasi8legislative!or!rule8making!power.!However,!such!
power!is!limited!to!making!rules!and!regulation!subjected!to!the!boundaries!set!by!the!

'

20!

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Sources'of'International'Law:'Treaties'

granting!statute!and!the!Constitution.!The!power!is!also!subject!to!the!doctrine!of!non8
delegability!and!separability!of!powers.!
The!power,!which!
includes!amending,!revising,!altering!or!repealing,!is!granted!to!allow!!for!flexibility!in!
the!implementation!of!the!laws.
!!
WON'Section'4,'5(w),'11,'22,'32,'47'and'52'violates'the'due'process'clause'of'the'
Constitution?'
!!

Despite!the!fact!that!the!present!Constitution!enshrines!free!enterprise!as!a!
policy,!it!nonetheless!reserves!to!the!government!the!power!to!intervene!whenever!
necessary!to!promote!the!general!welfare

Free!enterprise!does!not!call!for!the!removal!of!protective!regulations.
It!must!be!clearly!explained!and!!proven!by!competent!evidence!just!exactly!how!
such!protective!regulation!would!result!in!the!restraint!of!trade
In!the!instant!case,!petitioner!failed!to!show!how!the!aforementioned!section!shamper!
the!trade!of!breastmilk!substitutes.!They!also!failed!to!establish!that!these!activities!
are!essential!and!indispensable!to!their!trade.
!!
Dispositive'Portion:'The'Petition'is'Partially'Granted.'Only'sections'4(f),'11'and'46'
of'A.O.'2006d0014'are'declared'null'and'void'for'being'ultra'vires.'The'TRO'islifted'
insofar'as'the'rest'of'the'provisions'of'A.O.'2006d0012'is'concerned.!'

7. North'Cotabato'v.'GRP'Peace'Panel'(NO)'
TOPIC:!Territorial!sovereignty;!Treaty/Agreement!Obligations;!Unilateral!Declaration!
!
G.R.'No.'183591'
Petitioner:! THE' PROVINCE' OF' NORTH' COTABATO,' duly' represented' by' GOVERNOR' JESUS'
SACDALAN'and/or'VICEdGOVERNOR'EMMANUEL'PIOL'
Respondent:! THE' GOVERNMENT' OF' THE' REPUBLIC' OF' THE' PHILIPPINES' PEACE' PANEL' ON'
ANCESTRAL' DOMAIN' (GRP),' represented' by' SEC.' RODOLFO' GARCIA,' ATTY.' LEAH'
ARMAMENTO,' ATTY.' SEDFREY' CANDELARIA,' MARK' RYAN' SULLIVAN' and/or' GEN.'
HERMOGENES' ESPERON,' JR.,' the' latter' in' his' capacity' as' the' present' and' dulydappointed'
Presidential' Adviser' on' the' Peace' Process' (OPAPP)' or' the' sodcalled' Office' of' the'
Presidential'Adviser'on'the'Peace'Process.'
J.#CarpioKMorales!
!
Facts:'

'

On! August! 5,! 2008,! the! Government! of! the! Republic! of! the! Philippines! (GRP)! and! the!
MILF,! were! scheduled! to! sign! a! Memorandum! of! Agreement! on! the! Ancestral! Domain!
(MOA8AD)!Aspect!of!the!GRP8MILF!Tripoli!Agreement!on!Peace!of!2001!in!Kuala!Lumpur,!
Malaysia.!

The! GRP! is! created! by! virtue! of! E.O.! No.! 3! series! of! 2001,! it! requires! a! policy!
framework! for! peace,! including! the! systematic! approach! and! the! administrative!
structure!for!carrying!out!the!comprehensive!peace!process.!

The! MILF! is! a! rebel! group! which! was! established! in! March! 1984! when,! under! the!
leadership! of! the! late! Salamat! Hashim,! it! splintered! from! the! Moro! National!
Liberation!Front!(MNLF)!then!headed!by!Nur!Misuari.!

This! peace! negotiation! document! is! the! product! of! the! long! peace! process! talks!
which!started!in!1996.!!

The! process! went! well! until! the! early! 2000s! when! the! MILF! attacked! several!
municipalities!which!prompted!President!Estrada!to!call!for!an!all8out8war!against!
the!MILF.!

President! Arroyo! asked! the! Government! of! Malaysia! through! Prime! Minister!
Mahathir!Mohammad!to!help!convince!the!MILF!to!return!to!the!negotiating!table,!
the!MILF!eventually,!decided!to!meet!with!the!GRP.!

Formal!peace!talks!between!the!parties!were!held!in!Tripoli,!Libya!from!June!20822,!
2001,!the!outcome!of!which!was!the!GRP8MILF!Tripoli!Agreement!on!Peace!(Tripoli!
Agreement! 2001)! containing! the! basic! principles! and! agenda! on! the! following!
aspects!of!the!negotiation:!Security,!Rehabilitation,!and!Ancestral'Domain.!

A!second!round!of!peace!talks!was!held!in!Cyberjaya,!Malaysia!on!August!587,!2001!
which! ended! with! the! signing! of! the!Implementing! Guidelines! on! the! Security!
Aspect!of! the! Tripoli! Agreement! 2001! leading! to! a! ceasefire! status! between! the!
parties.!

This! was! followed! by! the! Implementing! Guidelines! on! the! Humanitarian!
Rehabilitation!and!Development!Aspects!of!the!Tripoli!Agreement!2001,!which!was!
signed!on!May!7,!2002!at!Putrajaya,!Malaysia.!
The!signing!of!the!MOA8AD!between!the!GRP!and!the!MILF!did!not!materialize!because!
of!the!petitions,!and!the!SC!issued!a!Temporary!Restraining!Order.!

The!motions!were!invoking!the!right!to!information,!exclusion!of!Zamboanga!from!
the!MOA8AD,!and!that!the!MOA8AD!be!declared!unconstitutional.!
What!is!this!MOA8AD?!

The!MOA8AD!includes!not!only!four!earlier!agreements!between!the!GRP!and!MILF,!
but! also! two! agreements! between! the! GRP! and! the! MNLF:! the! 1976! Tripoli!
Agreement,! and! the! Final! Peace! Agreement! on! the! Implementation! of! the! 1976!
Tripoli! Agreement,! signed! on! September! 2,! 1996! during! the! administration! of!
President!Fidel!Ramos.!

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Under!its!Terms!of!Reference,!it!identifies!the!organic!act!for!the!creation!of!ARMM!
and!the!Indigenous!Peoples!Rights!Act,!and!several!international!law!instruments!8!
the! ILO! Convention! No.! 169! Concerning! Indigenous! and! Tribal! Peoples! in!
Independent! Countries! in! relation! to! the! UN! Declaration! on! the! Rights! of! the!
Indigenous!Peoples,!and!the!UN!Charter,!among!others.!
#
Concepts#and#Principles#
"Bangsamoro' people"! as! the!natives! or! original! inhabitants!of! Mindanao! and! its!
adjacent!islands!including!Palawan!and!the!Sulu!archipelago!at#the#time#of#conquest#
or# colonization,!and! their! descendants!whether! mixed! or! of! full! blood,!including!
their! spouses.! (Basically! it! includes! not! only! Moros! but! all! indigenous! peoples! of!
Mindanao!and!its!adjacent!islands)!
"Bangsamoro' homeland,"! the! ownership! of! which! is! vested! exclusively! in! the!
Bangsamoro!people!by!virtue!of!their!prior!rights!of!occupation.!Both!parties!to!the!
MOA8AD! acknowledge! that! ancestral! domain! does! not! form! part! of! the! public!
domain.!
The!MOA8AD!goes!on!to!describe!the!Bangsamoro!people!as!"the!First!Nation'!with!
defined!territory!and!with!a!system!of!government!having!entered!into!treaties!of!
amity!and!commerce!with!foreign!nations."!(The!term!first!nation,!in!Canada,!refers!
to!the!Indians)!!
"Bangsamoro'Juridical'Entity"!(BJE)!to!which!it!grants!the!authority!and!jurisdiction!
over!the!Ancestral!Domain!and!Ancestral!Lands!of!the!Bangsamoro.!
!
Territory#
The!territory!of!the!Bangsamoro!homeland!is!described!as!the!land!mass!as!well!as!
the! maritime,! terrestrial,! fluvial! and! alluvial! domains,! including! the! aerial! domain!
and! the! atmospheric! space! above! it,! embracing! the! Mindanao8Sulu8Palawan!
geographic!region.!
The!core!of!the!BJE!is!defined!as!the!present!geographic!area!of!the!ARMM!8!thus!
constituting! the! following! areas:! Lanao! del! Sur,! Maguindanao,! Sulu,! Tawi8Tawi,!
Basilan,!and!Marawi!City.!Significantly,!this!core!also!includes!certain!municipalities!
of!Lanao!del!Norte!that!voted!for!inclusion!in!the!ARMM!in!the!2001!plebiscite!
Outside!of!this!core,!the!BJE!is!to!cover!other!provinces,!cities,!municipalities!and!
barangays,! which! are! grouped! into! two! categories,! Category! A! and! Category! B.!
(This!categories!mark!the!difference!of!time!frames!for!signing!the!plebiscite,!A!!
12!months!and!B!!25!years!from!the!signing!of!the!MOA8AD)!
!
Resources!

'

The!MOA8AD!states!that!the!BJE!is!free!to!enter!into!any!economic!cooperation!and!
trade!relations!with!foreign!countries!and!shall!have!the!option!to!establish!trade!
missions!in!those!countries.!

The! sharing! between! the! Central! Government! and! the! BJE! of! total! production!
pertaining!to!natural!resources!is!to!be!75:25!in!favor!of!the!BJE.!

The!BJE!may!modify'or'cancel!the!forest!concessions,!timber!licenses,!contracts!or!
agreements,! mining! concessions,! Mineral! Production! and! Sharing! Agreements!
(MPSA),!Industrial!Forest!Management!Agreements!(IFMA),!and!other!land!tenure!
instruments!granted! by! the! Philippine! Government,! including! those! issued! by! the!
present!ARMM.!
!
Governance#

The!MOA8AD!describes!the!relationship!of!the!Central!Government!and!the!BJE!as!
"associative,"! characterized!by! shared! authority! and! responsibility.! And! it! states!
that! the! structure! of! governance! is! to! be! based! on! executive,! legislative,! judicial,!
and! administrative! institutions! with! defined! powers! and! functions! in! the!
Comprehensive!Compact.!

The! MOA8AD! provides! that! its!provisions! requiring! "amendments! to! the! existing!
legal!framework"!shall!take!effect!upon!signing!of!the!Comprehensive!Compact!and!
upon!effecting!the!aforesaid!amendments,!with!due!regard!to!the!nondderogation'
of' prior' agreements!and! within! the! stipulated! timeframe! to! be! contained! in! the!
Comprehensive!Compact.!
The! Solicitor! General! argues! that! there! is! no! justiciable! controversy! that! is! ripe! for!
judicial!review!

The! MOA8AD! remains! to! be! a! proposal! that! does! not! automatically! create! legally!
demandable! rights! and! obligations! until! the! list! of! operative! acts! required! have!
been!duly!complied!with.!

!
Issues:'
1.! Whether! or! not! the! issue! is! considered! moot! and! academic,! thereby! divesting! the! court!
from!ruling!on!it.!

No.!MOA8AD!did!not!push!through!because!of!the!TRO.!
2.!!Whether!or!not!the!right!to!information!of!public!concern!is!violated.!

Yes.!
3.!Whether!or!not!the!MOA8AD!is!unconstitutional.!

Yes.!
'
Ratio:'
Mootness#

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The!non8signing!of!the!MOA8AD!and!the!eventual!dissolution!of!the!GRP!Peace!Panel!did!
not!moot!the!present!petitions.!It!bears!emphasis!that!the!signing!of!the!MOA8AD!did!
not!push!through!due!to!the!Court's!issuance!of!a!Temporary!Restraining!Order!

Respondents!insist!that!the!present!petitions!have!been!rendered!moot!and!it!has!
only!become!a!mere!list!of!concessions.'

Given! its!nomenclature,! the!need! to! have! it! signed! or! initialed!by! all! the! parties!
concerned! on! August! 5,! 2008,! and! the!far8reaching! Constitutional! implications!of!
these!"consensus!points,"!foremost!of!which!is!the!creation!of!the!BJE.!

It! is! also! imbued! with! public! interest! involving! a! significant! part! of! the! country's!
territory!and!the!wide8ranging!political!modifications!of!affected!LGUs.!
In! the! present! controversy,!the! MOA8AD! is! a!significant! part! of! a! series' of'
agreements!necessary!to!carry!out!the!Tripoli!Agreement!2001.!

The!MOA8AD!which!dwells!on!the!Ancestral!Domain!Aspect!of!said!Tripoli!
Agreement!is!the!third!such!component!of!the!2001!and!2002!talks.!

Surely,!the!present!MOA8AD!can!be!renegotiated!or!another!one!will!be!
drawn!up'to' carry' out' the' Ancestral' Domain' Aspect' of' the' Tripoli'
Agreement' 2001,!in!another!or!in!any!form,!which!could!contain!similar!
or!significantly!drastic!provisions.!

A'decision'on'the'merits'in'the'present'petitions''is'needed'to'formulate'
controlling'principles'to'guide'the'bench,'the'bar,'the'public'and,'most'
especially,' the' government' in' negotiating' with' the' MILF' regarding'
Ancestral'Domain.'

'
Right#to#Information#
o Art.!III!Sec.!7.!The!right!of!the!people!to!information!on!matters!of!public!concern!shall!
be! recognized.! Access! to! official! records,! and! to! documents,! and! papers! pertaining! to!
official!acts,!transactions,!or!decisions,!as!well!as!to!government!research!data!used!as!
basis!for!policy!development,!shall!be!afforded!the!citizen,!subject!to!such!limitations!as!
may!be!provided!by!law.!

Undoubtedly,! the! MOA8AD! subject! of! the! present! cases! is! of! public! concern,!
involving! as! it! does! the! sovereignty! and! territorial! integrity! of! the! State,! which!
directly!affects!the!lives!of!the!public!at!large.!

The! preambulatory! clause! of! E.O.! No.! 3! declares! that! there! is! a! need! to! further!
enhance! the! contribution! of! civil! society! to! the! comprehensive! peace! process! by!
institutionalizing!the!people's!participation.!

In! fine,! E.O.! No.! 3! establishes! petitioners'! right! to! be! consulted! on! the! peace!
agenda,!as!a!corollary!to!the!constitutional!right!to!information!and!disclosure.!

The! PAPP! committed! grave! abuse! of! discretion! when! he! failed! to! carry! out! the!
pertinent! consultation.! The! furtive! process! by! which! the! MOA8AD! was! designed!

'

and!crafted!runs!contrary!to!and!in!excess!of!the!legal!authority,!and!amounts!to!a!
whimsical,!capricious,!oppressive,!arbitrary!and!despotic!exercise!thereof.!

!
Constitutionality!(Ill!skip!the!other!rations!na)!
Associative!relationship!
o On!the!Associative!relationship!between!the!BJE!and!the!Government!

Keithner! and! Reisman! states! that,[! a]n! association! is! formed! when! two! states! of!
unequal! power! voluntarily! establish! durable! links.! In! the! basic! model,! one' state,!
the! associate,! delegates! certain! responsibilities! to! the! other,! the! principal,! while!
maintaining!its!international!status!as!a!state.!i.e.!US8Federate!States!of!Micronesia!

Micronesia!has!the!capacity!to!conduct!foreign!affairs!in!their!own!name!and!right,!
such! capacity! extending! to! matters! such! as! the! law! of! the! sea,! marine! resources,!
trade,!banking,!postal,!civil!aviation,!and!cultural!relations.!

In!international!practice,!the!"associated!state"!arrangement!has!usually!been!used!
as! a! transitional! device! of! former! colonies! on! their! way! to! full! independence.! i.e.!
Grenada!
o MOA8AD! contains! many! provisions! which! are! consistent! with! the! international! legal!
concept!of!association!

The!BJE's!capacity!to!enter!into!economic!and!trade!relations!with!foreign!countries!

The! commitment! of! the! Central! Government! to! ensure! the! BJE's! participation! in!
meetings!and!events!in!the!ASEAN!and!the!specialized!UN!agencies.!

BJE's! right! to! participate!in! Philippine! official! missions! bearing! on! negotiation! of!
border!agreements,!environmental!protection,!and!sharing!of!revenues!pertaining!
to! the! bodies! of! water! adjacent! to! or! between! the! islands! forming! part! of! the!
ancestral!domain.!

Resembles!the!right!of!the!governments!of!Micronesia!and!the!Marshall!Islands!to!
be!consulted!by!the!U.S.!government!on!any!foreign!affairs!matter!affecting!them.!
!
o The!concept!of!association!is!not!recognized!under!the!present!Constitution!

It!also!implies!the!recognition!of!the!associated#entity!as!a!state.!!

The! Constitution,! however,! does! not! contemplate! any! state! in! this! jurisdiction!
other! than! the! Philippine! State,! much! less! does! it! provide! for! a! transitory! status!
that!aims!to!prepare!any!part!of!Philippine!territory!for!independence.!

Even! the! mere! concept! of! the! MOA8AD! requires! amendment! of! constitutional!
provisions.! Specifically! Art.! X! Sec.! 1! (Political! subdivision,! provinces,! cities,!
municipalities,! and! barangays)! and! Sec.! 15! (ARMM! be! created,! xxx! within! the!
framework! of! this! Constitution! and! the! national! sovereignty! as! well! as! territorial!
integrity!of!the!Republic!of!the!Philippines)!
!
!

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Bangsamoro!Juridical!Entity!
o The! BJE! is! a! far! more! powerful! entity! than! the! autonomous! region! recognized! in! the!
Constitution!

BJE'is'a'state'in'all'but'name'as'it'meets'the'criteria'of'a'state'laid'down'in'the'
!
Montevideo' Convention, namely,! a!permanent! population,! a!defined! territory,!
a!government,!and!a!capacity!to!enter!into!relations!with!other!states!

Even!assuming!arguendo!that!the!MOA8AD!would!not!necessarily!sever!any!portion!
of!Philippine!territory,!the!spirit!animating!it!8!which!has!betrayed!itself!by!its!use!of!
the!concept!of!association!8!runs!counter!to!the!national!sovereignty!and!territorial!
integrity!of!the!Republic.!

The! municipalities! of! Lanao! del! Norte! which! voted! for! inclusion! in! the! ARMM!
during!the!2001!plebiscite!8!Baloi,!Munai,!Nunungan,!Pantar,!Tagoloan!and!Tangkal!
8! are! automatically! part! of! the! BJE! without! need! of! another! plebiscite.! These!
municipalities!voted!for!the!inclusion!in!the!ARMM!and!not!in!the!BJE.!
!
Indigenous#peoples#
o Article! X,! Section! 3! of! the! Organic! Act! of! the! ARMM! is! a! bar! to! the! adoption! of! the!
definition!of!"Bangsamoro!people"!used!in!the!MOA8AD.!

The!Organic!act!of!ARMM!distinguishes!between!the!two,!!
(a)!Tribal!peoples.!These!are!citizens!whose!social,!cultural!and!economic!
conditions! distinguish! them! from! other! sectors! of! the! national!
community;!and!
!
(b)!Bangsa! Moro! people.! These! are! citizens! who! are!believers! in!
Islam!and!who! have! retained! some! or! all! of! their! own! social,! economic,!
cultural,!and!political!institutions."!
!
o Respecting! the! IPRA,! it! lays! down! the! prevailing! procedure! for! the! delineation! and!
recognition! of! ancestral! domains.! The! MOA8AD's! manner! of! delineating! the! ancestral!
domain!of!the!Bangsamoro!people!is!a!clear!departure!from!that!procedure.!

Under!the!MOAdAD,![t]he!Bangsamoro!homeland!and!historic!territory!refer!to!the!
land!mass!as!well!as!the!maritime,!terrestrial,!fluvial!and!alluvial!domains,!and!the!
aerial! domain,! the! atmospheric! space! above! it,! embracing! the! Mindanao8Sulu8
Palawan!geographic!region.!

Under! IPRA,! a! petition! must! be! initiated! by! the! NCIP! with! the! consent! of! the! IPs,!
the! delineation! will! be! in! coordination! with! the! community! concerned,! it! will!
require!the!proof!including!the!testimony!of!elders!or!community!under!oath,!and!
other!documents!directly!or!indirectly!attesting!to!the!possession!or!occupation!of!
the!area,!etc.!

'

Article' II,' Section' 2' of' the' Constitution' states' that' the' Philippines' "adopts' the'
generally'accepted'principles'of'international'law'as'part'of'the'law'of'the'land."!

In! Mejoff# v.# Director# of# Prisons,! the! court,! held! that! the! Universal! Declaration! of!
Human!Rights!(UDHR)!is!part!of!the!law!of!the!land.!!

International!law!has!long!recognized!the!right!to!self8determination!of!"peoples,"!
understood! not! merely! as! the! entire! population! of! a! State! but! also! a! portion!
thereof.!This!was!emphasized!in!the!case!of!Quebec!when!it!seceded!from!Canada.!

The! International! Covenant! on! Civil! and! Political! Rights! and! the! International!
Covenant!on!Economic,!Social!and!Cultural!Rights!which!state,!in!Article!1!of!both!
covenants,! that! all! peoples,! by! virtue! of! the! right! of! self8determination,! "freely!
determine! their! political! status! and! freely! pursue! their! economic,! social,! and!
cultural!development."!

A! distinction! should! be! made! between! the! right! of! internal! and! external! self8
determination.!

In!a!Reference!!Re!the!Secession!of!Quebec,!
!Right! to! self8determination! of! a! people! is! normally! fulfilled!
through!internal'selfddetermination'8!a! people's! pursuit! of! its! political,!
economic,! social! and! cultural! development! within! the! framework! of! an!
existing!state.!!
!
A! right' to' external' selfddetermination! (which! in! this! case! potentially!
takes!the!form!of!the!assertion!of!a!right!to!unilateral!secession)!arises!in!
only!the!most!extreme!of!cases!and,!even!then,!under!carefully!defined!
circumstances.!!
!
The!Canadian!court!ultimately!denied!the!secession!of!Quebec!because!it!
was! not! under! colonial! rule! as! contemplated! in! external! self8
determination! and! they! were! free! to! pursue! political! and! economic!
choices.!

In! REPORT! OF! THE! INTERNATIONAL! COMMITTEE! OF! JURISTS! ON! THE! LEGAL!
ASPECTS!OF!THE!AALAND!ISLANDS!QUESTION,!Sweden!presented!to!the!League!of!
Nations!the!question!whether!the!inhabitants!of!the!island!should!be!determined!if!
it! should! remain! under! Finnish! rule! or! be! incorporated! with! Sweden.! The! Court!
Held:!
The! right! of! disposing! of! national! territory! is! essentially! an!
attribute! of! the! sovereignty! of! every! State.! Positive!
International! Law! does! not! recognize! the! right! of! national!
groups,! as! such,! to! separate! themselves! from! the! State! of!
which!they!form!part!by!the!simple!expression!of!a!wish!

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In! September! 13,! 2007,! the! UN! General! Assembly! adopted! the! United! Nations!
Declaration! on! the! Rights! of! Indigenous! Peoples! (UN! DRIP)! through! General! Assembly!
Resolution!61/295.!!
Under!Art.!3!of!such!declaration!acknowledge!the!right!of!self8determination,!
Under!Art.!5!its!exercise!shall!include!the!right!to!autonomy!or!self8government!in!
matters!relating!to!their!internal!and!local!affairs.'!
Under! Art.! 26,! Indigenous! peoples! have! the! right! to! the! lands,! territories! and!
resources! which! they! have! traditionally! owned,! occupied! or! otherwise! used! or!
acquired.!

The! obligations! enumerated! therein(UNDRIP),unlike! the! UDHR,! do! not! strictly!


require!the!Republic!to!grant!the!Bangsamoro!people,!through!the!instrumentality!
of!the!BJE,!the!particular!rights!and!powers!provided!for!in!the!MOA8AD.!!

The!UN!DRIP,!while!upholding!the!right!of!indigenous!peoples!to!autonomy,!does!
not!obligate!States!to!grant!indigenous!peoples!the!near8independent!status!of!an!
associated!state.!

Even!under!Art.!46!of!the!said!declaration,!recognizes!that!it!cannot!be!construed!
as!authorizing!or!encouraging!any!action!which!would!dismember!or!impair,!totally!
or! in! part,! the! territorial! integrity! or! political! unity! of! sovereign! and! independent!
States.!

It! is,! therefore,! clear! that! the! MOA8AD! contains! numerous! provisions! that! cannot!
be!reconciled!with!the!Constitution!and!the!laws!as!presently!worded.!
!
By!the!time!these!changes!are!put!in!place,!the!MOA8AD!itself!would!be!counted!among!
the!"prior!agreements"!from!which!there!could!be!no!derogation.!

The! provision! in! question! states,! "with! due! regard! to! non! derogation! of!
prior!agreements!and!within!the!stipulated!timeframe!to!be!contained!in!
the!Comprehensive!Compact."!

Plainly,!stipulation8paragraph!7!on!GOVERNANCE!is!inconsistent!with!the!
limits!of!the!President's!authority!to!propose!constitutional!amendments,!
it! being! a! virtual! guarantee! that! the! Constitution! and! the! laws! of! the!
Republic!of!the!Philippines!will!certainly!be!adjusted!to!conform!to!all!the!
"consensus!points"!found!in!the!MOA8AD.Hence,!it!must!be!struck!down!
as!unconstitutional.!

A! similar! provision! is! found! with! the! GRP8MNLF! agreement,! however!


there! is! a! stark! difference.! While! the! MOA8AD! virtually! guarantees! that!
the!"necessary!changes!to!the!legal!framework"!will!be!put!in!place,!the!
GRP8MNLF! final! peace! agreement! states! thus:! "Accordingly,! these!
provisions! shall! be! recommended! by! the! GRP! to! Congress! for!
incorporation!in!the!amendatory!or!repealing!law."!

'

Does! the! MOA8AD! give! rise! to! an! internationally! binding! agreement! or! a! binding!
unilateral!declaration?!NO!
!
The! contention! was! that! the! inclusion! of! foreign! dignitaries! and! presence! of! other!
nations! for! the! signing! in! Kuala! Lumpur! gave! rise! to! an! internationally! binding!
agreement.!

In! the! Lom' Accord' case,! the! Defence! argued! that! the! Accord! created!
an!internationally' binding!obligation! not! to! prosecute! the! beneficiaries! of! the!
amnesty! provided! therein,!citing,! among! other! things,! the! participation! of! foreign!
dignitaries! and! international! organizations! in! the! finalization! of! that! agreement.!
This!was!however!denied,!it!held:!
The! non8contracting! signatories! of! the! Lom! Agreement!
were!moral! guarantors!of! the! principle! that,! in! the! terms! of!
Article! XXXIV! of! the! Agreement,! "this! peace! agreement! is!
implemented!with!integrity!and!in!good!faith!by!both!parties".!
The!moral!guarantors!assumed!no!legal!obligation.!

The! Lom! Agreement! created! neither! rights! nor! obligations! capable! of! being!
regulated!by!international!law.!An!agreement!such!as!the!Lom!Agreement!which!
brings!to!an!end!an!internal!armed!conflict!no!doubt!creates!a!factual!situation!of!
restoration!of!peace!that!the!international!community!acting!through!the!Security!
Council! may! take! note! of.! That,! however,! will! not! convert! it! to! an! international!
agreement! which! creates! an! obligation! enforceable! in! international,! as!
distinguished!from!municipal,!law.!

Similarly,! that! the! MOA8AD! would! have! been! signed! by! representatives! of! States!
and! international! organizations! not! parties! to! the! Agreement! would! not! have!
sufficed!to!vest!in!it!a!binding!character!under!international!law.!
!
Concern!has!been!raised!that!the!MOA8AD!would!amount!to!a!unilateral!declaration!of!
the!Philippine!State,!binding!under!international!law.!

In!the!Nuclear!tests!case(Australia!v.!France),!When!it!is!the!intention!of!the!State!
making! the! declaration! that! it! should! become! bound! according! to! its! terms,! that!
intention!confers!on!the!declaration!the!character!of!a!legal!undertaking,!the!State!
being!thenceforth!legally!required!to!follow!a!course!of!conduct!consistent!with!the!
declaration.!

The!requisites!are!(1)!With!an!intent!to!be!bound,!even!though!not!made!within!the!
context!of!international!negotiations,!(2)!with!an!intent!to!be!bound,!even!though!
not!made!within!the!context!of!international!negotiations!and!(3)!not!to!give!legal!
effect! to! those! statements! would! be! detrimental! to! the! security! of! international!
intercourse.!

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The!present!case!does!not!amount!to!such!binding!declaration;!the!Philippine!panel!
did! not! draft! the! same! with! the! clear! intention! of! being! bound! thereby! to! the!
international!community!as!a!whole!or!to!any!State,!but!only!to!the!MILF.!

While! there! were! States! and! international! organizations! involved,! one! way! or!
another,!in!the!negotiation!and!projected!signing!of!the!MOA8AD,!they!participated!
merely!as!witnesses!or,!in!the!case!of!Malaysia,!as!facilitator.!
WHEREFORE,!respondents'!motion!to!dismiss!is!DENIED.!The!main!and!intervening!petitions!
are!GIVEN!DUE!COURSE!and!hereby!GRANTED.!

8. Bayan'Muna'v.'Romulo'(MT)'
Topic:!Treaties!
Treaty/'Law:!Rome!Statute!&!RP8US!Non8Surrender!Agreement!
G.R.!No.!159618!February!1,!2011!
Petitioner:!BAYAN!MUNA,!as!represented!by!Rep.!SATUR!OCAMPO,!Rep.!CRISPIN!BELTRAN,!
and!Rep.!LIZA!L.!MAZA!
Respondent:!ALBERTO!ROMULO,!in!his!capacity!as!Executive!Secretary,!and!BLAS!F.!OPLE,!in!
his!capacity!as!Secretary!of!Foreign!Affairs!
Ponente:!VELASCO,!JR.,!J.:!
!
Facts:''

This!petition!for!certiorari,!mandamus!and!prohibition!under!Rule!65!assails!and!
seeks!to!nullify!the!Non8Surrender!Agreement!concluded!by!and!between!the!
Republic!of!the!Philippines!(RP)!and!the!United!States!of!America!(USA).!

Petitioner!Bayan!Muna!is!a!duly!registered!party8list!group!established!to!represent!
the!marginalized!sectors!of!society.!!
Rome'Statute'of'the'International'Criminal'Court'
!

Having!a!key!determinative!bearing!on!this!case!is!the!Rome!Statute establishing!
the!International!Criminal!Court!(ICC)!with!"the#power#to#exercise#its#jurisdiction#
over#persons#for#the#most#serious#crimes#of#international#concern#x!x!x!and#shall#be#
!
complementary#to#the#national#criminal#jurisdictions." The!serious!crimes!adverted!
to!cover!those!considered!grave!under!international!law,!such!as!genocide,!crimes!
against!humanity,!war!crimes,!and!crimes!of!aggression.!

On!December!28,!2000,!the!RP,!through!Charge!dAffaires!Enrique!A.!Manalo,!
signed!the!Rome!Statute!which,!by!its!terms,!is!"subject!to!ratification,!acceptance!
or!approval"!by!the!signatory!states.!
RPdUS'NondSurrender'Agreement'

On!May!9,!2003,!then!Ambassador!Francis!J.!Ricciardone!sent!US!Embassy!Note!No.!
0470!to!the!Department!of!Foreign!Affairs!(DFA)!proposing!the!terms!of!the!non8
surrender!bilateral!agreement!(Agreement)!between!the!USA!and!the!RP.!

'

Via!Exchange!of!Notes!No.!BFO8028803 !dated!May!13,!2003!(E/N!BFO8028803,!
hereinafter),!the!RP,!represented!by!then!DFA!Secretary!Ople,!agreed!with!and!
accepted!the!US!proposals!embodied!under!the!US!Embassy!Note!adverted!to!and!
put!in!effect!the!Agreement!with!the!US!government.!The!Agreement!aims!to!
protect!what!it!refers!to!and!defines!as!"persons"!of!the!RP!and!US!from!frivolous!
and!harassment!suits!that!might!be!brought!against!them!in!international!tribunals.!
It!is!reflective!of!the!increasing!pace!of!the!strategic!security!and!defense!
partnership!between!the!two!countries.!!

In!response!to!a!query!of!then!Solicitor!General!Alfredo!L.!Benipayo!on!the!status!of!
the!non8surrender!agreement,!Ambassador!Ricciardone!replied!in!his!letter!of!
October!28,!2003!that!the!exchange!of!diplomatic!notes!constituted!a!legally!
binding!agreement!under!international!law;!and!that,!under!US!law,!the!said!
agreement!did!not!require!the!advice!and!consent!of!the!US!Senate.!

In!this!proceeding,!petitioner!imputes!grave!abuse!of!discretion!to!respondents!in!
concluding!and!ratifying!the!Agreement!and!prays!that!it!be!struck!down!as!
unconstitutional,!or!at!least!declared!as!without!force!and!effect.!

For!their!part,!respondents!question!petitioners!standing!to!maintain!a!suit!and!
counter!that!the!Agreement,!being!in!the!nature!of!an!executive!agreement,!does!
not!require!Senate!concurrence!for!its!efficacy.!And!for!reasons!detailed!in!their!
comment,!respondents!assert!the!constitutionality!of!the!Agreement.!
The'Issues/'held:'
The!foregoing!issues!may!be!summarized!into!two:!!
1. WON!the!Agreement!was!contracted!validly,!which!resolves!itself!into!the!question!
of!whether!or!not!respondents!gravely!abused!their!discretion!in!concluding!it
YES!
2. WON!the!Agreement,!which!has!not!been!submitted!to!the!Senate!for!concurrence,!
contravenes!and!undermines!the!Rome!Statute!and!other!treatiesNO'!
!
Ratio:!This!petition!is!bereft!of!merit.!
Validity'of'the'RPdUS'NondSurrender'Agreement'

Petitioners!initial!challenge!against!the!Agreement!relates!to!form,!its!threshold!
posture!being!that!E/N!BFO8028803!cannot!be!a!valid!medium!for!concluding!
the!Agreement.!

Petitioners!contention!is!untenable.!One!of!these!is!the!doctrine!of!incorporation,!
as!expressed!in!Section!2,!Article!II!of!the!Constitution,!wherein!the!Philippines!
adopts!the!generally!accepted!principles!of!international!law!and!international!
jurisprudence!as!part!of!the!law!of!the!land!and!adheres!to!the!policy!of!peace,!
cooperation,!and!amity!with!all!nations.!An!exchange!of!notes!falls!"into!the!
!
category!of!inter8governmental!agreements, which!is!an!internationally!accepted!

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form!of!international!agreement.!The!United!Nations!Treaty!Collections!(Treaty!
Reference!Guide)!defines!the!term!as!follows:!
An!"exchange!of!notes"!is!a!record!of!a!routine!agreement,!that!has!many!
similarities!with!the!private!law!contract.!The!agreement!consists!of!the!exchange!
of!two!documents,!each!of!the!parties!being!in!the!possession!of!the!one!signed!by!
the!representative!of!the!other.!Under!the!usual!procedure,!the!accepting!State!
repeats!the!text!of!the!offering!State!to!record!its!assent.!The!signatories!of!the!
letters!may!be!government!Ministers,!diplomats!or!departmental!heads.!The!
technique!of!exchange!of!notes!is!frequently!resorted!to,!either!because!of!its!
speedy!procedure,!or,!sometimes,!to!avoid!the!process!of!legislative!approval.!

In!another!perspective,!the!terms!"exchange!of!notes"!and!"executive!agreements"!
have!been!used!interchangeably,!exchange!of!notes!being!considered!a!form!of!
executive!agreement!that!becomes!binding!through!executive!action.!!
Senate'Concurrence'Not'Required'

Article!2!of!the!Vienna!Convention!on!the!Law!of!Treaties!defines!a!treaty!as!"an!
international!agreement!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.!International!
agreements!may!be!in!the!form!of!(1)!treaties!that!require!legislative!concurrence!
after!executive!ratification;!or!(2)!executive!agreements!that!are!similar!to!treaties,!
except!that!they!do!not!require!legislative!concurrence!and!are!usually!less!formal!
and!deal!with!a!narrower!range!of!subject!matters!than!treaties.!

Under!international!law,!there!is!no!difference!between!treaties!and!executive!
agreements!in!terms!of!their!binding!effects!on!the!contracting!states!concerned,!
as!long!as!the!negotiating!functionaries!have!remained!within!their!powers.!
Neither,!on!the!domestic!sphere,!can!one!be!held!valid!if!it!violates!the!
Constitution.!

The!Court!has!given!recognition!to!the!obligatory!effect!of!executive!agreements!
without!the!concurrence!of!the!Senate:!
x!x!x![T]he!right!of!the!Executive!to!enter!into!binding!agreements!without!the!
necessity!of!subsequent!Congressional!approval!has!been!confirmed!by!long!usage.!
From!the!earliest!days!of!our!history,!we!have!entered!executive!agreements!
covering!such!subjects!as!commercial!and!consular!relations,!most!favored8nation!
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.!
The'Agreement'Not'in'Contravention'of'the'Rome'Statute'

It!is!the!petitioners!next!contention!that!the!Agreement!undermines!the!
establishment!of!the!ICC!and!is!null!and!void!insofar!as!it!unduly!restricts!the!ICCs!
jurisdiction!and!infringes!upon!the!effectivity!of!the!Rome!Statute.!Petitioner!posits!

'

that!the!Agreement!was!constituted!solely!for!the!purpose!of!providing!individuals!
or!groups!of!individuals!with!immunity!from!the!jurisdiction!of!the!ICC;!and!such!
grant!of!immunity!through!non8surrender!agreements!allegedly!does!not!
legitimately!fall!within!the!scope!of!Art.!98!of!the!Rome!Statute.!!
Contrary!to!petitioners!pretense,!the!Agreement!does!not!contravene!or!
undermine,!nor!does!it!differ!from,!the!Rome!Statute.!Far!from!going!against!each!
other,!one!complements!the!other.!As!a!matter!of!fact,!the!principle!of!
complementarity!underpins!the!creation!of!the!ICC.!As!aptly!pointed!out!by!
respondents!and!admitted!by!petitioners,!the!jurisdiction!of!the!ICC!is!to!"be!
!
complementary!to!national!criminal!jurisdictions![of!the!signatory!states]." Art.!1!of!
the!Rome!Statute!pertinently!provides:!
Article!1.!The!Court.!An!International!Crimininal!Court!("the!Court")!is!hereby!
established.!It!x!x!x!shall!have!the!power!to!exercise!its!jurisdiction!over!persons!for!
the!most!serious!crimes!of!international!concern,!as!referred!to!in!this!Statute,!
and!shall!be!complementary!to!national!criminal!jurisdictions.!The!jurisdiction!and!
functioning!of!the!Court!shall!be!governed!by!the!provisions!of!this!Statute.!!
The!foregoing!provisions!of!the!Rome!Statute,!taken!collectively,!argue!against!the!
idea!of!jurisdictional!conflict!between!the!Philippines,!as!party!to!the!non8
surrender!agreement,!and!the!ICC;!or!the!idea!of!the!Agreement!substantially!
impairing!the!value!of!the!RPs!undertaking!under!the!Rome!Statute.!Ignoring!for!a!
while!the!fact!that!the!RP!signed!the!Rome!Statute!ahead!of!the!Agreement,!it!is!
abundantly!clear!to!us!that!the!Rome!Statute!expressly!recognizes!the!primary!
jurisdiction!of!states,!like!the!RP,!over!serious!crimes!committed!within!their!
respective!borders,!the!complementary!jurisdiction!of!the!ICC!coming!into!play!only!
when!the!signatory!states!are!unwilling!or!unable!to!prosecute.!
Given!the!above!consideration,!petitioners!suggestionthat!the!RP,!by!entering!
into!the!Agreement,!violated!its!duty!required!by!the!imperatives!of!good!faith!and!
breached!its!commitment!under!the!Vienna!Convention!to!refrain!from!performing!
any!act!tending!to!impair!the!value!of!a!treaty,!e.g.,!the!Rome!Statutehas!to!be!
rejected!outright.!For!nothing!in!the!provisions!of!the!Agreement,!in!relation!to!the!
Rome!Statute,!tends!to!diminish!the!efficacy!of!the!Statute,!let!alone!defeats!the!
purpose!of!the!ICC.!Lest!it!be!overlooked,!the!Rome!Statute!contains!a!proviso!that!
enjoins!the!ICC!from!seeking!the!surrender!of!an!erring!person,!should!the!process!
require!the!requested!state!to!perform!an!act!that!would!violate!some!
international!agreement!it!has!entered!into.!!
Moreover,!under!international!law,!there!is!a!considerable!difference!between!a!
State8Party!and!a!signatory!to!a!treaty.!Under!the!Vienna!Convention!on!the!Law!of!
Treaties,!a!signatory!state!is!only!obliged!to!refrain!from!acts!which!would!defeat!
the!object!and!purpose!of!a!treaty,!whereas!a!State8Party,!on!the!other!hand,!is!
legally!obliged!to!follow!all!the!provisions!of!a!treaty!in!good!faith.!

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In!the!instant!case,!it!bears!stressing!that!the!Philippines!is!only!a!signatory!to!the!
Rome!Statute!and!not!a!State8Party!for!lack!of!ratification!by!the!Senate.!Thus,!it!is!
only!obliged!to!refrain!from!acts,!which!would!defeat!the!object!and!purpose!of!the!
Rome!Statute.!Any!argument!obliging!the!Philippines!to!follow!any!provision!in!the!
treaty!would!be!premature.!

Furthermore,!a!careful!reading!of!said!Art.!90!would!show!that!the!Agreement!is!
not!incompatible!with!the!Rome!Statute.!Specifically,!Art.!90(4)!provides!that!"[i]f!
the!requesting!State!is!a!State!not!Party!to!this!Statute!the!requested!State,!if!it!is!
not!under!an!international!obligation!to!extradite!the!person!to!the!requesting!
State,!shall!give!priority!to!the!request!for!surrender!from!the!Court.!x!x!x"!In!
applying!the!provision,!certain!undisputed!facts!should!be!pointed!out:!first,!the!US!
is!neither!a!State8Party!nor!a!signatory!to!the!Rome!Statute;!and!second,!there!is!an!
international!agreement!between!the!US!and!the!Philippines!regarding!extradition!
or!surrender!of!persons,!i.e.,!the!Agreement.!Clearly,!even!assuming!that!the!
Philippines!is!a!State8Party,!the!Rome!Statute!still!recognizes!the!primacy!of!
international!agreements!entered!into!between!States,!even!when!one!of!the!
States!is!not!a!State8Party!to!the!Rome!Statute.!
Sovereignty'Limited'by'International'Agreements'

Petitioner!next!argues!that!the!RP!has,!through!the!Agreement,!abdicated!its!
sovereignty!by!bargaining!away!the!jurisdiction!of!the!ICC!to!prosecute!US!
nationals,!government!officials/employees!or!military!personnel!who!commit!
serious!crimes!of!international!concerns!in!the!Philippines.!!

We!are!not!persuaded.!As!it!were,!the!Agreement!is!but!a!form!of!affirmance!and!
confirmance!of!the!Philippines!national!criminal!jurisdiction.!National!criminal!
jurisdiction!being!primary,!as!explained!above,!it!is!always!the!responsibility!and!
within!the!prerogative!of!the!RP!either!to!prosecute!criminal!offenses!equally!
covered!by!the!Rome!Statute!or!to!accede!to!the!jurisdiction!of!the!ICC.!Thus,!the!
Philippines!may!decide!to!try!"persons"!of!the!US,!as!the!term!is!understood!in!
the!Agreement,!under!our!national!criminal!justice!system.!Or!it!may!opt!not!to!
exercise!its!criminal!jurisdiction!over!its!erring!citizens!or!over!US!"persons"!
committing!high!crimes!in!the!country!and!defer!to!the!secondary!criminal!
jurisdiction!of!the!ICC!over!them.!

!As!to!"persons"!of!the!US!whom!the!Philippines!refuses!to!prosecute,!the!country!
would,!in!effect,!accord!discretion!to!the!US!to!exercise!either!its!national!criminal!
jurisdiction!over!the!"person"!concerned!or!to!give!its!consent!to!the!referral!of!the!
matter!to!the!ICC!for!trial.!In!the!same!breath,!the!US!must!extend!the!same!
privilege!to!the!Philippines!with!respect!to!"persons"!of!the!RP!committing!high!
crimes!within!US!territorial!jurisdiction.!

Nothing!in!the!Constitution!prohibits!such!agreements!recognizing!immunity!from!
jurisdiction!or!some!aspects!of!jurisdiction!(such!as!custody),!in!relation!to!long8

'

recognized!subjects!of!such!immunity!like!Heads!of!State,!diplomats!and!members!
of!the!armed!forces!contingents!of!a!foreign!State!allowed!to!enter!another!States!
territory.!!

To!be!sure,!the!nullity!of!the!subject!non8surrender!agreement!cannot!be!
predicated!on!the!postulate!that!some!of!its!provisions!constitute!a!virtual!
abdication!of!its!sovereignty.!Almost!every!time!a!state!enters!into!an!international!
agreement,!it!voluntarily!sheds!off!part!of!its!sovereignty.!The!Constitution,!as!
drafted,!did!not!envision!a!reclusive!Philippines!isolated!from!the!rest!of!the!world.!
It!even!adheres,!as!earlier!stated,!to!the!policy!of!cooperation!and!amity!with!all!
nations.!

By!their!nature,!treaties!and!international!agreements!actually!have!a!limiting!
effect!on!the!otherwise!encompassing!and!absolute!nature!of!sovereignty.!By!their!
voluntary!act,!nations!may!decide!to!surrender!or!waive!some!aspects!of!their!state!
power!or!agree!to!limit!the!exercise!of!their!otherwise!exclusive!and!absolute!
jurisdiction.!The!usual!underlying!consideration!in!this!partial!surrender!may!be!the!
greater!benefits!derived!from!a!pact!or!a!reciprocal!undertaking!of!one!contracting!
party!to!grant!the!same!privileges!or!immunities!to!the!other.!!
Agreement'Not'Immoral/Not'at'Variance'with'Principles'of'International'Law'

Petitioner!urges!that!the!Agreement!be!struck!down!as!void!ab#initio!for!imposing!
immoral!obligations!and/or!being!at!variance!with!allegedly!universally!recognized!
principles!of!international!law.!The!immoral!aspect!proceeds!from!the!fact!that!
the!Agreement,!as!petitioner!would!put!it,!"leaves!criminals!immune!from!
responsibility!for!unimaginable!atrocities!that!deeply!shock!the!conscience!of!
humanity;!x!x!x!it!precludes!our!country!from!delivering!an!American!criminal!to!
the![ICC]!x!x!x."!

The!Court!is!not!persuaded.!Suffice!it!to!state!in!this!regard!that!the!non8surrender!
agreement,!as!aptly!described!by!the!Solicitor!General,!"is!an!assertion!by!the!
Philippines!of!its!desire!to!try!and!punish!crimes!under!its!national!law.!x!x!x!The!
agreement!is!a!recognition!of!the!primacy!and!competence!of!the!countrys!
judiciary!to!try!offenses!under!its!national!criminal!laws!and!dispense!justice!fairly!
and!judiciously."!

Persons!who!may!have!committed!acts!penalized!under!the!Rome!Statute!can!be!
prosecuted!and!punished!in!the!Philippines!or!in!the!US;!or!with!the!consent!of!the!
RP!or!the!US,!before!the!ICC,!assuming,!for!the!nonce,!that!all!the!formalities!
necessary!to!bind!both!countries!to!the!Rome!Statute!have!been!met.!For!
perspective,!what!the!Agreement!contextually!prohibits!is!the!surrender!by!either!
party!of!individuals!to!international!tribunals,!like!the!ICC,!without!the!consent!of!
the!other!party,!which!may!desire!to!prosecute!the!crime!under!its!existing!laws.!
With!the!view!we!take!of!things,!there!is!nothing!immoral!or!violative!of!
international!law!concepts!in!the!act!of!the!Philippines!of!assuming!criminal!

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jurisdiction!pursuant!to!the!non8surrender!agreement!over!an!offense!considered!
criminal!by!both!Philippine!laws!and!the!Rome!Statute.!
No'Grave'Abuse'of'Discretion'

Petitioners!final!point!revolves!around!the!necessity!of!the!Senates!concurrence!in!
the!Agreement.!And!without!specifically!saying!so,!petitioner!would!argue!that!the!
non8surrender!agreement!was!executed!by!the!President,!thru!the!DFA!Secretary,!
in!grave!abuse!of!discretion.!

By!constitutional!fiat!and!by!the!nature!of!his!or!her!office,!the!President,!as!head!
of!state!and!government,!is!the!sole!organ!and!authority!in!the!external!affairs!of!
the!country.!The!Constitution!vests!in!the!President!the!power!to!enter!into!
international!agreements,!subject,!in!appropriate!cases,!to!the!required!
concurrence!votes!of!the!Senate.!But!as!earlier!indicated,!executive!agreements!
may!be!validly!entered!into!without!such!concurrence.!As!the!President!wields!vast!
powers!and!influence,!her!conduct!in!the!external!affairs!of!the!nation!is,!as!Bayan!
would!put!it,!"executive!altogether."!The!right!of!the!President!to!enter!into!or!
ratify!binding!executive!agreements!has!been!confirmed!by!long!practice.!

In!thus!agreeing!to!conclude!the!Agreement!thru!E/N!BFO8028803,!then!President!
Gloria!Macapagal8Arroyo,!represented!by!the!Secretary!of!Foreign!Affairs,!acted!
within!the!scope!of!the!authority!and!discretion!vested!in!her!by!the!Constitution.!
At!the!end!of!the!day,!the!Presidentby!ratifying,!thru!her!deputies,!the!non8
surrender!agreementdid!nothing!more!than!discharge!a!constitutional!duty!and!
exercise!a!prerogative!that!pertains!to!her!office.!
Agreement'Need'Not'Be'in'the'Form'of'a'Treaty'

On!December!11,!2009,!then!President!Arroyo!signed!into!law!Republic!Act!No.!
(RA)!9851,!otherwise!known!as!the!"Philippine!Act!on!Crimes!Against!International!
Humanitarian!Law,!Genocide,!and!Other!Crimes!Against!Humanity."!Sec.!17!of!RA!
9851,!particularly!the!second!paragraph!thereof,!provides:!
Section!17.!Jurisdiction.!In!the!interest!of!justice,!the!relevant!Philippine!
authorities!may!dispense!with!the!investigation!or!prosecution!of!a!crime!
punishable!under!this!Act!if!another!court!or!international!tribunal!is!already!
conducting!the!investigation!or!undertaking!the!prosecution!of!such!crime.!Instead,!
the!authorities!may!surrender!or!extradite!suspected!or!accused!persons!in!the!
Philippines!to!the!appropriate!international!court,!if!any,!or!to!another!State!
pursuant!to!the!applicable!extradition!laws!and!treaties.!!

A!view!is!advanced!that!the!Agreement#amends!existing!municipal!laws!on!the!
States!obligation!in!relation!to!grave!crimes!against!the!law!of!nations,!i.e.,!
genocide,!crimes!against!humanity!and!war!crimes.!Relying!on!the!above8quoted!
statutory!proviso,!the!view!posits!that!the!Philippine!is!required!to!surrender!to!the!
proper!international!tribunal!those!persons!accused!of!the!grave!crimes!defined!
under!RA!9851,!if!it!does!not!exercise!its!primary!jurisdiction!to!prosecute!them.!

'

The!basic!premise!rests!on!the!interpretation!that!if!it!does!not!decide!to!prosecute!
a!foreign!national!for!violations!of!RA!9851,!the!Philippines!has!only!two!options,!to!
wit:!(1)!surrender!the!accused!to!the!proper!international!tribunal;!or!(2)!surrender!
the!accused!to!another!State!if!such!surrender!is!"pursuant!to!the!applicable!
extradition!laws!and!treaties."!But!the!Philippines!may!exercise!these!options!only!
in!cases!where!"another!court!or!international!tribunal!is!already!conducting!the!
investigation!or!undertaking!the!prosecution!of!such!crime;"!otherwise,!the!
Philippines!must!prosecute!the!crime!before!its!own!courts!pursuant!to!RA!9851.!
Moreover,!consonant!with!the!foregoing!view,!citing!Sec.!2,!Art.!II!of!the!
Constitution,!where!the!Philippines!adopts,!as!a!national!policy,!the!"generally!
accepted!principles!of!international!law!as!part!of!the!law!of!the!land,"!the!Court!is!
further!impressed!to!perceive!the!Rome!Statute!as!declaratory!of!customary!
international!law.!In!other!words,!the!Statute!embodies!principles!of!law!which!
constitute!customary!international!law!or!custom!and!for!which!reason!it!assumes!
the!status!of!an!enforceable!domestic!law!in!the!context!of!the!aforecited!
constitutional!provision.!As!a!corollary,!it!is!argued!that!any!derogation!from!the!
Rome!Statute!principles!cannot!be!undertaken!via!a!mere!executive!agreement,!
which,!as!an!exclusive!act!of!the!executive!branch,!can!only!implement,!but!cannot!
amend!or!repeal,!an!existing!law.!The!Agreement,!so!the!argument!goes,!seeks!to!
frustrate!the!objects!of!the!principles!of!law!or!alters!customary!rules!embodied!in!
the!Rome!Statute.!
Moreover,!RA!9851!clearly:!(1)!defines!and!establishes!the!crimes!against!
international!humanitarian!law,!genocide!and!other!crimes!against!humanity;!(2)!
provides!penal!sanctions!and!criminal!liability!for!their!commission,!and!(3)!
establishes!special!courts!for!the!prosecution!of!these!crimes!and!for!the!State!to!
exercise!primary!criminal!jurisdiction.!Nowhere!in!RA!9851!is!there!a!proviso!that!
goes!against!the!tenor!of!the!Agreement.!
The!view!makes!much!of!the!above!quoted!second!par.!of!Sec.!17,!RA!9851!
as!requiring!the!Philippine!State!to!surrender!to!the!proper!international!tribunal!
those!persons!accused!of!crimes!sanctioned!under!said!law!if!it!does!not!exercise!
its!primary!jurisdiction!to!prosecute!such!persons.!This!view!is!not!entirely!correct,!
for!the!above!quoted!proviso!clearly!provides!discretion!to!the!Philippine!State!on!
whether!to!surrender!or!not!a!person!accused!of!the!crimes!under!RA!9851.!The!
statutory!proviso!uses!the!word!"may."!It!is!settled!doctrine!in!statutory!
construction!that!the!word!"may"!denotes!discretion,!and!cannot!be!construed!as!
having!mandatory!effect.Thus,!the!pertinent!second!pararagraph!of!Sec.!17,!RA!
9851!is!simply!permissive!on!the!part!of!the!Philippine!State.1avvphi1!
Besides,!even!granting!that!the!surrender!of!a!person!is!mandatorily!required!when!
the!Philippines!does!not!exercise!its!primary!jurisdiction!in!cases!where!"another!
court!or!international!tribunal!is!already!conducting!the!investigation!or!

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Sources'of'International'Law:'Treaties'

undertaking!the!prosecution!of!such!crime,"!still,!the!tenor!of!the!Agreement!is!not!
repugnant!to!Sec.!17!of!RA!9851.!Said!legal!proviso!aptly!provides!that!the!
surrender!may!be!made!"to!another!State!pursuant!to!the!applicable!extradition!
laws!and!treaties."!!
Likewise,!the!Philippines!and!the!US!already!have!an!existing!extradition!treaty,!i.e.,!
RP8US!Extradition!Treaty,!which!was!executed!on!November!13,!1994.!The!
pertinent!Philippine!law,!on!the!other!hand,!is!Presidential!Decree!No.!1069,!issued!
on!January!13,!1977.!Thus,!the!Agreement,!in!conjunction!with!the!RP8US!
Extradition!Treaty,!would!neither!violate!nor!run!counter!to!Sec.!17!of!RA!9851.!
The!US!has!already!enacted!legislation!punishing!the!high!crimes!mentioned!
earlier.!In!fact,!as!early!as!October!2006,!the!US!enacted!a!law!criminalizing!war!
crimes.!Section!2441,!Chapter!118,!Part!I,!Title!18!of!the!United!States!Code!
Annotated!(USCA)!provides!for!the!criminal!offense!of!"war!crimes"!which!is!similar!
to!the!war!crimes!found!in!both!the!Rome!Statute!and!RA!9851!
Similarly,!in!December!2009,!the!US!adopted!a!law!that!criminalized!genocide.!
Despite!the!lack!of!actual!domestic!legislation,!the!US!notably!follows!the!doctrine!
of!incorporation.!As!early!as!1900,!the!esteemed!Justice!Gray!in!The!Paquete!
!
Habana case!already!held!international!law!as!part!of!the!law!of!the!US.!Thus,!a!
person!can!be!tried!in!the!US!for!an!international!crime!despite!the!lack!of!
domestic!legislation.!!
This!rule!finds!an!even!stronger!hold!in!the!case!of!crimes!against!humanity.!It!has!
been!held!that!genocide,!war!crimes!and!crimes!against!humanity!have!attained!
the!status!of!customary!international!law.!Some!even!go!so!far!as!to!state!that!
these!crimes!have!attained!the!status!of!jus!cogens.!
Customary!international!law!or!international!custom!is!a!source!of!international!
law!as!stated!in!the!Statute!of!the!ICJ.!It!is!defined!as!the!"general!and!consistent!
practice!of!states!recognized!and!followed!by!them!from!a!sense!of!legal!obligation.!
In!order!to!establish!the!customary!status!of!a!particular!norm,!two!elements!must!
concur:!State!practice,!the!objective!element;!and!opinio!juris!sive!necessitates,!the!
subjective!element.!
State!practice!refers!to!the!continuous!repetition!of!the!same!or!similar!kind!of!acts!
or!norms!by!States.!It!is!demonstrated!upon!the!existence!of!the!following!
elements:!(1)!generality;!(2)!uniformity!and!consistency;!and!(3)!duration.!While,!
opinio!juris,!the!psychological!element,!requires!that!the!state!practice!or!norm!"be!
carried!out!in!such!a!way,!as!to!be!evidence!of!a!belief!that!this!practice!is!rendered!
obligatory!by!the!existence!of!a!rule!of!law!requiring!it."!
"The!term!jus!cogens!means!the!compelling!law."Corollary,!"a!jus!cogens!norm!
holds!the!highest!hierarchical!position!among!all!other!customary!norms!and!
principles.!As!a!result,!jus!cogens!norms!are!deemed!"peremptory!and!non8
derogable."!When!applied!to!international!crimes,!"jus!cogens!crimes!have!been!

'

deemed!so!fundamental!to!the!existence!of!a!just!international!legal!order!that!
states!cannot!derogate!from!them,!even!by!agreement."!

These!jus!cogens!crimes!relate!to!the!principle!of!universal!jurisdiction,!i.e.,!"any!
state!may!exercise!jurisdiction!over!an!individual!who!commits!certain!heinous!and!
widely!condemned!offenses,!even!when!no!other!recognized!basis!for!jurisdiction!
exists.!"The!rationale!behind!this!principle!is!that!the!crime!committed!is!so!
egregious!that!it!is!considered!to!be!committed!against!all!members!of!the!
international!community!and!thus!granting!every!State!jurisdiction!over!the!crime.!

Therefore,!even!with!the!current!lack!of!domestic!legislation!on!the!part!of!the!US,!
it!still!has!both!the!doctrine!of!incorporation!and!universal!jurisdiction!to!try!these!
crimes.!Consequently,!no!matter!how!hard!one!insists,!the!ICC,!as!an!international!
tribunal,!found!in!the!Rome!Statute!is!not!declaratory!of!customary!international!
law.!More!than!eight!(8)!years!have!elapsed!since!the!Philippine!representative!
signed!the!Statute,!but!the!treaty!has!not!been!transmitted!to!the!Senate!for!the!
ratification!process.!

Further,!the!Rome!Statute!itself!rejects!the!concept!of!universal!jurisdiction!over!
the!crimes!enumerated!therein!as!evidenced!by!it!requiring!State!consent.!Even!
further,!the!Rome!Statute!specifically!and!unequivocally!requires!that:!"This!Statute!
!
is!subject!to!ratification,!acceptance!or!approval!by!signatory!States. These!clearly!
negate!the!argument!that!such!has!already!attained!customary!status.!

In!light!of!the!above!consideration,!the!position!or!view!that!the!challenged!RP8US!
Non8Surrender!Agreement!ought!to!be!in!the!form!of!a!treaty,!to!be!effective,!has!
to!be!rejected.!
Dispositive'Portion:!WHEREFORE,!the!petition!for!certiorari,!mandamus!and!prohibition!is!
hereby!DISMISSED!for!lack!of!merit.!No!costs.!
SO!ORDERED!

9. China'National'Machinery'v.'Santamaria'(RK)'
TOPIC:!(1)!STATE!Immunity;!(2)!Executive!Agreement!
Treaties/Laws:!

Theories!of!State!Immunity!

PIL:!Request!from!foreign!office!of!state!for!immunity!

Waiver!of!Immunity!~!The!Foreign!Sovereign!Immunities!Act!of!1976!of!US!

Definition!of!Treaty,!Executive!Agreement!(and!requisites)!
!
RE:!NORTHRAIL!PROJECT!
G.R.'No.'185572'February'7,'2012!
Petitioner:!CHINA!NATIONAL!MACHINERY!&!EQUIPMENT!CORP.!(GROUP),!

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Respondents:! HON.! CESAR! D.! SANTAMARIA,! in! his! official! capacity! as! Presiding! Judge! of!
Branch! 145,! Regional! Trial! Court! of! Makati! City,! HERMINIO! HARRY! L.! ROQUE,! JR.,! JOEL! R.!
BUTUYAN,! ROGER! R.! RAYEL,! ROMEL! R.! BAGARES,! CHRISTOPHER! FRANCISCO! C.! BOLASTIG,!
LEAGUE! OF! URBAN! POOR! FOR! ACTION! (LUPA),! KILUSAN! NG! MARALITA! SA! MEYCAUAYAN!
(KMM8LUPA!CHAPTER),!DANILO!M.!CALDERON,!VICENTE!C.!ALBAN,!MERLYN!M.!VAAL,!LOLITA!
S.! QUINONES,! RICARDO! D.! LANOZO,! JR.,! CONCHITA! G.! GOZO,! MA.! TERESA! D.! ZEPEDA,!
JOSEFINA!A.!LANOZO,!and!SERGIO!C.!LEGASPI,!JR.,!KALIPUNAN!NG!DAMAYANG!MAHIHIRAP!
(KADAMAY),!EDY!CLERIGO,!RAMMIL!DINGAL,!NELSON!B.!TERRADO,!CARMEN!DEUNIDA,!and!
EDUARDO!LEGSON!
Ponente:!SERENO,!J.:#
'
FACTS:'

September' 14,' 2002:' China! National! Machinery! &! Equipment! Corporation!


(hereinafter# CNMEG)! entered! into! a! Memorandum! of! Agreement! (MOU)! with!
Northrail! Luzon! Railways! Corporation! (hereinafter# Northrail)! for! the! conduct! of!
feasibility!study!on!a!possible!railway!line!from!Manila!to!San!Fernando,!La!Union,!
also!known!as!the!Northrail!Project.!!

August' 30,' 2003:! ' Export! and! Import! Bank! of! China! (hereinafter# EXIM! Bank),! and!
the! Dept.! of! Finance! entered! into! a! MOU,! wherein! China! agreed! to! extend!
Preferential! Buyers! Credit! to! the! Philippine! Government! to! finance! the! Northrail!
Project.! The! Chinese! Govt! designated! EXIM! Bank! as! the! lender,! while! the!
Philippine!Govt!named!DOF!as!the!borrower.!!
o AMT:!Not!exceeding!USD!400,000,000!
o Period:!Payable!in!20!Years!
o Grace!period:!5!years!
o Rate:!3%!per!annum!

October' 1,' 2003:' Ambassador! Wang! Chungui! wrote! a! letter! to! DOF! of! CNMEGs!
designation!as!the!Prime!Contractor!for!the!Northrail!Project.!

December'30,'2003:'Northrail!and!CNMEG!executed!a!Contract!Agreement!for!the!
construction! of! Section! 1,! Phase! 1! of! the! North! Luzon! Railway! System! from!
Caloocan!to!Malolos!on!a!turnkey!basis!
o Contract'price:!'USD!421,050,000!

February' 26,' 2004:! Philippine! Govt! and! EXIM! Bank! entered! into! a! counterpart!
financial! agreement! ! Buyer! Credit! Load! Agreement! No.! BLA! 04055,! where! EXIM!
Bank! agreed! to! extend! Preferential! Buyers! Credit! in! the! amount! of! USD!
400,000,000! in! favor! of! the! Philippines! to! finance! the! construction! of! Phase! 1,! of!
the!Northrail!Project!

February' 13,' 2006:' Respondent!taxpayers!filed!in!the!Makati!RTV!a!complaint!for!


annulment! of! contract! and! injunction! against! CNMEG,! the! Office! of! the! Executive!
Secretary,!the!DOF,!the!DBM,!NEDA,!and!the!Northrail.!!

'

RTC! set! the! case! for! hearing! on! the! issuance! of! injunctive! reliefs,!
prompting! CNMEG! to! file! an! Urgent! Motion! for! Reconsideration! of! this!
order.!!
o Before! the! RTC! could! rule! on! this,! CNMEG! filed! a! motion! to! dismiss! the!
case!arguing!the!RTC!did!not!have!jurisdiction!over!it.!!

CNMEG! argued! that! the! trial! court! did! not! have! jurisdiction!
over(1)! its! person,! as! it! was! an! agent! of! the! Chinese! Govt,!
making!it!immune!from!suit,!and!!

(2)!the!subject!matter,!as!the!Northrail!Project!was!a!product!of!
an!executive!agreement!
!
May' 15,' 2007:' RTC! issued! omnibus! order! denying! CNMEGs! motion! to! dismiss!
eventually!prompting!CNMEG!to!elevat!case!to!the!CA.!!
April'4,'2008:'CA!dismissed!the!petition!
THUS,'CNMEG!filed!the!instant!Petition!for!Review!on!Certiorari!dated!January!21,!
2009!
o

!
ISSUES''
1. WON!CNMEG!is!entitled!to!immunity,!precluding!it!from!being!sued!before!a!local!
court!
2. WON! the! Contract! Agreement! is! an! executive! agreement,! such! that! it! cannot! be!
questioned!by!or!before!a!local!court!
'
HELD:'
'
On'the'issue'of'Immunity'
1. Two'conflicting'concepts'of'sovereign'immunity'

classical'or'absolute'theory'88!a!sovereign!cannot,!without!its!consent,!be!made!a!
respondent!in!the!courts!of!another!sovereign!

newer' or' restrictive' theory! 88! 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!
o The!restrictive!theory!came!about!because!of!the!entry!of!sovereign!states!into!
purely! commercial! activities! remotely! connected! with! the! discharge! of!
governmental!functions.!!

JUSMAG' v' NLRC:! Court! affirmed! the! Philippines! adherence! to! the! restrictive!
theory!

Current' Doctrine:' the!application!of!the!doctrine!of!immunity!from!suit!has!been!


restricted!to!sovereign!or!governmental!activities!(jure#imperii).'The!mantle!of!state!

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2.

Sources'of'International'Law:'Treaties'

immunity! cannot! be! extended! to! commercial,! private! and! proprietary! acts! (jure#
gestionis)!
CNMEG'is'engaged'in'a'proprietary'activity'

The!parties!executed!the!Contract!Agreement!for!the!purpose!of!constructing!the!
Luzon! Railways.! However,! the! Contract! Agreement! must! not! be! read! in! isolation!
because! it! does! not! on! its! own! reveal! whether! the! construction! of! the! Luzon!
railways!was!meant!to!be!a!proprietary!endeavor.!!

The! Contract! of! Agreement! must! be! construed! in! conjunction! with! 3! other!
documents:!(1)!the!MOU!between!Northrail!and!CNMEG,!(b)!Letter!of!Ambassador!
Wang,!and!(c)!the!Loan!Agreement.!!
o Memorandum!of!Understanding!dated!14!September!2002!
1. The!Memorandum!of!Understanding!dated!14!September!2002!shows!that!
CNMEG! sought! the! construction! of! the! Luzon! Railways! as! a! proprietary!
venture!(see#full#text#for#all#relevant#parts#of#the#MOU)!

APPROVAL! PROCES:! xxx! As! soon! as! possible! after! completion! and!
presentation! of! the! Study! the! parties! shall! commence! the!
preparation! and! negotiation! of! the! terms! and! conditions! of! the!
Contract!!
2. Clearly,!it'was'CNMEG'that'initiated'the'undertaking,!and!not!the!Chinese!
government.! The! Feasibility! Study! was! conducted! not! because! of! any!
diplomatic! gratuity! from! or! exercise! of! sovereign! functions! by! the! Chinese!
government,!but!was!plainly!a!business!strategy!employed!by!CNMEG!with!
a!view!to!securing!this!commercial!enterprise.!
o Letter!Dated!1!OCT!2003!
1. That! CNMEG,! and! not! the! Chinese! government,! initiated! the! Northrail!
Project! was! confirmed! by! Amb.! Wang! in! his! letter! dated! 1! October! 2003!
(see#full#text#for#all#relevant#parts#of#the#Letter)!

CNMEG! already! signed! an! MOU! with! the! North! Luzon! Railways!
Corporation! last! September! 14,! 2000! during! the! visit! of! Chairman! Li!
Peng.! Such! being! the! case,! they! have! already! established! an! initial!
working!relationship!with!your!North!Luzon!Railways!Corporation!
2. Thus,! the! desire! of! CNMEG! to! secure! the! Northrail! Project! was! in! the!
ordinary!or!regular!course!of!its!business!as!a!global!construction!company.!

The! use! of! the! term! "state! corporation"! to! refer! to! CNMEG! was! only!
descriptive! of! its! nature! as! a! government8owned! and/or! 8controlled!
corporation,! and! its! assignment! as! the! Primary! Contractor! did! not!
imply!that!it!was!acting!on!behalf!of!China!!
o The!Loan!Agreement!
1. CNMEG! claims! immunity! on! the! ground! that! the! Aug! 30! MOU! on! the!
financing!of!the!Northrail!Project!was!signed!by!the!Philippine!and!Chinese!

3.

'

governments,! and! its! assignment! as! the! Primary! Contractor! meant! that! it!
was!bound!to!perform!a!governmental!function!on!behalf!of!China.!
2. However,! the! Loan! Agreement! belies! this! reasoning.! (see# full# text# for# all#
relevant#parts#of#the#loan#agreement)!

Article! 11.! Xxx! (j)! Commercial! Activity! Borrowers!private' and'


commercial'acts'done'and'performed'for'commercial'purposes'under'
the'laws'of'the'Republic'of'the'Philippines'and'neither'the'Borrower'
nor' any' of' its' assets' is' entitled' to' any' immunity' or' privilege'
(sovereign'or'otherwise)'from'suit.!
3. Loan! Agreement! likewise! contains! this! express! waiver! of! immunity:! The!
Borrower!irrevocably!and!unconditionally!waives,!any!immunity!to!which!it!
or!its!property!may!at!any!time!be!or!become!entitled.!

Thus,!it!is!clear!from!the!foregoing!provisions!that!the!Northrail!Project!
was!a!purely!commercial!transaction!

Thus! piecing! together! the! above! would! reveal! the! desire! of! CNMEG! to! construct!
the!Luzon!Railways!in!pursuit!of!purely!commercial!activity!performed!in!ordinary!
course!of!its!business.!!
CNMEG'failed'to'adduce'evidence'that'it'is'immune'from'suit'under'Chinese'Law!

Even! assuming!arguendo!that! CNMEG! performs! governmental! functions,! such!


claim!does!not!automatically!vest!it!with!immunity!because!immunity!from!suit!is!
determined! by! the! character! of! the! objects! for! which! the! entity! was! organized!
(Malong!v.!PNR)!

Courts! ruling! in! Deutsche' Gesellschaft' Fur' Technische' Zusammenarbeit' (GTZ)' v.'
CA:!
o 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.!!
o The!logical!question!is!whether!the!foreign!state!is!engaged!in!the!activity!in!the!
regular!course!of!business.!
1. If!not,!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!
o The! principle! of! state! immunity! from! suit,! whether! a! local! state! or! a! foreign!
state,!is!reflected!in!Section!9,!Article!XVI!of!the!Constitution,!which!states!that!
"the!State!may!not!be!sued!without!its!consent."!!
1. IF!the!suit!is!against!the!STATE!itself,!the!only!necessary!inquiry!is!whether!
said!State!had!consented!to!be!sued.!
2. IF!it!is!against!a!States!agency,!then!see!below:!
o State! immunity! from! suit! may! be! waived! by! general! or! special! law.! The! special!
law! can! take! the! form! of! the! original! charter! of! the! incorporated! government!
agency!

32!

Public'International'Law'
1.
2.
3.

4.

Sources'of'International'Law:'Treaties'

Thus,!the!agency!can!simply!invoke!its!charter!and!claim!exemption.!
Also,!the!court!can!simply!check!the!charter!and!sue.!!
However,! if! the! agency! fails! to! invoke! exemption! from! its! national! law! or!
charter,! We' adhere' to' the' rule' that' in' the' absence' of' evidence' to' the'
contrary,'foreign'laws'on'a'particular'subject'are'presumed'to'be'the'same'
as'those'of'the'Philippines,'and'following'the'most'intelligent'assumption'
we' can' gather,' GTZ' is' akin' to' a' governmental' owned' or' controlled'
corporation' without' original' charter' which,' by' virtue' of' the' Corporation'
Code,'has'expressly'consented'to'be'sued.''
o Applying!GTZ!v.!CA!to!the!present!case,!it!is!readily!apparent!that!CNMEG!cannot!
claim! immunity! from! suit,! even! if! it! contends! that! it! performs! governmental!
functions!
1. Its! designation! as! the! Primary! Contractor! does! not! automatically! grant! it!
immunity!
2. Although!CNMEG!claims!to!be!a!government8owned!corporation,!it!failed!to!
adduce!evidence!that!it!has!not!consented!to!be!sued!under!Chinese!law.!
o THUS,in!the!absence!of!evidence!to!the!contrary,!CNMEG!is!to!be!presumed!to!
be!a!government8owned!and!8controlled!corporation!without!an!original!charter.!
As! a! result,! it! has! the! capacity! to! sue! and! be! sued! under! Section! 36! of! the!
Corporation!Code.!
CNMEG'failed'to'present'a'certification'from'the'DFA!

the! determination! by! the! Executive! that! an! entity! is! entitled! to! sovereign! or!
diplomatic!immunity!is!a!political!question!conclusive!upon!the!courts!

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.!(Holy!See!v.!Rosario)!
o 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.!
o But! how! the! Philippine! Foreign! Office! conveys! its! endorsement! to! the! courts!
varies:!
1. Sent!a!letter!directly!to!the!Secretary!of!Labor!and!Employment,!informing!
the!latter!that!the!respondent8employer!could!not!be!sued!
2. Secretary!of!Foreign!Affairs!sent!the!trial!court!a!telegram!to!that!effect!
3. In!some!cases,!the!defense!of!sovereign!immunity!was!submitted!directly!to!
the!local!courts!by!the!respondents!through!their!private!counsels!
4. 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!

'

The! question! now! is! whether! any! agency! of! the! Executive! Branch! can! make! a!
determination!of!immunity!from!suit,!which!may!be!considered!as!conclusive!upon!
the! courts.! The! SC! emphasized' DFAs' competence! and! authority! to! provide! such!
necessary!determination!
o The! DFAs! function! includes,! among! its! other! mandates,! the! determination! of!
persons!and!institutions!covered!by!diplomatic!immunities!

Moreover,!this!authority!is!exclusive'to!the!DFA!
o In!the!case!at!bar,!CNMEG!offers!the!Certification!executed!by!the!Economic!and!
Commercial!Office!of!the!Embassy!of!the!Peoples!Republic!of!China,!stating!that!
the!Northrail!Project!is!in!pursuit!of!a!sovereign!activity.!
1. However,! this! is! not! the! kind! of! certification! that! can! establish! CNMEGs!
entitlement!to!immunity!from!suit,!as!Holy!See!unequivocally!refers!to!the!
determination!of!the!"Foreign!Office!of!the!state!where!it!is!sued!
o Further,! CNMEG! also! claims! that! its! immunity! from! suit! has! the! executive!
endorsement! of! both! the! OSG! and! the! Office! of! the! Government! Corporate!
Counsel!(OGCC)!
1. BUT,!determination!by!the!OSG,!or!by!the!OGCC!for!that!matter,!does!not!
inspire!the!same!degree!of!confidence!as!a!DFA!certification.!
Agreement' to' submit' dispute' to' arbitration' may' be' construed' as' implicit' waiver' of'
immunity'from'suit!

In!the!United!States,!The'Foreign'Sovereign'Immunities'Act'of'1976!provides!for!a!
waiver! by! implication! of! state! immunity.! The! law! provides! that! agreement! to!
submit! to! arbitration! in! a! foreign! country! is! construed! as! an! implicit! waiver! of!
immunity!of!suit.!

Although!there!is!no!similar!law!in!the!Philippines,!there!is!reason!to!apply!the!legal!
reasoning!behind!the!waiver!in!this!case.!

The!Conditions!of!Contract!in!the!Contract!Agreement!provides!for!Settlement' of'
Disputes'and'Arbitration!
From! all! the! foregoing,! it! is! clear! that! CNMEG! has! agreed! that! it! will! not! be! afforded!
immunity!from!suit.!Thus,!the!courts!have!the!competence!and!jurisdiction!to!ascertain!
the!validity!of!the!Contract!Agreement.!
!
ON'EXECUTIVE'AGREEMENT..'
Article! 2(1)! of! the! Vienna! Convention! on! the! Law! of! Treaties! (Vienna! Convention)!
defines!a!treaty!as!follows:'

[A]n! international! agreement! 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.'

5.

6.

1.

33!

Public'International'Law'
2.

3.

4.

Sources'of'International'Law:'Treaties'

In!Bayan#Muna#v.#Romulo,!this!Court!held!that!an' executive' agreement' is' similar' to' a'


treaty,!except!that!the!former!(a)!does!not!require!legislative!concurrence;!(b)!is!usually!
less!formal;!and!(c)!deals!with!a!narrower!range!of!subject!matters.'
The! Requisites! of! an! Executive! agreement! are:! (a)! the! agreement! must! be! between!
states;!(b)!it!must!be!written;!and!(c)!it!must!governed!by!international!law'

The!first!and!the!third!requisites!do!not!obtain!in!the!case!at!bar.'
o CNMEG#is#neither*a*government*nor*a*government*agency.'
1. The! Contract! Agreement! was! not! concluded! between! the! Philippines! and!
China,!but!between!Northrail!and!CNMEG'
2. Northrail!is!a!government8owned!or!8controlled!corporation,!while!CNMEG!
is!a!corporation!duly!organized!and!created!under!the!laws!of!the!Peoples!
Republic!of!China'

Both! Northrail! and! CNMEG! entered! into! the! Contract! Agreement! as!
entities! with! personalities! distinct! and! separate! from! the! Philippine!
and!Chinese!governments,!respectively.'
3. Neither! can! it! be! said! that! CNMEG! acted! as! agent! of! the! Chinese!
government'

Amb.!Wang,!in!his!letter!dated!1!October!2003,!described!CNMEG!as!a!
"state!corporation'
o The#Contract#Agreement#is#to#be#governed#by#Philippine#law.'
54
1. Article! 2! of! the! Conditions! of! Contract, !which! under! Article! 1.1! of! the!
Contract! Agreement! is! an! integral! part! of! the! latter,! states:! The! contract!
shall! in! all! respects! be! read! and! construed! in! accordance! with! the! laws! of!
the!Philippines'
2. Since!the!Contract!Agreement!explicitly!provides!that!Philippine!law!shall!be!
applicable,! the! parties! have! effectively! conceded! that! their! rights! and!
obligations!thereunder!are!not!governed!by!international!law.'
It!is!therefore!clear!from!the!foregoing!reasons!that!the!Contract!Agreement!does!not!
partake! of! the! nature! of! an! executive! agreement.! It! is! merely! an! ordinary! commercial!
contract!that!can!be!questioned!before!the!local!courts.'

'

!
WHEREFORE,! the! instant! Petition! is!DENIED.! Petitioner! China! National! Machinery! &!
Equipment!Corp.!(Group)!is!not!entitled!to!immunity!from!suit,!and!the!Contract!Agreement!
is! not! an! executive! agreement.! CNMEGs! prayer! for! the! issuance! of! a! TRO! and/or! Writ! of!
Preliminary! Injunction! is! DENIED! for! being! moot! and! academic.! This! case! is! REMANDED! to!
the!Regional!Trial!Court!of!Makati,!Branch!145,!for!further!proceedings!as!regards!the!validity!
of!the!contracts!subject!of!Civil!Case!No.!068203.!

!
!
!

34!

MCRAE: STATE PRACTICE


I. CUSTOMARY INTERNATIONAL LAW
The Paquete Habana (RC)
Topic: Intl Customary Law (ICL), Usage ripens into ICL, fishing boats, in the exercise of
their profession, are exempt from capture as prizes of war
Treaties: NONE, but these agreements/orders/edicts were mentioned in the case
Henry IV and King of France: Concerning Safety of Fishermen (1400 and 1403)
Emperor Charles V and Francis L of France (1521)
French and Dutch Edicts (1538)
Louis XIV and Holland and the Dutch (1675)
France and England and US during the War of Independence (1779)*
US and Mexico (1846)*
*US was directly involved
175 US 677
Parties: Unknown, just stated that appeal from decrees of the district court of Florida
FACTS:
There was a blockade between the US and Spain during the American-Spanish
War.
Two fishing boats sailing under the Spanish flag with crew and ownership (a
Spanish subject) from Havana, Cuba were captured and brought into Key West,
Florida. The crew had no knowledge of the existence of war or any blockade. They
did not resist nor made any attempt to run the blockade at the time of capture.
The Florida court decreed after trial a condemnation and sale of the two vessels
because there was no existing ordinance, treaty or proclamation that boats of
their class were exempt form seizure.
ISSUE/HELD:
W/N the boats were exceptions to being prizes of war based on ICL? YES
Upon the facts proved, in either case, it is the duty of this court, sitting as the
highest prize court of the United States, and administering the law of nations, to
declare and adjudge that the capture was unlawful and without probable cause;
and it is therefore, that the decree of the District Court be reversed.
RATIO:
By ancient usage among civilized nations, beginning centuries ago and gradually
ripening into a rule of international law, coast fishing vessels, pursing their

vocation of catching and bringing in fresh fish, have been recognized as exempt,
with their cargoes and crews, from capture as prizes of war.
The would cite the following agreements/orders/edicts:
o Henry IV and King of France: Concerning Safety of Fishermen (1400 and 1403)
o Emperor Charles V and Francis L of France (1521)
o French and Dutch Edicts (1538)
o Louis XIV and Holland and the Dutch (1675)
o France and England and US during the War of Independence (1779)*
o US and Mexico (1846)*
All these were made during times of conflict between the various countries
recognizing the vulnerability of its citizens and their need to continue on fishing
for livelihood. They all made exempt fishing vessels exempt from capture as
prizes of war. It was repeatedly said that citizens shouldnt suffer unduly during
such times and should be allowed to provide livelihood for themselves.
The only exception of this long-standing practice being the capture of French and
Dutch vessels by the English during the French Revolution. Lord Stowell (the guy
who issued the order to capture) stated:
o The exemption of fishing vessels was only a rule of comity and not of legal
decision.
o Comity was used synonymously with courtesy or goodwill and no court in
England at the time had made any decision exempting such.
The US SC went on to say that international law is part of our law and must be
ascertained and administered by the courts of justice. Where there is no treaty
and no controlling executive or legislative act or judicial decision, resort must be
had to the customs and usage of civilized nations, and as evidence of these, to
the works of jurists and commentators who by years of labor, research, and
experience have made themselves peculiarly well acquainted with the subject of
which they treat. Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but for
trustworthy evidence of what the law really is.
The review of precedence and authorities demonstrates that at the present day,
by the general consent of the civilized nations of the world, and independently
of any express treaty or other public act, it is an established rule of international
law, founded on considerations of humanity to a poor and industrious order of
men, and of mutual convenience of belligerent states, that coast fishing vessels,
with their implements and supplies, cargoes and crews, unarmed and honestly
pursuing their calling are exempt for capture as prizes of war.
Whatever the may have been its origins whether usage or ordinances it has
become the law of the sea only by concurrent sanction of those nations who may
be said to constitute the commercial world. Many of the usages which prevail,
and which have the force of law, doubtless originated in the positive
prescriptions of some single state, which were at first of limited effect, but
which, when generally accepted, became of universal obligation.
1

The Asylum Case (Columbia v. Peru) (RC)


Topic: Regional Customary Law, Burden of Proof for Custom, Constant and Uniform
Usage as evidence of custom, political asylum
Treaties:
Bolivarian Agreement on Extradition (1911)
Convention on Asylum (1928)
Havana Convention (1928)
Montevido Convention (1933 & 1939)
17 I.L.R. 280, I.C.J. Rep. 266
Petitioner: Columbia
Respondent: Peru
They submitted themselves to the jurisdiction of ICJ thru the Act of Lima of 1949.
FACTS:
October 1948, military rebellion broke out in Peru and was suppressed the same
day.
Victor Raul Haya de la Torre (de la Torre) was charged with military rebellion as
being the leader of the faction responsible.
In 1949, de la Torre sought asylum in the Columbian embassy Peru. According to
the embassy de la Torre was qualified as a political refugee. Relying on the
Bolvarian Agreement and the Convention on Asylum and general American
International Law, they argued that qualification was both implied in the
conventions and inherent in the institution of asylum.
Peruvian government said that he was a mere criminal and cannot avail of asylum.
ISSUE/HELD:
W/N Columbia was competent as the country granting asylum, to qualify the
offense for the purpose of granting asylum? NO
Such competence is not inherent in the institution of diplomatic asylum.
Furthermore, neither the Havana Convention nor the Montevido Convention
justified the reliance on custom.
RATIO:
Neither the Bolivarian Agreement nor the Convention on Asylum in force between
Peru and Columbia grant the right to qualify the offense. Columbias reliance on
practice and usage is also unfounded.
First, the one relying on the custom must prove that the custom does exist.
ON THE EXISTENCE OF SUCH CUSTOM:
Columbia cited the following treaties to prove such custom:

o Montevido Convention of 1889


o Bolivarian Agreement of 1911
o Havana Convention of 1928
o Montevido Conventions of 1933 & 1939
None of these treaties except the 1933 Convention contain any provision
concerning the alleged rule of unilateral and definitive qualification.
Further, according to Columbia, Montevido Convention of 1933, merely codified
principles which were already recognized by Latin-American countries on asylum
and extradition and was valid proof of custom against Peru.
The 1933 Convention was only ratified by a limited number of countries. Peru
resisted its ratification, so cannot be said to abide by it.
As such, Columbia failed to prove the existence of any such custom. As the state
granting asylum, Columbia is not competent to qualify the offense y unilateral and
definitive decision, binding on Peru.
WHAT IS QUALIFICATION? (read thru random things in Google)
From what I understand. Its whether or not the one claiming it can be considered a
political refugee. He has to meet the qualifications before he can claim asylum.

North Sea Continental Shelf Cases (RC)


Topic: Intl Customary Law, Equidistant Principal is Custom
Treaties:
Agreements between the countries
Geneva Convention on the Continental Shelf
I.C.J. Rep. 1969
Petitioner: Federal Republic of Germany
Respondents: Denmark and Netherlands
FACTS:
Germany, Denmark and the Netherlands had made lateral line agreements
delimiting the North Sea continental shelves.
Denmark and the Netherlands said that the equidistant-special circumstances
principle in Article 6(2) of Geneva Convention applied. By applying this, Germany
for a smaller portion.
Germany argued that the doctrine of just and equitable share applied.
ICJ ruled against Germany. But also stated that the equidistant rule was only
customary international law that was not crystallized by the Geneva Convention.
ISSUE/HELD:
W/N Geneva Convention on Continental Shelf crystallized the equidistant principal
as intl law? NO
2

What rule applies? Equidistant Principle


W/N the equidistant principal is customary intl law? YES
RATIO:
ARTICLE 6(2) of Geneva Convention on the Continental Shelf
This is subject to other agreements between the countries. It is contractual in
nature and based on equity.
This article was framed so as to put second the obligation to make use of the
equidistant method, causing it to come after a primary obligation to effect
delimitation by agreement between the parties.
So the countries have to continue negotiations with the following in mind:
o Delimitation of boundaries is to be effected by agreement in accordance of
equitable principles, and taking into account all of the relevant
circumstances, to allow Parties to have as much shelf without encroachment
on the natural prolongation of the land territory of the other
o A degree of proportionality
Even though it isnt binding as intl law. It is part of customary intl law.
CUSTOMARY INTL LAW
Article 6(2) is a norm-creating provision partly because of its own impact, partly
on the basis of subsequent State practice. It has thus, become binding on
countries not even part of the Convention
TEST/EXISTENCE OF OPINIO JURIS:
1. Be of a fundamentally norm-creating character such as could be
regarded as forming the basis of a general rule of law (objective part
settled practice)
2. States conform because they feel a legal obligation (subjective opinio
juris sive necessitatis)
Another element to be considered is that of TIME (its been 10 years since the
Convention was signed and five since it came into force). But a short of passage of
time does not in itself prevent the formation of custom. What matters is that state
practice should have been both extensive and virtually uniform in the provision
invoked. So refer to the test above.
DISSENTING OPINION:
According to Judge Sorenson, Article 6(2) is intl law.
It is generally accepted by signatories, Germany never refused to recognize it.
In fact, Germany has used the same Convention to secure for itself other
rights in the continental shelf.

Statement of Mr. JA Beesley to the 1st Committee of the


GA on Unilateral State Action in Development of CIL (JG)
TOPIC: Customary International Law; Methods in the Development of the Law of the
Sea
TREATY: None, but the Geneva Law of the Sea Conferences and the Geneva Convention
on the Territorial Sea were mentioned.
FACTS:
On December 4, 1970, Mr. J.A. Beesley, Canadian Representative, made a
statement addressed to the First Committee of the General Assembly regarding
unilateral state action in the development of customary international law. He said
that:
o In order to prevent the threatened degradation of the marine environment
and to ensure an orderly and equitable exploitation of seabed resources,
there must be an effective and early international action.
o While awaiting such action, states must be responsible for preventing
pollution of the sea and for instituting regulatory measures for the
conservation of its living resources.
o States should not neglect their responsibility to cooperate on a bilateral and
multilateral basis for the fulfillment of these purposes.
o If the international community delays of fails to agree on a new order of the
Law of the Sea, states shall make use of the existing law.
ISSUE/POSITION OF CANADA:
In developing the Law of the Sea, which method has more merits, Unilateralism or
Multi-lateralism?
It is Canadas position that multilateral action and unilateral action are not
mutually exclusive courses. They should not be treated as alternatives.
The contemporary international law of the sea comprises both conventional and
customary law.
o Conventional or Multi-Lateral Treaty Law must be developed primarily by
multilateral action, drawing as necessary upon principles of customary
international law.
Multilateral conventions consist of both codification of existing
principles of international law and progressive development of new
principles.
o Customary International Law, on the other hand, is derived primarily from
state practice, i.e. unilateral action by various states, frequently drawing
upon the principles embodied in bilateral and limited multilateral treaties.
Law-making treaties often become accepted not by virtue of their status
as treaties, but through a gradual acceptance by states of the principles
they lay down.
3

Unilateral action carried to an extreme and based upon conflicting principles could
produce complete chaos, while insistence upon the multilateral approach alone
can lead to the situation which has prevailed since the failure of the two Geneva
Law of the Sea Conferences to reach agreement upon the breadth of the territorial
sea and fishing zones.
Hence, what is required is a judicious mix of the two approaches, taking into
account the complex set of inter-related and sometimes conflicting political,
economic and legal considerations, both national and international, and based
upon the imperatives of time itself.

Trends in the Law of the Sea (JG)


D.P. OConnel,
Chichele Professor of Public International Law
Topics: Two Schools of Thought in the International Legal System; Opinio Juris vs.
Effectivity
Treaties: Geneva Convention of the Law of the Sea of 1958
The Third Law of the Sea Conference has revealed the extent of the current
incoherence in international law. For the past two hundred years, there have been
two main doctrines on the ultimate nature of the international legal system:
1. Grotian Tradition of Moral Order whereby the rules of international law
have been elucidated by reference to what the society of mankind requires
for its regular development; and
2. Vatellian Tradition of Acquiescence and Consent whereby these rules have
been promulgated by reference to the practices of States.
o The difference between the two has been marked by difficulty in practice by
the common doctrine of opinion juris, the doctrine that supposes that
governments act based on legal conviction and not from motives of power
and gain.
The doctrine of opinion juris provided international lawyers with a workable
methodology, as in the case of maritime law, where practice established the
freedom of the seas and the nature of the territorial sea. But the methodology
has now collapsed because governments now, in the matter of the Law of the Sea,
no longer act by reference to what they think the law is; they deliberately break
traditional rules in order to bring about the changes they seek (e.g. setting the 200
mile exclusive zone). The 200-mile exclusive zone rule is a product of a State
practice based upon power and not upon formal rules. The power may be justified
on the basis of moral, sociological, or other considerations, but it is not based on
opinion juris.

The alternative methodology to opinion juris is effectivity, where a rule is made or


changed simply by making it effective. And the only way to make it effective is by
the use of force.
Judge Read in the International Court in the Anglo-Norwegian Fisheries case
pointed out that in maritime law, State practice can be found in seizures,
where the coastal state asserts its sovereignty over the waters in question.
This is an alarming doctrine because it supposes that the law is a product of
force and not the curb of force. Also, it puts a premium on unilateral action
and leads to constant struggles and disputes among states.
The Geneva Conventions of the Law of the Sea of 1958 were supposed to be a
codification of the maritime law, and for that reason they did not contain any
denunciation clauses. One third of the countries at the Third Law of the Sea
Conference have ratified or acceded. Most countries even repudiated some of
their rules. Due to rapid technological growth and changing economic and social
circumstances, the old rules which magnified the freedom of the seas, have been
replaced. Absolute freedom cannot be upheld when the result would be the
devastation of fishery resources and the disruption of the economies and societies
of countries dependent upon local fishing.
The only way to reconcile absolute freedom with regulation is through unilateral
action. However, that raises difficult questions as to when such action is so
widespread and so uniform so as to completely change the rules.
In the Icelandic Fisheries Case of 1974, the International Court held that Iceland
could not validly assert a 50-mile claim to drive away British and German
fishermen. However, the reasons given for the decision were so various as to leave
the law in as confused a condition as before the case began.
o The Court held that exclusive fishery limits extended only to 12 miles. This
was determined by recording the pressures of unilateral actions during the
1960s which had established that limit.
o The Court also endorsed the doctrine of effectivity, which provided a juridical
platform for Iceland to eventually consolidate a 200-mile limit.

Fisheries Jurisdiction Case (UK v. Ireland) (JG)


TOPIC: Fishery Zone; Preferential Rights of Fishing in Adjacent Waters; Negotiations to
Delimit the Rights and Interests of States
TREATIES:
Exchange of Notes of 1961 between U.K. and Iceland regarding Icelands fishery
limits
Geneva Convention on the High Seas
1958 Resolution and 1960 joint amendment concerning preferential rights
4

Arrangement Relating to Fisheries in Waters Surrounding the Faroe Islands- signed


in 1973 on behalf of Belgium, Denmark, France, Germany, Norway, Poland, and
the UK
Agreement on the Regulation of the Fishing of North-East Arctic (ArctoNorwegian) Cod signed in 1974 on behalf of the UK, Norway, and the Union of
Soviet Republics
FACTS:
The Government of Iceland promulgated Regulations in 1972, which established a
zone of exclusive fisheries jurisdiction extending to 50 nautical miles from
baselines around the coast of Iceland.
The 1958 Convention on the Territorial Sea and the Contiguous Zone did not
define the breadth of the territorial sea, but Article 24 of this Convention limits
the contiguous zone to 12 miles from the baseline from which the breadth of the
territorial sea is measured.
The question of the breadth of the territorial sea and that of the extent of the
coastal States fishery jurisdiction were referred to the Second Conference on the
Law of the Sea in 1960. Furthermore, the question of the extent of the fisheries
jurisdiction of the coastal State became gradually separated from the notion of
the territorial sea.
The 1960 Conference failed by one vote to adopt a text governing the two
questions of the breadth of the territorial sea and the extent of fishery rights.
Two concepts have crystallized as customary law from the general consensus at
the Conference:
o Fishery Zone the area in which a State may claim exclusive fishery
jurisdiction independently of its territorial sea; the extension of that fishery
zone up to a 12-mile limit from the baselines appears now to be generally
accepted.
o Preferential Rights of Fishing in Adjacent Waters in favour of the coastal
State in a situation of special dependence on its coastal fisheries.
The concept of a 12-mile fishery zone has been accepted with regard to Iceland in
the substantive provisions of the 1961 Exchange of Notes, and the United
Kingdom has also applied the same fishery limits to its own coastal waters since
1964. U.K. has also expressly recognized Icelands preferential rights in the
undisputed waters and at the same time has invoked its own historic fishing rights,
on the ground that reasonable regard must be had to such traditional rights by the
coastal State in accordance with the generally recognized principles embodied in
Article 2 of the Geneva Convention on the High Seas Convention, which declares
that the high seas being open to all nations, no State may validly purport to
subject any part of them to its sovereignty and goes on to provide that freedom
of the high seas comprises freedom of navigation and freedom of fishing. The
freedoms of the high seas are however made subject to the consideration that

they shall be exercised by all States with reasonable regard to the interests of
other States in their exercise of the freedom of the high seas.

ISSUES:
1. Whether or not Iceland is entitled to claim preferential rights? YES
2. Whether or not it may unilaterally exclude the U.K. fishing vessels from all fishing
activity in the waters beyond the limits agreed to in the 1961 Exchange of Notes? NO
HELD/RATIO:
Essentially, the Court held that:
o Iceland is entitled to preferential rights
o However, its legislation in 1972 was illegal; Iceland was not entitled
unilaterally to exclude United Kingdom fishing vessels
o The two governments were under mutual obligations to negotiate an
equitable solution
o The preferential rights of Iceland and the established rights of the U.K. as
well as the interests of other States should be taken into account in the
negotiations.
There can be no doubt of the exceptional dependence of Iceland on its fisheries.
That exceptional dependence was explicitly recognized by the U.K. in the Exchange
of Notes of March 11, 1961.
The preferential rights of the coastal State come into play only at the moment
when an intensification in the exploitation of fishery resources makes it imperative
to introduce some system of catch-limitation and sharing of those resources, to
preserve the fish stocks in the interests of their rational and economic
exploitation. This situation appears in the present case.
The concept of preferential rights is not incompatible with the exclusion of all
fishing activities of other States. A coastal State entitled to preferential rights is
not free, unilaterally and according to its own uncontrolled discretion, to
determine the extent of those rights.
Accordingly, the fact that Iceland is entitled to claim preferential rights does not
justify its claim to unilaterally exclude U.K. fishing vessels from all fishing activity in
the waters.
The provisions of the Icelandic Regulations of 1972 and the manner of their
implementation disregard the fishing rights of UK. Icelands unilateral action thus
constitutes an infringement of Article 2 of the 1958 Geneva Convention on the
High Seas, which requires that all States, including coastal States, in exercising
their freedom of fishing, pay reasonable regard to the interests of other States.
The most appropriate method for the solution of the dispute is negotiation. Its
objective should be the delimitation of the rights and interests of the Parties, the
preferential rights of the coastal State on the one hand, and the rights of the other
5

State (i.e. UK) on the other, to balance and regulate equitably questions such as
those of catch-limitation, share allocations and related restrictions concerning
areas closed to fishing, number and type of vessels allowed and forms control of
the agreed provisions. The obligation to negotiate flows form the very nature of
the respective rights of the Parties and is in accordance with the provisions of the
UN Charter concerning peaceful settlement of disputes.

Nuclear Test Cases (Australia v. France; New Zealand v.


France) (JG)
I.C.J. Reports 1974, pp. 253, 457
TOPIC: Obligatory Character of Customary International Law; The concept of Erga
Omnes (obligations binding against the entire world)
TREATIES: none
FACTS:
On June 8, 1974, the Office of the President of the French Republic released its
first statement declaring its intention to conduct a series of nuclear tests in the
South Pacific.
New Zealand and Australia opposed the tests.
On June 10, 1974, the French Embassy in Wellington sent a Note to the New
Zealand Ministry of Foreign Affairs saying that France is in a position to conduct
the series of underground tests as soon as the planning is completed and that the
atmospheric tests will be the last ones to be carried out.
On July 25, 1974, the President of France also made a statement at the press
conference declaring that the French nuclear testing will continue, but this round
of atmospheric tests would be the last. Similar statements were made by the
French Minister of Defence at a press conference and on French television.
ISSUE:
Whether or not France made public its intention to cease the conduct of atmospheric
tests following the conclusion of the 1974 series of tests? YES
HELD/RATIO:
It is well recognized that declarations made by way of unilateral acts, concerning
legal or factual situations, may have the effect of creating legal obligations.
Declarations of this kind may be, and often are, very specific. When it is the
intention of the State making the declaration that it should become bound
according to its terms, that intention confers on the declaration the character of a
legal undertaking, the State being thenceforth legally required to follow a course
of conduct consistent with the declaration. An undertaking of this kind, if given
publicly, and with intent to be bound, even though not made within the context of
international negotiations, is binding.
o In these circumstances, nothing in the nature of a quid pro quo
(according to Merriam-Webster: something given or received for

something else) nor any subsequent acceptance of the declaration, nor


even any reply or reaction from the other States, is required for the
declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by
which the pronouncement by the State was made.
Of course, not all unilateral acts imply obligation; but a State may choose to take
up a certain position in relation to a particular matter with the intention of being
bound the intention is to be ascertained by interpretation of the act. When
States make statements by which their freedom of action is to be limited, a
restrictive interpretation is called for.
The Court also stated that for such statements to create commitments in
international law, no particular form is required hence, it may be oral or written,
provided that there is clear intention to be bound therewith.
The Court further stated that the test is whether the language employed in any
given declaration does reveal a clear intention.
One of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith. Just as the very
rule of pacta sunt servanda in the law of treaties is based on good faith, so is also
the binding character of an international obligation assumed by unilateral
declaration. Thus, interested states may take cognizance of unilateral declarations
and place confidence in them, and are entitled to require that the obligation thus
created be respected.
Of the statements by the French Government, the most essential are clearly those
made by the President of the Republic. His statements and those of members of
the French Government acting under his authority, in whatever form these
statements were expressed, must be held to constitute an engagement of the
State, having regard to their intention and to the circumstances in which they
were made.
The unilateral statements of the French authorities were made outside the Court,
publicly and erga omnes. Hence, they are valid and binding against the entire
world.
In announcing that the 1974 series of atmospheric tests would be the last, the
French Government conveyed to the world at large, its intention effectively to
terminate these tests. It was bound to assume that other States might take note
of these statements and rely on their being effective.
The test is whether from the actual substance of these statements, and from the
circumstances attending their making, legal implications of the unilateral act can
be deduced. In the statements made by France, the objects are clear and were
addressed to the international community as a whole, and the Court holds that
they constitute an undertaking possessing legal effect.
DISSENTING OPINION OF JUDGE SIR GARFIELD BARWICK
Basically, it is the opinion of the judge that there was no clear intention on the
part of France to undertake a legal obligation; the Presidential declarations were
mere statements of policy.

II. GENERAL ASSEMBLY RESOLUTIONS


Dissenting Opinion of Judge Tanaka in the South West
Africa Cases (CG)
Issue: WON the resolutions and declarations of international organs can be recognized
as a factor in the custom-generating process in the interpretation of Article 38,
paragraph 1 (b), as evidence of a general practice
Opinion: YES The norm of non-discrimination or non-separation on the basis of race
has become a rule of customary international law because resolutions, declarations,
etc., on the same matter and organizations took place repeatedly

General practice in custom-generating process according to traditional international


law:
Result of the repetition (a historical process over a long period of time) of
individual acts of States constituting consensus in regard to a certain content of a
rule of law
In the contemporary age of highly developed techniques of communication and
information, the formation of a custom through the medium of international
organizations is greatly facilitated and accelerated; the establishment of such a
custom would require no more than one generation or even far less than that
What is required for customary international law is the repetition of the same
practice
Each resolution, declaration, etc., being considered as the manifestation of the
collective will of individual participant States, the will of the international
community can certainly be formulated more quickly and more accurately as
compared with the traditional method of the normative process
This collective, cumulative and organic process of custom-generation can be
characterized as the middle way between legislation by convention and the
traditional process of custom making, and can be seen to have an important role
from the viewpoint of the development of international law
The accumulation of authoritative pronouncements such as resolutions,
declarations, decisions, etc., concerning the interpretation of the Charter by the
competent organs of the international community can be characterized as
evidence of the international custom referred to in Article 38
Proofs of existence of the international norm and standards of non-discrimination
and non-separation:
o Resolutions of the GA
o Resolutions of the Security Council

o
o
o
o
o
o
o
o
o

1953 Resolution which declares the inconsistency of the policy of the South
African Government with the principles contained in the Charter of the UN
and with its obligations
Report of the Committee on the South West Africa
11 trust territories agreements
Universal Declaration of Human Rights adopted by the GA in 1948
Draft Declaration of Human Rights adopted by the IL Commission Covenant
on Economic, Social and Cultural Rights
Declaration on the Elimination of all Forms of Racial Discrimination adopted
by the GA of the UN in 1963
Regional treaties and declarations, particularly the European Convention for
the Protection of Human Rights and Fundamental Freedoms
The Charter of the Organization of American States
The American Declaration of the Rights and Duties of Man
The Draft Declaration of International Rights and Duties

International Law of Outer Space (CG)


THE INTERNATIONAL LAW OF OUTER SPACE
UN is not in any sense a world government. Its deliberations, however, may have value
as authority for principles of International Law
Where lies the force of what is called the law for outer space of today?
Some of the principles and rules are firmly established as part and parcel of
general international law and the Charter of the UN
Some derive their force from other International Instruments
Some on analogies with existing institutions and rules (mutatis mutandis)
Some are from the practice of States
Formal Aspects of the Problem
The place and legal value of the document is obviously determined by the powers
of the organ from which it emanates
It may suffice to recall that decisions adopted by the GA are no more than
recommendations
Conflicting views: Some reduce them to moral categories only, others see them in
more than a moral obligation; still others attach to them much greater value and
importance
However, it is true that with some exceptions only they cannot be viewed as
creative of legal rights or obligations
They pave the way to new principles and rules of law, which in due course, take
the shape of binding international instruments
7

The initiate the law-making process by taking us across the threshold into the
realm of law
Sometimes they may even create law, imperfect as it may be
In the case of the Declaration of Legal Principles concerning Outer Space, some
particular elements should be taken into consideration
1. The interpretation attached to it by member States of the UN, particularly those
that play a leading part in the exploration and use of outer space
Representatives of US and the Soviet Union declared that their governments
would respect the principles of the Declaration
Similar statements were made by representatives of other Member States
Almost all members of the UN attached to it a importance
By expressing their will to be bound by the provisions of the document, they
consented to be so bound, thus question of form ceases to be of essence
2. The Declaration of 1963 was preceded by other resolutions adopted by the UN.
They reflected a certain trend of development of the law in statu nascendi.
3. The practice that had grown from the very day a man-made satellite reached
outer space.
For instance, the freedom to launch objects into outer space for purposes not
affecting rights or legitimate interests of other States. Since no consent was
sought or no protest or objection was raised, it can be argued that this
practice has developed with a real consensus omnium
It can be viewed as offering full evidence of a general consent (tacitus
consensus) of States
In the formation of customary law or custom, it may be added that today
time travels much faster and makes institutions mature at a much quicker
speed than ever before
It cannot be denied, therefore, that in the light of these facts, the Declaration of 1963 is
to be viewed as the culmination of a certain process. Its great value and strength is that
it has created a framework for the law of tomorrow.

Canadian Practice Regarding Resolutions (CG)


Declarations and resolutions of the GA, while they may contribute to the evolution
of norms of international law, do not create legal rights or obligations for any state
A vote for a resolution, or acquiescence in its adoption without a vote simply
expresses a governments policy and intentions on the subject matter
Same is true of statements made in explanation and of reservations
If the government in question wishes to change its policy and announce this fact,
it will do so in an appropriate way

Some developed countries have proposed that, wherever one resolution is


referred to in a later resolution, the latter should refer to the former resolution
as adopted
The intention is that the words as adopted would incorporate by inference
interpretations, reservations and objections expressed to the former resolution at
the time it was adopted
Canada takes the position that such reservations, etc., remain valid whether or
not the as adopted formula is used, and that they need not be repeated every
time the resolution in question is referred to in a subsequent resolution

III. DECISIONS OF INTERNATIONAL ORGANIZATIONS


The Advisory Opinion On Namibia: Which U.N. Resolutions
Are Binding Under Article 25 Of The Charter? (CG)
What are the legal consequences for States of the continued presence of South Africa
in Namibia, notwithstanding Security Council (SC) Resolution 276 (1970)?
1. The continued presence of South Africa is under an obligation to withdraw its
administration from Namibia immediately and thus put an end to its occupation of
the Territory (by 13 to 2 votes)
2. States Members of the UN are under obligation to recognize the illegality of South
Africas presence in Namibia and the invalidity of its acts on behalf of or
concerning Namibia, and to refrain from any acts and in particular any dealings
with the Government of South Africa implying recognition of the legality of, or
lending support or assistance to, such presence and administration (by 11 votes to
4)
3. It is incumbent upon States which are not Members of the UN to give assistance,
within the scope of subparagraph (2) above, in the action which has been taken by
the UN with regard to Namibia
Background:
Resolution 276, adopted in 1970, had reaffirmed GA resolution 2145 (XXI) of 1966,
whereby that organ had decided that the mandate of South-West Africa was
terminated and had assumed direct responsibility for the territory until its
independence.
It also referred to the fact that SC Resolution 264 (1969) had recognized the
termination of the Mandate, and had called for the withdrawal of South Africa.
SC Resolution 276 (1970) now went further, and declared that all acts taken by the
Government of South Africa on behalf of, or concerning Namibia after the
termination of the mandate were illegal and invalid. It also recalled SC Resolution
269 (1969)
8

The 1969 Resolution condemned South Africa for its refusal to comply with
resolution 264 (1969) and, inter alia, called upon States to refrain from all dealings
with South Africa in respect of Namibia
Issue: Whether any of these resolutions were decisions in the sense that they give
rise to legal obligations upon Member States within the meaning of Article 25
Discussion:
1. GENERAL ASSEMBLY RESOLUTION 2145 (1966)
General Rule: GA possesses recommendatory rather than mandatory powers
o Exceptions: Admission of new members, approval of the budget and the
apportionment of expenses
UK Government: It could not accept the opinion because the exceptions are
not of relevance in the present context. The GA has no general competence
of an executive character, and with the exceptions referred to above, there is
no basis in the Charter for the attribution to it of a competence to adopt
resolutions which are other than recommendatory in effect
But it can pass resolutions which are legally operative, even if it is necessary
to ask for the assistance of the Security Council in making them legally
effective
According to the Court, the mandate was validly terminated but the
cooperation of the SC was needed to make it effective, in so far as securing
the withdrawal of South Africa was concerned
GAs determination of facts or legal situations, on the other hand, are not
binding in themselves or by themselves; but they have full legal validity in the
sense that they apply the rules of the Charter in particular cases
On this view, the determination made by the GA that South Africa has not
complied with the obligations of the Mandate establishes the condition of a
legal rule, in this case, the other party may consider the treaty terminated
Judge Fitzmaurice takes a contrary view saying that the lack of Charter
powers means that the Assembly has no power to terminate the mandate
o In the Voting Procedure Case, the court had found that the Assembly
could not depart from its own voting rules, even though unanimity has
been required under the League Council
o He also suggests that a dangerous precedent would be set if the
Assembly were, under some treaty, to accept an arrangement whereby
it was to exercise certain powers reserved in the Charter to the Security
Council
o The Assembly therefore cannot take executive action, it cannot purport
to revoke the mandate by pointing to an alleged executive power to this
effect under the Mandate

A resolution to revoke the Mandate, if properly exercised, could, in principle,


be a valid recommendation; and could form the basis of further enabling
action by the SC
2.

WHAT SECURITY COUNCIL RESOLUTIONS ARE BINDING UNDER ARTICLE 25 OF THE


CHARTER?
On the face of it, SC could take decisions within each of these chapters
which would be binding on UN members under the terms of Article 25
Q: Is the term decisions there meant to mean only decisions under Chapter
7 pursuant to a finding under Article 39 that there has been a threat to the
peace, breach of the peace, or act of aggression?
o The International Court found that the decisions made by the SC in
resolutions 276 (1970) were adopted in conformity with the purposes
and principles of the Charter and in accordance with Art 24 and 25. The
decisions are consequently binding on all States Members of the UN
which are thus under obligation to accept and carry them out
There seems to have been considerable confusion in the minds of UN
delegations as to under which Charter provisions these resolutions were
passed
Mr. Castren, on behalf of the Finnish government, agreed that the SC had not
intended to act within the framework of Chapter 7 of the Charter. There was
as yet no threat to the peace or act of aggression
However, he found the wording of Articles 33 and 34 applicable, to say that,
it was a situation the prolongation of which was likely to endanger the
maintenance of international peace and security
He therefore believed that the legal foundation for SC resolution 276 may be
sought in the powers conferred upon the Council in paragraph 1 of Article 36
But article 36 allows the SC to recommend appropriate procedures or
methods of adjustment in respect of a situation or dispute, the continuance
of which was likely to endanger international peace and security
No real internal evidence that the resolutions were regarded as falling within
Chapter 7: they all stopped short of a finding of a threat to the peace, breach
of the peace or act of aggression under Article 39
Therefore, they were intended to be mere recommendations

The Provisions of the Charter


Article 25 stands separately from both Chapter 6 and 7
Its provisions that UN members are bound by decisions of the SC flows from
Article 24 (1) by which members confer on the SC primary responsibility for the
maintenance of international peace and security
In par 2, Art 24, it is stated that specific powers granted to the SC for the discharge
of these duties are laid down in Chap 6-8 and 12
9

If art 25 applied only to Chap 7, one might perhaps expected to see it located in
that chapter
Moreover, there is some strength to the view that Art 48 and 49 achieve a binding
effect for Chap 7 decisions; and that if Art 25 refers to Chap 7 alone, then it is
superfluous
It is less easy to see in the wording of Chap 7 any opportunities for decision
Art 33 (2) provides that the SC may call upon parties to settle their dispute by
certain peaceful means listed in Art 33 (1)
This phrase is stronger than the phrase recommend used in Art 36 or 37
However, the Council is in effect requiring the parties to note an obligation, which
they have already accepted under Art 33 (1)
To note is that it is in reality comparatively rare for UN members to identify
themselves as parties to a dispute, and voluntarily to abstain from voting
The protection of Art 27 (3) in relation to Chap 6 is more apparent than real
The Travaux Preparatoires
When the Co-ordination Committee prepared the final draft of Art 25, it changed
the wording so as to make it clear that members would only be obliged to carry
out those Council decisions that are legally mandatory
The main controversy concerned whether the obligation to carry out decisions of
the SC was limited to decisions taken under Chap 6-8
By implication, therefore, the travaux provide some evidence that Art 25 was not
intended to be limited to Chap 7, or inapplicable to Chap 6
Subsequent Practice
Corfu Channel Incident in 1947
o The UK submitted a draft resolution recommending the dispute be referred
to the ICJ
o Before and after the adoption of this resolution, the question arose as to
whether Art 25 applied to a recommendation under Art 36
o UK contended that the Court had jurisdiction in the case under Art 36 (1) of
its Statute. It claimed that its dispute with Albania was such a matter since
the SC resolution adopted under Art 36 of the Charter was binding upon the
parties by virtue of Albanias acceptance of all the obligations of a Member
State and in conformity with Art 25
o In Shawcross statement in the Corfu Channel Case, he asserted that
recommendations under Chap 6 of this Charter, relating to methods of
settling disputes which endanger peace, are binding
o Albania insisted the opposite, and said that Art 25 could only apply to
decisions of the Council taken under Chap 7; and that therefore the SC
resolution could not provide for an indirect form of compulsory jurisdiction
o Albania, even though contending that the Court had no jurisdiction, still
voluntarily accepted to the Court

NB: 7 judges in a separate opinion stated that they could not accept that a
recommendation under Art 36 of the Charter could involve the compulsory
jurisdiction of the Court
Greek Frontier Incidents Question
o US proposed the establishment of a commission of investigation and good
offices
o Albania, Bulgaria and Yugoslavia, who were parties involved in the dispute,
objected, stating that Chap 6 could not give rise to actions which were
binding upon Members
o US, however, drew the distinction between conciliation and investigation
o While conciliation might imply voluntary will on the part of those who oppose
each other, Art 34 must be understood to give the SC the right to investigate
a dispute, regardless of WON the State being investigated approves
o If the power to decide on an investigation under Art 34 were not a binding
decision within Art 25, the peaceful settlement tasks of the UN would be
frustrated
o The outcome was inconclusive, the US draft vote failing to be adopted
because of a Soviet veto
Kashmir Dispute
o A SC resolution in 1951 calling for a plebiscite was rejected by India on the
grounds that it was a mere recommendation under Chap 6
o Other SC members merely asserted that SC resolutions, validly concluded,
were binding decisions upon the membership
o The matter was never clearly resolved
o India also complained that a draft resolution of 1957, urging demilitarization
failed to appreciate that resolutions under Chap 6 had no binding effect
o No opposition was specifically voiced to Indias view, and a resolution was
adopted calling for a plebiscite and demilitarization
Trieste Case
o Both the travaux preparatoires and the wording of the Charter lead one in
the direction that the application of Art 25 is not limited to Chap 7
resolutions, excluding Chap 6 resolutions
o Clearly, some resolutions passed under Chap 7 are never intended to be
binding, they are meant to be mere recommendations
o The binding or non-binding nature of those resolutions turns not upon
whether they are to be regarded as Chap 6 or Chap 7 resolutions but upon
whether the parties intended them to be decisions or recommendations
o Decisions to investigate could perhaps have this operative effect, though
recommendations under Art 36 or 37 would not
On the Namibia case
o UK, in reaching the conclusion that the SC can only bind members when it has
made a determination under Art 39, did not in its public statement deal with
these considerations
10

o
o
o
o

o
o
o

3.

Its Government also had decided not to avail itself of the right, under Art 66
of the Courts Statute, to submit a written or oral presentation in the Namibia
case
Therefore, there exists yet no published, closely reasoned analysis of the legal
conclusions which it has reached on this case
Although this may be subsequent practice
The extent to which the understanding is well founded in the Charter is
more open to debate than this statement allows
The UK, interestingly, is essentially adopting a teleological posture here,
placing the main weight of its argument not on the letter of the Charter, or
the travaux, but rather on the operational understanding which best allows
the SC to carry out its business
In the drafting of resolutions, Chap 7 resolutions are to be regarded as
capable of binding, while Chap 6 resolutions are not
Article 25 operates in respect of Chap 7 but not Chap 6
Art 25 is not confined to decisions in regard to enforcement action but
applies to the decisions of the SC adopted in accordance with the Charter

ARTICLE 24 AND THE OPERATION OF ARTICLE 25


ICJ found that the legal basis of SC Resolution 276 (1970) was Art 24 of the Charter
UKs broad pronouncement that the Council can only bind members when acting
under Chap 7 after a finding under Art 39, must be taken to mean that neither Art
24 nor Chap 6 can be the basis of a binding resolution
South Africa argues that there is no objective investigation that the situation was
one the continuance of which was likely to endanger international peace and
security
It regarded investigation as a condition precedent to the operation of Chap 6, in
much the same way as it believed that a formal finding under Art 39 was a
condition precedent to the operation of Chap 7
The Court in the Namibia case cited with approval the Secretary Generals
statement, made to the Council in respect of Trieste, that the Council was not tied
by the specific powers mentioned, and that the only limitations are the
fundamental principles and purposes found in Chap 1 of the Charter
The SecGen also said tat the action taken under Art 24 could bind members under
Art 25
In San Francisco, there had been an amendment which would have bound States
only by decisions taken under the specific powers of Chap 6-8 and 12, however, it
was rejected
The rejection is clear evidence that the obligation of the Members to carry out the
decisions of the SC applies equally to decisions made under Art 24 and to the
decisions made under the grant of specific powers

In ensuing the vote, the SC, by a vote of 10 in favour and Australia abstaining,
approved the 3 instruments on Trieste and formally accepted the responsibilities
devolving upon it under them
The court clearly regarded Chap 6-8 and 12 as lex specialis while Art 24 contained
the lex generalis
Resolutions validly adopted under Art 24 were binding on the membership as a
whole

IV. LIMITS OF STATE PRACTICE


The Approach of the Different Drummer: The Principle of
the Persistent Objector in IL (RL)
Ted Stein
TOPIC: Persistent Objector Principle
Mainstream accounts of the principles governing the formation and application of
rules of CIL typically include the principle of PERSISTENT OBJECTOR.
o Definition: A State has persistently objected to a rule of CIL during the
course of the rules emergence is not bound by the rule.
For a rule to become part of CIL, it must be supported by the widespread and
uniform practice of states acting on the conviction chat the practice is obligatory.
o Although it is difficult to determine how much participation is necessary for
customary law to develop, it is clear that this standard does not require
universal participation, nor the participation of the state to which the rule is
applied.
GR: A rule meeting this standard is universally binding.
o E: A state that has persistently objected to a rule is not bound by it, so long
as the objection was made manifest during the process of the rules
emergence.
o A state that fails to object prior to the time that the rule finally crystallizes
cannot claim exemption from it.
o Subsequent departures from the standard of conduct required by the rule
constitute international wrongs.
o A state that achieves independence subsequent to the final emergence of the
rule is bound by the rule as an inescapable consequence of statehood
The premise is that the international legal order lacks a hierarchically superior
sovereign authorized to prescribe rules for the subjects of the order.
o In the absence of such a sovereign, law must result from the concurrent wills
of states.
o It cannot bind a state that has manifestly and continuously refused to accept
it.
11

A survey of modern textbooks on IL and of works on the doctrine of sources in


particular failed to turn up any case where an author provided even one instance
of a state claiming or granting an exemption from a rule on the basis of that the
principleexcept the cases of Asylum and Fisheries.
o These cases concurred on the validity of the principle, but no examples were
given.
Examples where the principle could have been invoked but was not done so
o (1) Restrictive rule of the sovereign immunity
The Soviet Union has maintained a continuous objection to any in roads
on the rule of absolute immunity and did so during the very period that
the restrictive rule was becoming predominant.
Yet, there is no evidence that other states have exempted Soviet
agencies and enterprises from the application of the restrictive theory.
o (2) Law of the Sea
US had consistently maintained that three miles marked the outer limit
of the territorial sea.
There were reports that the US would engage in unspecified activities in
the zone between 3 and 12 miles off the coasts of certain other states.
US was charged with violating the territorial integrity of other UN
members.
There was no hint of recognition that the US might be in a special
position with respect to the twelve- mile rule.
o (3) United States and some other nations have consistently opposed the view
(held by the majority of states) that the deep seabed may be mined only in
accordance with the regime to be established by UNCLOS.
o (4) The practice of apartheid is almost universally considered to be a violation
of the CIL of human rights.
South Africa has always objected to a rule prohibiting systematic,
official, racial discrimination and that its opposition has been manifested
throughout the period during which the rule matured.
But this persistent objection has not stopped such from being applied to
South Africa.
The author suggests that a contemporary process be taken to help promote the
principle.
o Classic Process: Only the laws of war and of neutrality had been codified to
any significant degree.
o Prescriptive Process: focuses on the production of written instruments
embodying in fixed language authoritative, if often ambiguous, statements
of the governing rules. (This is what we follow to date)
Effects of the Shift:
o States increasingly view treaties emerging from the multilateral process as
authoritative, but the relationship between custom and treaties becomes
even more difficult and the line between the two even more indefinite.

It is reasonable to expect that the principle of the persistent objector will


acquire a new prominence in the legal discourse of states in the next few
decades.
It has lightened the burden on the applicant to show what the law is.
The respondent is given more pressure relv on arguments that
concede, at least hypothetically, the general validity of the rule cited
against it.
The principle of the persistent objector offers a way to oppose the
application of a customary rule while conceding the existence of the
rule.
Note:
o The principle of the persistent objector is firmly established in the orthodox
doctrine on the sources of IL;
o It has played a limited role in actual legal discourse of states;
o The principle of the persistent objector requires that the objection be
manifested before the customary rule is crystallized.
Conclusion: Although it is true that the principle provides no help for new states,
since the rules were already in existence at the time they emerged, it is notable
that the categories of new and old states will tend to lose their relevance as more
and more areas of international law will be subject to the multilateral processes.
o Increasingly, the law will be made up of rules that have obtained
authoritative endorsement by the international community only after the
decolonization process was well under way, if not complete.
o As such, the principle of the persistent objector will provide an equal
opportunity for all states.

12

MCRAE: DOMESTIC LAW


I. GENERAL PRINCIPLES
International Status of South West Africa (RL)
TOPIC: Applicability of Private Law in the International Context
On Dec. 6, 1949, the UNGA submitted this question to the ICJ with request for an
advisory opinion:
o What is the international status of the Territory of South-West Africa (SWA)
and what are the international obligations of the Union of South Africa
arising therefrom, in particular:
(a) Does the Union continue to have international obligations under the
Mandate for South-West Africa and if so, what are those obligations ?
(b) Are the provisions of Chapter XII of the Charter applicable and if so,
in what manner, to the Territory of South-West Africa?
(c) Does the Union of South Africa have the competence to modify the
international status of the Territory of South-West Africa, or, in the
event of a negative reply, where does competene rest to determine and
modify the international status of the Territory?
The ICJ was unanimous in saying that:
o South Africa alone is not competent to change the status of SWA
o South Africa had the same obligations vis--vis the mandated territory and
the UN as it had vis--vis the mandated territory and the League of Nations.
Sir Arnold McNair was in substantial agreement with the decision except on
certain aspects of issue (a).
o He approached the question of the relationship of IL and private law.
McNair: What is the duty of an international tribunal when confronted with a new
legal institution the object and terminology of which are reminiscent of the rules and
institutions of private law?
International law has continues to recruit many of its rules and institutions from
private systems of law (as proved by Art. 38(c) of the ICJ: apply general principles
of international law applied by civilized nations)
The way in which international law borrows from this source is not by means of
importing private law institutions lock, stock and barrel ready-made and fully
equipped with a set of rules.
It is his opinion that the duty of international tribunals in this matter is to regard
any features or terminology which are reminiscent of the rules and institutions of
private law as an indication of policy and principle rather than as directly
importing these rules and institutions.
On the underlying principle of Art. 22 and of the Mandates (focuses on the
concept of TRUST):
o The governing principle of the Mandates System is to be found in the trust.

Historically, the legal enforcement of the English Trust is that it was


something, which was binding upon the trustee; hence, it was legally
enforced.
o In almost every legal system, properties of those who are not sui juris (ie.
Minors) can be entrusted to some responsible person.
o It also vests in the trustee the management of such properties.
Three general principles common to all institutions (re: Mandates):
o (1) Control of the trustee over the property is limited he is precluded from
administering the property for his own benefit.
o (2) The trustee is under some legal obligation, based on confidence and
conscience, to carry out the trust confided to him for the benefit of some
other person or for some public purpose.
o (3) Any attempt by the trustee to absorb the property entrusted to him
would be illegal.
He basically just wanted to show that general principles of private law may be used as
basis in deciding IL matters, especially on new legal institutions, by citing the concept of
a Mandate as an example.

Diversion of Waters from the River Meuse (RL)


TOPIC: Principles of Equity in International Law
Judge Manley O. Hudson, who concurred in the majority judgment, discussed
principles of international equity in his separate opinion.
Principles of Equity have long been considered as part of IL and have often been
applied by international tribunals.
Majority of international lawyers agree that the words law and equity are to be
understood to mean general principles of justice.
The ICJ has not been expressly authorized by its Statute to apply equity separately
from law, nor does it expressly direct its application of IL.
o Art. 38 of the SICJ directs the application of general principles of law
recognized by civilized nations and in more than one nation, principles of
equity have an established place in the legal system.
The ICJs recognition of equity as a part of IL is in no way restricted by the special
power conferred upon it to decide a case ex aquo et bono, if the parties agree
thereto
o Hence, the ICJ is given some freedom to consider principles of equity as part
of IL.
Important principle of equity: where two parties have assumed an identical or a
reciprocal obligation, one party which is engaged in a continuing nonperformance of that obligation should not be permitted to take advantage of a
similar non-performance of that obligation by the other party.
o Found in maxims of equity such as: Equality is equity; He who seeks equity
must do equity
However, the ICJ must make a very sparing application of the principle.
1

It is not to be thought that a complete fulfillment of all its obligations under


a treaty must be proved as a condition precedent to a States appearing
before an international tribunal to seek an interpretation of that treaty.
Yet, the tribunal is bound by IL not to shrink from applying a principle of such
obvious fairness.

II. APPLICATION OF INTERNATIONAL LAW

Alien Tort Statuteestablished jurisdiction for anyone with a colorable claim under
international law; the idea is that if you commit such a heinous crime, then any tribunal
should be able to try you because the whole world would agree how bad the crime was
The US courts eventually ruled in favor of Filartigas, rewarding them roughly $10.4
million. Torture was clearly a violation of international law and the US did have
jurisdiction over the case since claim was lodged when both parties were inside the US.
Additionally, Pena had sought to dismiss the case based on forum non conveniens
saying that Paraguay was a more convenient location for the trial, but did not succeed.

Filartiga v. Pena-Irala (EM)


FACTS:
Filartiga's 17 years old son, Joelito, was kidnapped and tortured to death by D, Pena,
in Paraguay. P claims that this was done in retaliation to his father's political activities
and beliefs.
P brought a criminal case in Paraguayan court, but his attorney was
arrested, threatened with death, and supposedly disbarred without just cause. 4 years
later, another man confessed to the murder, claiming he found Joelito and his wife
together, and said the crime was one of passion, but he was never convicted, and
also the evidence showed that Joelito's death "was the result of professional
methods of torture."
In 1978, Dolly Filrtiga and (separately) D (Pea) came to the US. Dolly applied for
political asylum, while Pea stayed under a visitor's visa. Dolly learned of Pea's
presence and reported it to the Immigration and Naturalization Service, who arrested
and deported Pea for staying past the expiration of his visa. When Pea was taken to
the Brooklyn Navy Yard pending deportation, Dolly lodged a civil complaint in U.S.
courts for Joelito's wrongful death by torture, asking for damages in the amount of
$10 million.
ISSUE:
W/N US courts can punish non-US citizens for tortuous acts committed outside the US
that were in violation of the law of nations or any treaties to which the US is a party
HELD:
Yes. This case extended the jurisdiction of US courts to tortuous acts committed around
the world.
The appellants argued that Penas actins had violated wrongful death statutes, the UN
Charter, the Universal Declaration of Human Rights, the American Declaration of the
Rights and Duties of Man, and other customary international law. Petitioner claimed
the US courts had jurisdiction to hear the case under the Alien Tort Statute, which
grants district courts original jurisdiction to hear tort claims brought by an alien that
have been committed in violation of the law of nations or a treaty of the US. This
case interpreted that statute to grant jurisdiction over claims for torts committed both
within the US and abroad.

Mortensen v. Peters (MT)


Facts:
The appellant being a foreign subject and master of a vessel registered in a foreign
country, exercised the method of fishing known as otter trawling at a point within
the Moray Firth more than three miles from the shore, but to the west of a line
drawn from Duncans by Head in Caithness to Rattray point in Aberdeenshire.
That being found within the British territory at Grimsby, he was summoned to the
th
Sheriff Court to answer to a complaint against him for having contravened the 7
section of the Herring Fisher Act 1889, and the by-law of the Fishery Board
thereunder made, and was convisted.
Appellants argument: that the statutes creating offenses must be presumed to
apply 1-to British subjects and 2-to foreign subjects in British territory. The
appellant is admittedly not a British subject and further argued that the locus
delicti being in the sea beyond the three-mile limit was not within the British
territory and that consequently the appellant was not included in the prohibition
of the statute.
Issue:
WON the locus being spoken of is beyond what the legislature may assert right to
effect by legislation against all whatsoever for the purpose of regulating methods of
fishing?YES
Held and Ratio:
The locus although outside the three-mile limit is within the bay known as Moray
Firth and Moray Firth is within intra fauces terrae (case explicitly says that this
phrase does not have a specific meaning but from context I think it means within
jurisdiction of the Brits)
First, the dicta of the Scottish institutional writers seem to show that it would be
no usurpation according to the law of Scotland to consider it.when the sea is
enclosed in bays, creeks, or otherwise is capable of any bounds or as within the
points of such lands or within the view of such shores then it may become proper,
but with reservation of passage for commerce as in the land.
Second, the same statute puts forward claims to what are at least analogous
places.
2

Third, there are many instances to be found decided where the right of a nation to
legislate for waters more or less landlocked or land embraced although beyong
the three mile limit has been admitted.
It seems therefore without laying down the proposition that the Moray Firth is for
every purpose within the territorial sovereignty, it can at least be clearly said that
the appellant cannot make out his proposition that it is inconceivable that the
British Legislature should attempt for fishery regulation to legislate against all and
sundry is such a place.
It is therefore of opinion that the conviction was right, that both questions should
be answered in the affirmative, and that appeal should be dismissed.

In the Matter of a Reference as to the Powers of the


Corporation of the City of Ottawa and the Corporation of
the Village of Rockcliffe Park to Levy Rates on Foreign
Legations and High Commissioners Residences (MT)
Facts:
No facts stated
Issues:
Is it within the powers of the council of the corporation of the city of Ottawa to levy
rates on:--NO
Properties in Ottawa owned and occupied as Legations by the Governments of the
French State, the US and Brazil respectivelyNO
On property in Ottawa owned and occupied by his Majesty in rights of the UK as
the office and residences of the High Commissioner for the UKNO
On property in Ottawa owned and occupied by his Majesty in right of Australia as
the Residence of the High Commissioner for the Commonwealth of AustraliaNO
And is it within the powers of the council of corporation of the Village of Rockliffe Park
to levy rates on property owned and occupied by the Govt of the US as the legation of
the US in Rockliffe Park?NO
Held and Ratio:
As regards the properties owned and occupied by the High Commissioner for the
UK and the High Commissioner for the Commonwealth of Australia, the powers of
the council of the corporation of the city of Ottawa do not extend to these
properties since they are embraced within the expressed exemption of Crown
property by enactments of the Assessment Act.
Amongst the principles of international law which have acquired validity in the
domestic law of England and therefore, in the domestic law of Canada, it is
generally admitted that a Foreign Minister os not subject to the laws of the State
to which he has been sent; he enjoys an entire independence of the jurisdiction
and authority of the latter State; and there exists towards him an implied consent
that he shall possess all the privileges which his sovereign intended that he should
retain as those privileges are essential to the dignity of his sovereign and to the
duties he is bound to perform.

As a consequence he is exempt from the jurisdiction of the courts of the country in


which he resides as a diplomatic representative.
Therefore there is a necessary consequence of legal impossibility of collecting
taxes against foreign states of diplomats that such taxes or rates may not be
assessed and levied on the properties owned and occupied by them and used for
diplomatic purposes.

Trendtex Trading Corp. v. Central Bank of Nigeria


Facts:
No facts stated but according to my own construction
The are two schools of thought:
Doctrine of incorporationit says that the rules of international law are
incorporated into English law automatically and considered to be part of English
law unless they are in conflict with an Act of Parliament.
Doctrine of transformationit say that the rules of international law are not to be
considered as part of English law except insofar as they have been already
adopted and made part of our law by the decisions of the judges or by Act of
Parliament or long established custom.
Their difference is vital when you are faced with a change in the rules of
international law.
Under the doc. Of incorporation, when the rules of international law change, our
English law changes with them. But, under the doctrine of transformation, the
English law does not change. It is bound by precedent.
Issue:
Which is correct? Or better?
Held and Ratio:
The doctrine of incorporation is correct. Otherwise, the courts would not
recognize a change in the rules of international law and it is certain that
international law does change.
Conclusion: seeing that rules of international law have changed and do change
and that the courts have been given effect to the changes without any act of
parliament, it follows that the rules of international law as existing from time to
time, do form part of the English Law. it follows too that a decision form this court
as to what was the ruling of international law 50 or 60 years ago is not binding on
this court today. International law knows no rule of stare decisis. If this court
today is satisfied that the rule of international law on a subject has changed from
what it was before, it can give effect to that change and apply the change to Eng
Law, without waiting for the House of Lords to do it.

PILCaseDigest:JurisdictionofStates

JURISDICTIONOVERPERSONS&ECONOMICACTIVITIES

(ii)ImmunityfromJurisdiction
A.
StateImmunityandActofState
1. Sandersv.Veridiano(NO)

TOPIC:JurisdictionalImmunity

G.R.No.L46930

Petitioner:DALESANDERS,ANDA.S.MOREAU,JR
Respondent:HON.REGINOT.VERIDIANOII,asPresidingJudge,BranchI,Courtof
First Instance of Zambales, Olongapo City, ANTHONY M. ROSSI and RALPH L.
WYERS

J.Cruz

Doctrine: Official acts of agents of another state(provided that they are granted
immunity) are covered by such priviledge; In order for a state to be sued it must
consenttoit.

Sanderswas,atthetimetheincidentinquestionoccurred,thespecialservices
directoroftheU.S.NavalStation(NAVSTA)inOlongapoCity,whileMoreauwas
thecommandingofficeroftheSubicNavalBase.
Respondents were both employed as gameroom attendants in the special
servicesdepartmentoftheNAVSTA,theformerhavingbeenhiredin1971and
the latter in 1969. They were informed that they are now just part time
employees. They protested to the U.S. Department of Defense which ordered
theirreinstatementtofulltimestatuswithbackwages.
Sanders sent a letter to Moreau disagreed with this recommendation and
reportedthatResponderstendtoalienatetheircoworkersandweredifficultto
supervise.
Beforethegrievancehearingwaswasstarted,aletterpurportedlycomingfrom
MoreauasthecommandinggeneraloftheU.S.NavalStationinSubicBaywas
sent to the Chief of Naval Personnel explaining the change of the private
respondent's employment status and requesting concurrence therewith, but
thiswassignedbyMoore,bydirection.
Respondents filed a case in the CFI for damages. Sanders and Moreau filed a
motion to dismiss arguing that the court has no jurisdiction because the said
actswereperformedinthedischargeoftheirduties.
The trial court ruled in favor of the respondent and ordered a writ of
preliminaryattachmenttothepropertiesofMoreau.Hencethispetition.

RRV:

RossiandWyersaregameroomattendants,theywereregularemployeesbutwere
revertedtoparttimeemployees.RossiandWyersappealedsuchdecisionwhichwas
granted and order a reinstatement of the two. Sanders wrote a letter to Moreau
whowasthecommandingofficeroftheSubicNavalBase,explaininghisgrievanceto
the decision. Before a grievance meeting was commenced, a letter was sent,
purportedly from Moreau, ordered the reversal of the decision. Rossi and Wyers
filed a case for damages in the CFI. The issue is whether Sanders were acting in
officialcapacitywhichgrantsthemimmunity.ThecourtruledinfavororSanders,it
reasonedthattheletterswrittenwerewithinhisofficialcapacity.Hewastoreport
to his superior about personnel under his supervision. Assuming arguendo that it
wasnot,hehadtherighttoreacttocriticismsimpugneddirectlyuponhim.

Issue:

Facts:

Whetherthepetitionerswereactingofficialcapacitieswhichmeritsthemthegrant
ofjurisdictionalimmunity.YES
Ratio:
o

Themereallegationthatagovernmentfunctionaryisbeingsuedinhispersonal
capacity will not automatically remove him from the protection of the law of
publicofficersand,ifappropriate,thedoctrineofstateimmunity.
Themereinvocationofofficialcharacterwillnotsufficetoinsulatehim
fromsuabilityandliabilityforanactimputedtohimasapersonaltort
committedwithoutorinexcessofhisauthority.
Baerv.Tizon,Syquiav.AlmedaLopez,UnitedStatesofAmericav.Ruiz,
consistentlyheldthattheUShasnotconsentedtobesuedandthesuit
couldnotprosperbecausetheactscomplainedofwerecoveredbythe
doctrineofstateimmunity
1

PILCaseDigest:JurisdictionofStates
o Inthepresentcasethattheactsofthepetitionerswereperformedbythemin
thedischargeoftheirofficialduties.Sanders,asdirectorofthespecialservices
department of NAVSTA, undoubtedly had supervision over its personnel,
including the private respondents, and had a hand in their employment, work
assignments,discipline,dismissalandotherrelatedmatters.
ItisnotdisputedthattheletterSandershadwrittenwasinfactareply
to a request from his superior, the other petitioner, for more
informationregardingthecaseoftheprivaterespondents.
Even in the absence of such request, he still was within his rights in
reacting to the hearing officer's criticismin effect a direct attack
againsthimthatSpecialServiceswaspracticing"anautocraticform
ofsupervision.

Giventheofficialcharacteroftheabovedescribedletters,wehavetoconclude
thatthepetitionerswere,legallyspeaking,beingsuedasofficersoftheUnited
Statesgovernment
Astheyhaveactedonbehalfofthatgovernment,andwithinthescope
of their authority, it is that government, and not the petitioners
personally,thatisresponsiblefortheiracts.
There should be no question by now that such complaint cannot
prosperunlessthegovernmentsoughttobeheldultimatelyliablehas
givenitsconsentto'besued.
The SC , in a line of cases, upheld the doctrine of state immunity as
applicable not only to our own government but also to foreign states
soughttobesubjectedtothejurisdictionofourcourts.

Itwouldseemonlyproperforthecourtsofthiscountrytorefrainfrom
taking cognizance of this matter and to treat it as coming under the
internal administration of the said base.(Parties in this case were
AmericansandNavalBaseemployees)

WHEREFORE,thepetitionisGRANTED.ThechallengedordersdatedMarch8,1977,
August 9,1977, and September 7, 1977, are SET ASIDE. The respondent court is
directed to DISMISS Civil Case No. 2077O. Our Temporary restraining order of
September26,1977,ismadePERMANENT.Nocosts.

RPUSBaseTreaty,ArtIII(immunity)

Petitioners:UnitedStatesofAmericaandabunchofotherpeople
Respondents:wholebunchofpeeps

SUMMARYof4consolidatedcases(HELD):
G.R.No.76607(Barbershopbidding)
There was a bidding war on a barbershop concession inside Clark Airbase. The
onesthatlostthebiddingfiledasuitagainsttheUSofficers.Theyfiledmotionto
dismissbecausetheywereimmunefromsuitsincetheywereemployeesofthe
US Air Force. Lower court denied motion because there was a commercial
transaction.(NOTIMMUNE.CommercialTransaction.Remandedfortrialonfacts
ofthecase)
G.R.No.79470(Peeinsoup)
CookwasdismissedfromRecreationalCenterRestoinCampJohnHaybecause
he peed into the soup he served. US said, dismiss because US officers enjoy
immunity. Lower court denied because although he was an officer he acted
beyondhisdutiesamountingtoillegalactsdoneinbadfaithandthattherewasa
CBAinvolvedinemployment.(NOTIMMUNE.Therestowasaproprietaryactivity
andnotanofficialactoftheState.TheCBAagreement,acontract,wasawaiver
ofimmunity.ButtheSCsaidthattheywerenotliable,itwasclearthecookpeed
insoupandtherewasaproperinvestigationanddueprocessforcook)
G.R.No.80018(Buybust)
Airforce Officers catch barracksboy in a buybust operation, which led to his
dismissal.Civilcaseagainsttheofficers,theydidnthaveUSlawyerssotheygot
localcounselatfirstandfiledanswers.WhenUSgovernmentfinallygottothem
filed for motion to dismiss. Lower court denied because immunity is only for
criminal cases and not civil and that the US officers had already submitted
answerstothecourt.(IMMUNE,asfortheissueonfilingofanswers,immunity
cannotbewaivedbycounselitmustbeembodiedinaninstrument)
G.R.No.80258(dogbiting/theft)

2. USv.Guinto(RC)
Topics:DoctrineofStateImmunity

Treaties:

Conflicting facts: Accdg to respondents they filed damages because the


Americans handcuffed them and had their dogs attack them. Accdg to the
petitioners,theycaughttherespondentswhiletheystealing,thedogbiteswere
2

PILCaseDigest:JurisdictionofStates
there because they had tried to evade capture. The motion to dismiss was
deniedbecausethefactsofthecaseshouldbeventilatedintrialssinceoneset
of them alleges that the US officers were exceeding their authority and doing
illegalshiz.(REMANDEDtodeterminewhichfactswerecorrect,ifinthecourse
oftheirdutiesthenIMMUNE)

concessionaires,biddersandBase,sothatswhyRespondentscouldbesued.So
thatswhyitwasappealed.

G.R.No.79470,

Facts:(youcanskipthis.Oknasummaries)
These cases have been consolidated because they all involve the doctrine of state
immunity.TheUnitedStatesofAmericawasnotimpleadedinthecomplaintsbelow
but has moved to dismiss on the ground that they are in effect suits against it to
which it has not consented. It is now contesting the denial of its motions by the
respondentjudges.

G.R.No.76607,

theprivaterespondentsaresuingseveralofficersoftheU.S.AirForcestationed
inClarkAirBaseinconnectionwiththebiddingconductedbythemforcontracts
forbarberservicesinthesaidbase.
The bidding was won by Ramon Dizon, over the objection of the private
respondents, who claimed that he had made a bid for four facilities, including
theCivilEngineeringArea,whichwasnotincludedintheinvitationtobid.
respondents complained to the Philippine Area Exchange (PHAX). The latter,
throughitsrepresentatives,petitionersYvonneReevesandFredericM.Smouse
explainedthattheCivilEngineeringconcessionhadnotbeenawardedtoDizon
as a result of the bidding. Dizon was already operating this concession, then
knownastheNCOclubconcession,andtheexpirationofthecontracthadjust
beenextended
respondents filed a complaint in the court below to compel PHAX and the
individual petitioners to cancel the award to defendant Dizon, to conduct a
rebiddingforthebarbershopconcessionsandtoallowtheprivaterespondents
by a writ of preliminary injunction to continue operating the concessions
pendinglitigation.
petitioners filed a motion to dismiss and opposition to the petition for
preliminaryinjunctiononthegroundthattheactionwasineffectasuitagainst
the United States of America, which had not waived its nonsuability. The
individual defendants, as official employees of the U.S. Air Force, were also
immunefromsuit.
Lower Court noted that there was a commercial transaction between the

Fabian Genove filed a complaint for damages against petitioners n for his
dismissal as cook in the U.S. Air Force Recreation Center at the John Hay Air
Station in Baguio City. It had been ascertained after investigation that Genove
hadpouredurineintothesoupstockusedincookingthevegetablesservedto
theclubcustomers.
Respondent,asclubmanager,suspendedhimandthereafterreferredthecase
to a board of arbitrators conformably to the collective bargaining agreement
betweentheCenteranditsemployees.Theboardunanimouslyfoundhimguilty
andrecommendedhisdismissal.
On March 13, 1987, the defendants, joined by the United States of America,
movedtodismissthecomplaint,allegingthatLamachia,asanofficeroftheU.S.
AirForcestationedatJohnHayAirStation,wasimmunefromsuitfortheacts
done by him in his official capacity. They argued that the suit was in effect
againsttheUnitedStates,whichhadnotgivenitsconsenttobesued.
LowerCourtdeniedthemotionbecausealthoughrespondentswereUSofficers,
theyactedbeyondtheirdutiestakingthemoutofthemantleofimmunity.So
USisappealingthistoo.

G.R.No.80018,

Luis Bautista, who was employed as a barracks boy in Camp O' Donnell, an
extension of Clark Air Base, was arrested following a buybust operation
conductedbytheindividualpetitionersherein,officersoftheU.S.AirForceand
special agents of the Air Force Office of Special Investigators (AFOSI). On the
basisoftheswornstatementsmadebythem,aninformationforviolationofR.A.
6425,otherwiseknownastheDangerousDrugsAct,wasfiledagainstBautistain
theRegionalTrialCourtofTarlac.
The abovenamed officers testified against him at his trial. As a result of the
filingofthecharge,Bautistawasdismissedfromhisemployment.Hethenfiled
acomplaintfordamagesagainsttheindividualpetitionershereinclaimingthat
itwasbecauseoftheiractsthathewasremoved.
Atfirst,thepetitionersonlyhadlocalcounselandwereabletosubmitanswers
andaskforextensionssincetheywerentadequatelyrepresentedbyUScounsel.
FinallyUScounselwereabletogettothemand
3

PILCaseDigest:JurisdictionofStates

The ground invoked was that the defendants were acting in their official
capacity when they did the acts complained of and that the complaint against
themwasineffectasuitagainsttheUnitedStateswithoutitsconsent.
ThemotionwasdeniedbytherespondentjudgeinhisorderdatedSeptember
11, 1987, which held that the claimed immunity under the Military Bases
Agreementcoveredonlycriminalandnotcivilcases.Moreover,thedefendants

hadcomeunderthejurisdictionofthecourtwhentheysubmittedtheiranswer.

G.R.No.80258,

acomplaintfordamageswasfiledbytheprivaterespondentsagainsttheherein
petitioners (except the United States of America), for injuries allegedly
9
sustainedbytheplaintiffsasaresultoftheactsofthedefendants. Thereisa
conflict of factual allegations here. According to the plaintiffs, the defendants
beatthemup,handcuffedthemandunleasheddogsonthemwhichbitthemin
several parts of their bodies and caused extensive injuries to them. The
defendantsdenythisandclaimtheplaintiffswerearrestedfortheftandwere
bitten by the dogs because they were struggling and resisting arrest, The
defendants stress that the dogs were called off and the plaintiffs were
immediatelytakentothemedicalcenterfortreatmentoftheirwounds.
In a motion to dismiss the complaint, the United States of America and the
individuallynameddefendantsarguedthatthesuitwasineffectasuitagainst
theUnitedStates,whichhadnotgivenitsconsenttobesued.Thedefendants
were also immune from suit under the RPUS Bases Treaty for acts done by
themintheperformanceoftheirofficialfunctions.
Lower court judge denied saying: the defendants certainly cannot correctly
arguethattheyareimmunefromsuit.Theallegations,ofthecomplaintwhichis
soughttobedismissed,hadtobehypotheticallyadmittedandwhateverground
the defendants may have, had to be ventilated during the trial of the case on
the merits. The complaint alleged criminal acts against the individuallynamed
defendantsandfromthenatureofsaidactsitcouldnotbesaidthattheyare
ActsofState,forwhichimmunityshouldbeinvoked.

ISSUE/RATIO:
CANSTATEIMMUNITYBEINVOKED?

ONSTATEIMMUNITY:(JUSTREADTHISPART)

The rule that a state may not be sued without its consent, now expressed in
ArticleXVI,Section3,ofthe1987Constitution,isoneofthegenerallyaccepted
principles of international law that we have adopted as part of the law of our
landunderArticleII,Section2.
Even without such affirmation, we would still be bound by the generally
acceptedprinciplesofinternationallawunderthedoctrineofincorporation.
DoctrineofstateimmunityisbasedonthejustificationgivenbyJusticeHolmes
that"therecanbenolegalrightagainsttheauthoritywhichmakesthelawon
whichtherightdepends."Thereareotherpracticalreasonsfortheenforcement
ofthedoctrine.Inthecaseoftheforeignstatesoughttobeimpleadedinthe
localjurisdiction,theaddedinhibitionisexpressedinthemaximparinparem,
non habet imperium. All states are sovereign equals and cannot assert
jurisdictionoveroneanother.Acontrarydispositionwould,inthelanguageofa
celebratedcase,"undulyvexthepeaceofnations."
It is also applicable to complaints filed against officials of the state for acts
allegedlyperformedbytheminthedischargeoftheirduties.Theruleisthatif
the judgment against such officials will require the state itself to perform an
affirmative act to satisfy the same, such as the appropriation of the amount
neededtopaythedamagesawardedagainstthem,thesuitmustberegardedas
against the state itself although it has not been formally impleaded. In such a
situation,thestatemaymovetodismissthecomplaintonthegroundthatithas
beenfiledwithoutitsconsent.
The doctrine is sometimes derisively called "the royal prerogative of
dishonesty"becauseoftheprivilegeitgrantsthestatetodefeatanylegitimate
claimagainstitbysimplyinvokingitsnonsuability.
Infact,thedoctrineisnotabsoluteanddoesnotsaythestatemaynotbesued
underanycircumstance.Onthecontrary,therulesaysthatthestatemaynot
be sued without its consent, which clearly imports that it may be sued if it
consents.
Theconsentofthestatetobesuedmaybemanifestedexpresslyorimpliedly.
Expressconsentmaybeembodiedinagenerallaworaspeciallaw.Consentis
impliedwhenthestateentersintoacontractorititselfcommenceslitigation.
ThegenerallawwaivingtheimmunityofthestatefromsuitisfoundinActNo.
3083,underwhichthePhilippinegovernment"consentsandsubmitstobesued
upon any moneyed claim involving liability arising from contract, express or
implied,whichcouldserveasabasisofcivilactionbetweenprivateparties.
GR: When the government enters into a contract, it is deemed to have
descended to the level of the other contracting party and divested of its
4

PILCaseDigest:JurisdictionofStates
sovereign immunity from suit with its implied consent. E: Express consent is
effected only by the will of the legislature through the medium of a duly
enacted statute. We have held that not all contracts entered into by the
government will operate as a waiver of its nonsuability; distinction must be
madebetweenitssovereignandproprietaryacts.
GR: Waiver is also implied when the government files a complaint, thus
opening itself to a counterclaim. E: As for the filing of a complaint by the
government, suability will result only where the government is claiming
affirmativerelieffromthedefendant.
InthecaseoftheUnitedStatesofAmerica,thecustomaryruleofinternational
law on state immunity is expressed with more specificity in the RPUS Bases
Treaty.ArticleIIIthereofprovidesasfollows:
It is mutually agreed that the United States shall have the rights,
powerandauthoritywithinthebaseswhicharenecessaryforthe
establishment,use,operationanddefensethereoforappropriate
for the control thereof and all the rights, power and authority
withinthelimitsoftheterritorialwatersandairspaceadjacentto,
or in the vicinity of, the bases which are necessary to provide
accesstothemorappropriatefortheircontrol.

AccdgtoCaseLaw:
o Baerv.Tizon:Theinvocationofthedoctrineofimmunityfromsuitofa
foreignstatewithoutitsconsentisappropriate.
o Raquizav.Bradford:'Itiswellsettledthataforeignarmy,permittedto
marchthroughafriendlycountryortobestationedinit,bypermission
of its government or sovereign, is exempt from the civil and criminal
jurisdictionoftheplace.'
o Syquia v. Almeda Lopez, where plaintiffs as lessors sued the
Commanding General of the United States Army in the Philippines,
seekingtherestorationtothemoftheapartmentbuildingstheyowned
leasedtotheUnitedStatesarmedforcesstationedintheManilaarea.
Court said: 'It is clear that the courts of the Philippines including the
Municipal Court of Manila have no jurisdiction over the present case
for unlawful detainer. The question of lack of jurisdiction was raised
and interposed at the very beginning of the action. The U.S.
Governmenthasnotgivenitsconsenttothefilingofthissuitwhichis
essentiallyagainsther,thoughnotinname.Moreover,thisisnotonlya
case of a citizen filing a suit against his own Government without the
latter's consent but it is of a citizen firing an action against a foreign

government without said government's consent, which renders more


obviousthelackofjurisdictionofthecourtsofhiscountry.
Itbearsstressingatthispointthattheaboveobservationsdonotconferonthe
United States of America a blanket immunity for all acts done by it or its
agentsinthePhilippines.
OtherthanWAIVER,aStatemaybesuedwhen

Theproceedingsariseoutofcommercialtransactionsoftheforeignsovereign,
its commercial activities or economic affairs. It does not apply where the
contractrelatestotheexerciseofitssovereignfunctions.

The other petitioners in the cases before us all aver they have acted in the
discharge of their official functions as officers or agents of the United States.
However, this is a matter of evidence. The charges against them may not be
summarily dismissed on their mere assertion that their acts are imputable to
theUnitedStatesofAmerica,whichhasnotgivenitsconsenttobesued.Infact,
thedefendantsaresoughttobeheldanswerableforpersonaltortsinwhichthe
United States itself is not involved. If found liable, they and they alone must
satisfythejudgment.

HELD:
G.R.No.80018(Buybustoperation)

individuallynamed petitioners therein were acting in the exercise of their


officialfunctionswhentheyconductedthebuybustoperationagainstthe
complainant and thereafter testified against him at his trial. The said
petitioners were in fact connected with the Air Force Office of Special
Investigators and were charged precisely with the function of preventing
the distribution, possession and use of prohibited drugs and prosecuting
those guilty of such acts. It cannot for a moment be imagined that they
were acting in their private or unofficial capacity when they apprehended
and later testified against the complainant. It follows that for discharging
their duties as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has not given its
consenttobesued.
Express waiver of immunity cannot be made by a mere counsel of the
governmentbutmustbeeffectedthroughadulyenactedstatute.Neither
5

PILCaseDigest:JurisdictionofStates
does such answer come under the implied forms of consent as earlier
discussed.

G.R.No.80258(dogbiting/theft)

The contradictory factual allegations in this case deserve in our view a closer
studyofwhatactuallyhappenedtotheplaintiffs.Lackingthisinformation,this
Courtcannotdirectlydecidethiscase.Theneededinquirymustfirstbemadeby
thelowercourtsoitmayassessandresolvetheconflictingclaimsoftheparties
onthebasisoftheevidencethathasyettobepresentedatthetrial.Onlyafter
it shall have determined in what capacity the petitioners were acting at the
timeoftheincidentinquestionwillthisCourtdetermine,ifstillnecessary,if
thedoctrineofstateimmunityisapplicable.

G.R.No.76607,(barbershopbidding)

G.R.No.79470(peeinsoup),

privaterespondentGenovewasemployedasacookintheMainClublocatedat
theU.S.AirForceRecreationCenter,alsoknownastheOpenMessComplex,at
John Hay Air Station. As manager of this complex, petitioner Lamachia is
responsible for eleven diversified activities generating an annual income of $2
million. Under his executive management are three service restaurants, a
cafeteria, a bakery, a Class VI store, a coffee and pantry shop, a main cashier
cage,anadministrativeoffice,andadecentralizedwarehousewhichmaintainsa
stock level of $200,000.00 per month in resale items. He supervises 167
employees, one of whom was Genove, with whom the United States
governmenthasconcludedacollectivebargainingagreement.
From these circumstances, the Court can assume that the restaurant services
offered at the John Hay Air Station partake of the nature of a business
enterprise undertaken by the United States government in its proprietary
capacity.SuchservicesarenotextendedtotheAmericanservicemenforfree.
Neitherdoesitappearthattheyareexclusivelyofferedtotheseservicemen;on
the contrary, it is well known that they are available to the general public as
well,includingthetouristsinBaguioCity,manyofwhommakeitapointtovisit
JohnHayforthisreason.
The consequence of this finding is that the petitioners cannot invoke the
doctrine of state immunity to justify the dismissal of the damage suit against
them by Genove. Such defense will not prosper even if it be established that
they were acting as agents of the United States when they investigated and
later dismissed Genove. For that matter, not even the United States

governmentitselfcanclaimsuchimmunity.Thereasonisthatbyenteringinto
the employment contract with Genove in the discharge of its proprietary
functions,itimpliedlydivesteditselfofitssovereignimmunityfromsuit.
While suable, the petitioners are nevertheless not liable. It is obvious that the
claimfordamagescannotbeallowedonthestrengthoftheevidencebeforeus,
whichwehavecarefullyexamined.

The barbershops subject of the concessions granted by the United States


governmentarecommercialenterprisesoperatedbyprivateperson's.Theyare
not agencies of the United States Armed Forces nor are their facilities
demandableasamatterofrightbytheAmericanservicemen.
All the barbershop concessionaires are under the terms of their contracts,
required to remit to the United States government fixed commissions in
consideration of the exclusive concessions granted to them in their respective
areas.
This being the case, the petitioners cannot plead any immunity from the
complaintfiledbytheprivaterespondentsinthecourtbelow.Thecontractsin
questionbeingdecidedlycommercial.
Caseisremandedtobetriedonthefacts

3. Chuidianv.SB(JG)
TOPIC:ActsofStatecarriedoutwithinitswonterritorycannotbechallengedinthe
courtsofotherStates.
G.R.No.139941.January19,2001
Petitioner:VicenteChuidian
Respondents:SandiganbayanandtheRepublicofthePhilippines
Ponente:YnaresSantiago,J.

FACTS:

Petitioner Vicente Chuidian was alleged to be a dummy of spouses Ferdinand


andImeldaMarcosinthespousesillegallyacquiredcompanies.

HeallegedlyinducedPhilippineExportandForeignLoanGuaranteeCorporation
(PHILGUARANTEE), the Board of Investments (BOI) and the Central Bank, to
6

PILCaseDigest:JurisdictionofStates
execute a loan guarantee of $25Million USD in favor of the Asian Reliability
Company, Incorporated (ARCI), of which 98% was owned by the former
sometimeinSeptember1980.

In1987,thegovernmentfiledbeforetheSandiganbayanacomplaintagainstthe
Marcos spouses, several government officials, cronies of the Marcoses
(includingChuidian),seekingforthereconveyanceoftheillgottenwealth.

However, Chiudian defaulted on his obligations and instead invested the


proceedsoftheloaninothercorporations.
o

Although ARCI had received the proceeds of the loan guaranteed by


Philguarantee, the former defaulted in the payments thereof,
compellingPhilguaranteetoundertakepaymentsforthesame.

The Republic of the Philippines filed a motion for issuance of a writ of


attachmentover the L/C, alleging that Chuidian fraudulently misapplied the
fundsofARCI.

Consequently, in June 1985, Philguarantee sued Chuidian before the


SantaClaraCountySuperiorCourtformisuseoffundsandviolationsof
thetermsoftheloan.

The Sandiganbayan issued a Resolution ordering the issuance of a writ of


attachmentagainsttheL/Cassecurityforthesatisfactionofjudgment.

Fouryearslater,Chuidianfiledamotiontolifttheattachmentandamotionto
requiretheRepublictodeposittheL/Cinaninterestbearingaccount,towhich
theRepublicopposed.
o The Republic alleged that Chuidians absence was not the only
groundfortheattachmentand,therefore,hisbelatedappearance
before the Sandiganbayan is not a sufficient reason to lift the
attachment.Moreover, allowing the foreign judgment as a basis
for the lifting of the attachment would essentially amount to an
abdication of the jurisdiction of the Sandiganbayan to hear and
decidetheillgottenwealthcaseslodgedbeforeitindeferenceto
thejudgmentofforeigncourts.

TheSandiganbayandeniedthetwomotionsfiledbyChuidian.

Three months before the EDSA revolution, Philguarantee entered into a


compromiseagreementwithChuidianwherebypetitionerChuidianshallassign
andsurrendertitletoallhiscompaniesinfavorofthePhilippinegovernment.
o

exchange for which the government would assume certain liabilities of PNB,
includingtheL/CofChuidian.

In return, Philguarantee shall absolve Chuidian from all civil and


criminal liability, and the Philippine government shall pay Chuidian
US$5,300,000.00 through an irrevocable Letter of Credit (L/C) by the
PhilippineNationalBank(PNB).

WiththeadventoftheAquinoadministration,thePCGGsequesteredtheassets
ofChuidian,includingtheL/C.Becauseofthis,ChuidianfiledbeforetheUnited
StatesDistrictCourt,CentralDistrictofCalifornia,anactionagainstPNBseeking,
amongothers,tocompelPNBtopaytheproceedsoftheL/C.
o

PNB countered that it cannot be held liable for a breach of contract


underprinciplesofillegality,internationalcomityandactofstate,and
thusitisexcusedfrompaymentoftheL/C.

Philguarantee intervened in said action, raising the same issues and


arguments it had earlier raised in the action before the Santa Clara
SuperiorCourt,allegingthatPNBwasexcusedfrommakingpayments
on the L/C since the settlement was void due to illegality, duress and
fraud.

The Federal Court rendered judgment ruling:(1) in favor of PNB excusing the
said bank from making payment on the L/C; and (2) in Chuidians favor by
denying intervenor Philguarantees action to set aside the settlement
agreement.
Pursuant to the rehabilitation plan for PNB, a Deed of Transfer was executed
providing for the transfer to the government of certain assets of PNB in

On Reconsideration, the Sandiganbayan still denied the motion to lift


attachment, but gave due course to Chuidians plea for the attached
L/Ctobedepositedinaninterestbearingaccount,onthegroundthat
itwillredoundtothebenefitofbothparties.

TheSandiganbayandeclaredthenationalgovernmentastheprincipalobligorof
the L/C even though the liability remained in the books of the PNB for
accountingandmonitoringpurposes.

ISSUE/HELD:
W/N the favorable judgment of the United States District Court brought by
petitioner Chuidian against PNB could be used as basis to lift the order of
attachmentandcompelPNBtopaytheL/C?NO

PILCaseDigest:JurisdictionofStates
RATIO:

Petitioner cites the favorable judgment by the United States District Court in
civilcasebroughtbypetitionerChuidianagainstPNBtocompelthelattertopay
the L/C.However, while it is true that the US District Court ruled in favor of
Chuidian by denying intervenor Philguarantees action to set aside the
settlementagreement,italsosaidthat:
o

In1986,PNB/ManilareceivedanorderfromthePCGGorderingPNBtofreeze
any further drawings on the L/C.The freeze order has remained in effect and
wasfollowedbyasequestrationorderissuedbythePCGG.
o

Subsequently, Chuidians Philippine counsel filed a series of challenges


to the freeze and sequestration orders, which challenges were
unsuccessfulastheorderswerefoundvalidbythePhilippineSupreme
Court.Thefreezeandsequestrationordersarepresentlyineffect.
Thus, under the PCGG order and Executive Orders Nos. 1 and 2,
performance by PNB would be illegal under Philippine Law.Therefore
PNB is excused from performance of the L/C agreement as long as the
freezeandsequestrationordersremainineffect.

ChuidianarguesthatthefactthattheL/Cwasissuedpursuanttoasettlement
inCalifornia,thatthenegotiationsforwhichoccurredinCalifornia,andthattwo
ofthepaymentsweremadeatPNB/LA,compelstheconclusionthattheactof
prohibitingpaymentoftheL/CoccurredinLosAngeles.
o

Under Executive Order No. 1, the PCGG is vested by the Philippine


President with the power to enforce its directives and orders by
contempt proceedings.Under Executive Order No. 2, the PCGG is
empowered to freeze any, and all assets, funds and property illegally
acquired by former President Marcos or his close friends and business
associates.

The Court is not convinced with this argument. The L/C was issued in
Manila, such was done at the request of a Philippine government
instrumentalityforthebenefitofaPhilippinecitizen.TheL/Cwastobe
performed in the Philippines, all significant events relating to the
issuanceandimplementationoftheL/CoccurredinthePhilippines,the
L/CagreementprovidedthattheL/Cwastobeconstruedaccordingto
lawsofthePhilippines,andthePhilippinegovernmentcertainlyhasan
interestinpreventingtheL/Cfrombeingremittedinthatitwouldbe
the release of funds that are potentially illgotten gains.Accordingly,

the Court finds that the PCGG orders are acts of state that must be
respectedbythisCourt,andthusPNBisexcusedfrommakingpayment
on the L/C as long as the freeze and sequestration orders remain in
effect.

PetitionersownevidencestrengthensthegovernmentspositionthattheL/Cis
under the jurisdiction of the Philippine government and that the U.S. Courts
recognizetheauthorityoftheRepublictosequesterandfreezesaidL/C.Hence,
theforeignjudgmentsrelieduponbypetitionerdonotconstituteabartothe
Republics action to recover whatever alleged illgotten wealth petitioner may
haveacquired.

DISPOSITIVE:
ThepetitionisDISMISSED.ThePNBisdirectedtoremittotheSandiganbayan
the proceeds of Letter of Credit in the amount of U.S. $4.4 million, to be placed
underspecialtimedepositwiththeLandBankofthePhilippines,fortheaccountof
Sandiganbayan in escrow for the person or persons, natural or juridical, who shall
eventually be adjudged lawfully entitled thereto, the same to earn interest at the
currentlegalbankrates.

4. Dayritv.PhilPharmawealth(CG)
Petitioners: The Department of Health, Secretary Manuel M. Dayrit, Usec. Ma.
MargaritaGalonandUsec.AntonioM.Lopez
Respondent:Phil.Pharmawealth,Inc.,
G.R.No.169304March13,2007
Topic:StateImmunity(WhenitcannotbeinvokedbyGovernmentOfficials)
ApplicableLaw:Rule58oftheROC,Section3,ArticleXVIofthe1987Constitution
FACTS:

Phil.Pharmawealth,Inc.(respondent)isadomesticcorporationengagedinthe
business of manufacturing and supplying pharmaceutical products to
governmenthospitalsinthePhilippines
Secretary of Health Romualdez, Jr. issued A.O. 27 (1998), outlining the
guidelines and procedures on the accreditation of government suppliers for
pharmaceuticalproducts.

PILCaseDigest:JurisdictionofStates

It was amended by A.O. No. 10 (2000), providing for additional guidelines for
accreditation of drug suppliers aimed at ensuring that only qualified bidders
cantransactbusinesswithpetitionerDOH
InMay 2000,respondent submitted to DOH a request for the inclusion of
additional items in its list of accredited drug products, including the antibiotic
PenicillinGBenzathine.
Based on the schedule provided by DOH, the processing of and release of the
resultofrespondentsrequestweredueonSeptember2000
In September 2000, petitioner DOH, through petitioner Lopez, chairperson of
the prequalifications, bids and awards committee, issued an Invitation for
Bidsfortheprocurementof1.2millionunitsvialsofPenicillinGBenzathine
Despite the lack of response from DOH regarding respondents request for
inclusion of additional items in its list of accredited products, respondent
submitteditsbidforthePenicillinGBenzathinecontract
When the bids were opened onOctober 11, 2000, only two companies
participated, with respondent submitting the lower bid atP82.24 per unit,
comparedtoCathay/YSSLaboratories(YSS)bidofP95.00perunit
In view, however, of the nonaccreditation of respondents Penicillin G
Benzathineproduct,thecontractwasawardedtoYSS
Respondentthusfiledacomplaintforinjunction,mandamusanddamageswith
prayer for the issuance of a writ of preliminary injunction and/or TRO with
theRTC of Pasig City praying,inter alia, that the TC nullify the award of the
contracttoYSSLaboratories,Inc.anddirectDOH,Romualdez,GalonandLopez
to declare Pharmawealth as the lowest complying responsible bidder for the
Benzathine contract, and that they accordingly award the same to plaintiff
companyandadjudgedefendantsRomualdez,GalonandLopezliable,jointly
andseverallytoplaintiff,for[thethereinspecifieddamages].
IntheirComment,DOH,Romualdez,Jr.whowaslatersucceededbyDayrit,and
Usecs Galon and Lopez argued for the dismissal of the complaint for lack of
merit in view of the express reservation made by petitioner DOH to accept or
reject any or all bids without incurring liability to the bidders, positing that
governmentagencieshavesuchfulldiscretion
PetitionerssubsequentlyfiledaManifestation and Motion to Dismiss praying
for the outright dismissalof the complaint based on the doctrine of state
immunity.
To
petitioners
motion
to
dismiss,
respondent
filed
its
comment/oppositioncontending, in the main, that the doctrine of state
immunity is not applicable considering that individual petitioners are being

sued both in their official and personal capacities,hence,they,notthestate,


wouldbeliablefordamages.
InDecember2003,theRTCdeniedpetitionersmotiontodismiss
Theirmotionforreconsiderationhavingbeendenied,petitionersfiledapetition
forcertiorariwiththeCA,beforewhichtheymaintainedthatthesuitisagainst
the state. By the assailed Decisionof2005, CA also affirmed RTCs Order and
deniedpetitionersmotionforreconsideration.

ISSUE:
WONthepetitionerscaninvokeStateImmunityNO

RULING:

As regards petitioner DOH, the defense of immunity from suit will not avail
despite it being an unincorporated agency of the government, for the only
causes of action directed against it are preliminary injunction and
mandamus.
Under Section 1, Rule 58of the Rules of Court, preliminary injunction may be
directedagainstapartyoracourt,agencyoraperson.
Moreover,thedefenseofstateimmunityfromsuitdoesnotapplyincausesof
action,whichdonotseektoimposeachargeorfinancialliabilityagainstthe
State.
The rule that a state may not be sued without its consent, now embodied in
Section3,ArticleXVIofthe1987Constitution,isoneofthegenerallyaccepted
principlesofinternationallaw,whichwehavenowadoptedaspartofthelawof
theland.
Whilethedoctrineofstateimmunityappearstoprohibitonlysuitsagainstthe
statewithoutitsconsent,itisalsoapplicabletocomplaintsfiledagainstofficials
ofthestateforactsallegedlyperformedbytheminthedischargeoftheirduties.
Thesuitisregardedasoneagainstthestatewheresatisfactionofthejudgment
againsttheofficialswillrequirethestateitselftoperformapositiveact,suchas
theappropriationoftheamountnecessarytopaythedamagesawardedagainst
them.
According to Shauf vs CA, the State authorizes only legal acts by its officers.
Therefore,unauthorizedactsofgovernmentofficialsorofficersarenotactsof
theState.Anactionagainstthoseofficialsisnotasuitagainstastatewithinthe
ruleofimmunityoftheStatefromsuit.
9

PILCaseDigest:JurisdictionofStates
Hence,theruledoesnotapplywherethepublicofficialischargedinhis
officialcapacityforactsthatareunauthorizedorunlawfulandinjurious
totherightsofothers.Neitherdoesitapplywherethepublicofficialis
clearlybeingsuednotinhisofficialcapacitybutinhispersonalcapacity,
although the acts complained of may have been committed while he
occupiedapublicposition.
Inthepresentcase,suingindividualpetitionersintheirpersonalcapacitiesfor
damages in connection with their allegedact of illegally abusing their official
positions to make sure that plaintiff Pharmawealth would not be awarded the
Benzathinecontract,whichwasdoneinbadfaithandwithfullknowledgeofthe
limitsandbreadthoftheirpowersgivenbylawispermissible.
Anofficerwhoexceedsthepowerconferredonhimbylawcannothidebehind
thepleaofsovereignimmunityandmustbeartheliabilitypersonally.
It bears stressing, however, that the statements in the immediately foregoing
paragraph in no way reflect a ruling on the actual liability of petitioners to
respondent.Themereallegationthatagovernmentofficialisbeingsuedinhis
personalcapacitydoesnotautomaticallyremovethesamefromtheprotection
of the doctrine of state immunity.Neither, on the other hand, does the mere
invocation of official character suffice to insulate suchofficialfromsuability
and liability for an act committed without or inexcess of his or her
authority.These are matters of evidencewhich should be presented and
provenatthetrial.(IMPORTANTDOCTRINE)

SUMMARY:TESDAenteredintoacontractwithPROVIfortheprintingandencoding
of PVCs. PROVI alleged that out of TESDAs liability of P39.47M, TESDA only paid
P3.7M as evidenced by PROVIs Statement of Account. PROVI filed a case against
TESDAintheRTC,whichissuedawritofpreliminaryattachmentagainstthelatters
properties. The CA reversed the decision. The SC affirmed the CAs decision. As a
government instrumentality, it cannot be sued without its consent. The Contract
enteredintowasinlieuofitsgovernmentalfunctions;hence,therewasnowaiverof
immunityfromsuitbyTESDA.Further,TESDAsfundsarepublicincharacter,hence
theyareexemptfromattachmentorgarnishment.

FACTS:

WHEREFORE,thepetitionisDENIED.TheassailedDecisiondatedMay12,2005and
ResolutiondatedAugust9,2005issuedbytheCourtofAppealsareAFFIRMED.

5. ProfessionalVideov.TESDA(RL)

PROFESSIONALVIDEOv.TESDA(RL)
TOPIC:ImmunityfromsuitofTESDAasagovernmentinstrumentality.

G.R.No.155504June26,2009
Petitioner:ProfessionalVideo,Inc.(PROVI)
Respondent:TechnicalEducationandSkillsDevelopmentAuthority(TESDA)
Ponente:BRION,J.:

PROVI is an entity engaged in the sale of high technology equipment,


informationtechnologyproductsandbroadcastdevices,includingthesupplyof
plasticcardprintingandsecurityfacilities.
TESDAisaninstrumentalityofthegovernmentestablishedunderRA7796(the
TESDA Act of 1994) and attached to the DOLE to develop and establish a
national system of skills standardization, testing, and certification in the
country.
o To fulfill this mandate, it sought to issue securityprinted certification
and/oridentificationpolyvinyl(PVC)cardstotraineeswhohavepassed
thecertificationprocess.
TESDAsconducted2publicbiddingfortheprintingandencodingofthePVCs,
but failed in both instances since PROVI and Sirex Phils. Corp were the only
bidders.
o Due to the failed bidding, the Bidding Awards Committee
recommendedthatTESDAenterintoanegotiatedcontractwithPROVI.
OnDecember29,1999,TESDAandPROVIsignedandexecutedtheirContract

Agreement Project: PVC ID Card Issuance (the Contract) for the printing and
encodingofPVCcards.
o PROVIwastoprovideTESDAwiththesystemandequipmentbasedon
theproposal.
o TESDA would pay PROVI the amount of P39,475,000 within 15 days
afterTESDAsacceptanceofthecontractedgoodsandservices.
OnAugust24,2000,theyexecutedanAddendumtotheContractwhoseterms
bound PROVI to deliver 100% of the supplies to TESDA (includes security foils,
securitydiewithTESDAseal,IDcards,etc)

10

PILCaseDigest:JurisdictionofStates
o PROVIwouldalsoinstallandmaintainacertainnumberofprintersand
scanners.
o TESDA in turn undertook to pay PROVI 30% of the total cost of the
supplieswithinthirty(30)daysafterreceiptofthecontractedsupplies,
with the balance payable within thirty (30) days after the initial
payment.
PROVIallegedthatoutofTESDAsliabilityofP39.47M,TESDAonlypaidP3.7M
asevidencedbyPROVIsStatementofAccount.Thisremainedunpaiddespite
thedemandletterssentbyPROVI.
PROVI filed with the RTCacomplaintforsumofmoneywithdamagesagainst
TESDA and additionally prayed for the issuance of a writ of preliminary
attachment/garnishmentagainstTESDA.
o GRANTED and issued a writ of preliminary attachment against the
properties of TESDA not exempt from execution in the amount of
P35,000,000.00

RATIO:
1.

TESDA filed a MTQ the Writ of Attachment, arguing mainly that public funds
cannotbethesubjectofgarnishment.
o DENIEDbytheRTC.
TESDA filed a Petition for Certiorari with the CA to question the RTC orders,
imputingGADALEJontheRTC.
o CAruledinfavorofTESDA:
TESDAs funds are public in nature and, therefore, exempt
fromgarnishment;and
TESDAspurchaseofthePVCcardswasanecessaryincidentof
itsgovernmentalfunction
o CADENIEDPROVIsMR.

2.

ISSUE:W/NthewritofattachmentagainstTESDAanditsfunds,tocoverPROVIs
claimagainstTESDA,isvalid.NO.TESDAisanagencyofthegovernment,henceit
cannotbesuedwithoutitsconsent.

PROVIarguesthatwhenTESDAenteredintoapurelycommercialcontractwith
PROVI, TESDA went to the level of an ordinary private citizen and could no
longerusethedefenseofstateimmunityfromsuit.
TESDAclaimsthatitenteredtheContractandAddendumintheperformanceof
itsgovernmentalfunction;hence,TESDAisimmunefromsuit.

UnderRA7796,whichcreatedTESDA,aswellastheconstitutionalaffirmation
that [T]he State affirms labor as a primary social economic force, and shall
protect the rights of workers and promote their welfare; that [T]he State
shall protect and promote the right of all citizens to quality education at all
levels, and shall take appropriate steps to make such education accessible to
all;inordertoaffordprotectiontolaborandpromotefullemploymentand
equalityofemploymentopportunitiesforall.,TESDAsroleinthegovernment
cannotbecontested.
Itisanunincorporatedinstrumentalityofthegovernment,directlyattachedto
theDOLEthroughtheparticipationoftheSecretaryofLaborasitsChairman,for
the performance of governmental functions i.e., the handling of formal and
nonformaleducationandtraining,andskillsdevelopment.
As an unincorporated instrumentality operating under a specific charter, it is
equippedwithbothexpressandimpliedpowers,andallStateimmunitiesfully
applytoit.

TESDA is an instrumentality of the government undertaking governmental


functions.

TESDA, as an agency of the State, cannot be sued without its consent.


(IMPT!!!)
Sec. 3, Art. XVI of the Consti embodies the rule that a state may not be sued
withoutitsconsent.
o Itisaswellauniversallyrecognizedprincipleofinternationallawthat
exemptsastateanditsorgansfromthejurisdictionofanotherstate.
o Theprincipleisbasedonthevery essence of sovereignty,andonthe
practical ground that there can be no legal right as against the
authoritythatmakesthelawonwhichtherightdepends.
o Italsorestsonreasonsofpublicpolicythatpublicservicewouldbe
hindered,andthepublicendangered,ifthesovereignauthoritycould
be subjected to law suits at the instance of every citizen and,
consequently, controlled in the uses and dispositions of the means
requiredfortheproperadministrationofthegovernment.
The proscribed suit that the state immunity principle covers takes on various
forms,namely:
11

PILCaseDigest:JurisdictionofStates
o asuitagainsttheRepublicbyname;
o asuitagainstanunincorporatedgovernmentagency;
o asuitagainstagovernmentagencycoveredbyacharterwithrespect
totheagencysperformanceofgovernmentalfunctions;and
o a suit that on its face is against a government officer, but where the
ultimateliabilitywillfallonthegovernment.
Inthepresentcase,thewrit of attachment was issued against a government
agencycoveredbyitsowncharter.
o TESDA performs governmental functions, and the issuance of
certifications is a task within its function of developing and
establishingasystemofskillsstandardization,testing,andcertification
inthecountry.
o From this function, the core reason for the existence of state
immunityapplies(i.e.,thepublicpolicyreasonthattheperformance
ofgovernmentalfunctioncannotbehinderedordelayedbysuits,nor
can these suits control the use and disposition of the means for the
performanceofgovernmentalfunctions).

PROVI argues that TESDA can be sued because it has effectively waived its
immunitywhenitenteredintoacontractwithPROVIforacommercialpurpose.
o SC agrees with TESDA that the purchasing of PVC cards by TESDA is
withinthegovernmentalfunctionsgiventoit.
o That TESDA sells the PVC cards to its trainees for a fee does not
characterize the transaction as industrial or business; the sale cannot
beconsideredseparatelyfromTESDAsgeneralgovernmentalfunctions,
astheyareundertakeninthedischargeofthesefunctions.
MobilPhilippinesv.CustomsArrastreServices:thefactthata
noncorporate government entity performs a function
proprietaryinnaturedoesnotnecessarilyresultinitsbeing
suable.Ifsaidnongovernmentalfunctionisundertakenasan
incident to its governmental function, there is no waiver
therebyofthesovereignimmunityfromsuitextendedtosuch
governmententity.

3.

TESDAs funds are public in character, hence exempt from attachment or


garnishment.

EvenassumingthatTESDAenteredintoaproprietarycontractwithPROVIand
thereby gave its implied consent to be sued, TESDAs funds are still public in
natureandcannotbethevalidsubjectofawritofgarnishmentorattachment.
o TESDAfunds,beingsourcedfromtheTreasury,aremoneysbelonging
to the government, or any of its departments, in the hands of public
officials.
o Republic v. Villasor: public funds cannot be the object of garnishment
proceedings even if the consent to be sued had been previously
grantedandthestateliabilityadjudged.
o TradersRoyalBankv.IntermediateAppellateCourt:Beingpublicfunds,
the deposits are not within the reach of any garnishment or
attachmentproceedings.
As pointed out by TESDA in its Memorandum, the garnished funds constitute
TESDAs lifeblood whose withholding via a writ of attachment, even on a
temporarybasis,wouldparalyzeTESDAsfunctionsandservices.
o These funds also include TESDAs Personal Services funds from which
salariesofTESDApersonnelaresourced.

4.

PROVIhasnotshownthatitisentitledtothewritofattachment.
Evenwithoutthebenefitofanyimmunityfromsuit,theattachmentofTESDA
funds should not have been granted, as PROVI failed to prove that TESDA
fraudulentlymisappliedorconvertedfundsallocatedundertheCertificateas
toAvailabilityofFunds.
Jurisprudenceteachesusthattheruleontheissuanceofawritofattachment
mustbeconstruedstrictlyinfavorofthedefendant.
o Thus,theapplicantsaffidavitmustcontainstatementsclearlyshowing
thatthegroundrelieduponfortheattachmentexists.
Section1(b),Rule57oftheRulesofCourt,thatPROVIreliedupon,appliesonly
wheremoneyorpropertyhasbeenembezzledorconvertedbyapublicofficer,
an officer of a corporation, or some other person who took advantage of his
fiduciarypositionorwhowillfullyviolatedhisduty.

o PROVI,inthiscase,neverentrustedanymoneyorpropertytoTESDA.
While the Contract Agreement is supported by a Certificate as to
Availability of Funds (Certificate) issued by the Chief of TESDAs
Accounting Division, this Certificate does not automatically confer
ownershipoverthefundstoPROVI.
12

PILCaseDigest:JurisdictionofStates
o Absent any actual disbursement, these funds form part of TESDAs
public funds, and TESDAs failure to pay PROVI the amount stated in
the Certificate cannot be construed as an act of fraudulent
misapplicationorembezzlement.

The Labor Arbiter held that there was illegal dismissal and ordered all the
petitionerstopayUSD3,600representinghersalaryfor3months

ThisdecisionwasaffirmedbytheNLRC

ThepetitionersfiledsuitintheCAcontendingthat

DISPOSITIVE:WHEREFORE,premisesconsidered,weherebyDENYthepetitionfiled
bypetitionerProfessionalVideo,Inc.,andAFFIRMtheCAsDecision.

their principal, MPHK, being a foreign government agency, is IMMUNE


FROMSUIT,andassuch,theimmunityisextendedtothem

The dismissal was valid for her failure to meet the perfromance rating
withinthe1yearperiodrequiredunderKuwait'scivilservicelaws

CAaffirmedtheNLRCdecision

The CA said that under the law, a private employment agency shall
assume all responsibilities for the implementation of the contract of
employment of an overseas worker, hence, it can be sued jointly and
severally with the foreign principal for any violation of the recruitment
agreement

As to Ikdal's liability, the appellate court held that under Sec. 10 of RA


8042, the "Migrant and Overseas Filipinos' Act of 1995", corporate
officers,directorsandpartnersofarecruitmentagencymaythemselves
be jointly and solidarily liable with the recruitment agency for money
claims

6. ATCIv.Echin(EM)
ATCI Overseas Corporation, Amalia G. Ikdal, and Ministry of Public HealthKuwait
(MPHK),petitioners
vs.

Ma.JosefaEchin,respondent

October11,2010
CarpioMorales,J.

Facts:

EchinwashiredbyACTIinbehalfofMPHK
o

forthepositionofMedicalTechnologist

undera2yearcontract,

denominatedasaMemorandumofAgreement

withamonthlysalaryof1,200USD
Allnewlyhiredemployeesundergoaprobationaryperiodof1year

Echin was deployed on February 17, 2000 BUT was terminated from
employment on February 11, 2001, she not having ALLEGEDLY passed the
probationaryperiod

Asherrequestforreconsiderationwasdenied,shereturnedtothePhilippines
onMarch17,2001

On July 27, 2001, Echin filed with the NLRC a complaint for illegal dismissal
againstATCI,representedbyIkdal(alsoapetitioner)andMPHK

However,petitionermaintainsthattheyshouldnotbeheldliablebecausethe
employment contract specifically said that the employment shall be governed
bytheCivilServiceLawandRegulationsofKuwait

TheyalsoarguethatevenassumingPhilippinelaborlawsapply,giventhatthe
foreignprincipalisagovernmentagencywhichisimmunefromsuit,petitioner
ATCIcannotlikewisebeheldliable

TheMOA
o

Issue:WONATCIandIkdalmaybeheldliable?
Held:Yes
Ratio:

PetitionerATCI,asaprivaterecruitmentagency,cannotevaderesponsibilityfor
themoneyclaimsofOFWswhichitdeploysabroadbyjustsayingthatitsforeign
principalisimmunefromsuity

In providing for the joint and solidary liability of private recruitment agencies
with their foreign principals, RA 8042 precisely affords the OFWs with a
recourse
13

PILCaseDigest:JurisdictionofStates
o ItisinlinewiththepolicyoftheStatetoprotectandalleviatetheplight
oftheOFWs
o

However, they must submit a copy of the pertinent Kuwaiti labor laws
duly authenticated and translated by Embassy officials thereat, as
requiredbytheRules

WithregardtoIkdal'sjointandsolidaryliabilityasacorporateofficer,thesame
isinodertoofollowingtheexpressprovisionofRA8042onMoneyClaims
o

Theliabilityoftheprincipalandtherecruitmentagencyshallbejointand
several.....thecorporateofficers..asthecasemaybe,shallbejointlyand
solidarilyliablewiththecorporationorpartnership

The party invoking the application of foreign law has the burden of
provingthelaw,underthedoctrineofprocessualpresumption,whichin
thiscase,petitionersfailedtodischarge

Ininternationallaw,thepartwhowantstohaveaforeignlawappliedto
adisputeorcasehastheburdenofprovingtheforeignlaw

G.R.No.124772,August14,2007

The foreign law is treated as a question of fact to be properly pleaded


andprovedasthejudgecannottakejudicialnoticeofaforeignlaw

Respondent:Sandiganbayan,Officecoholdings.

Unfortunately for petitioner, it failed to prove the pertinent Saudi laws they
mustnotonlybealleged,THEYMUSTBEPROVEN
o

Thus, the international law doctrine of presumedidentity approach or


processualpresumptioncomesintoplay

Whereaforeignlawisnotplead,orevenifpleaded,isnotproved,
thepresumptionisthattheforeignlawisthesameasours

Thus, we apply, Philippine labor laws in determining the issues


beforeus

To prove a foreign law, a party invoking it must present a copy and


complywithSecs24and25ofRule132oftheRulesofCourt

ToproveKuwaitilaw,petitionersjustsubmittedtheff:

MOAbetweenrespondentandMPHK

Atranslatedcopy

Terminationlettertorespondentstatingthatshedidnotpassthe
probationterms

With respect to petitioners' argument that it is governed by Kuwait laws and


thatPOEArulesaccordrespecttorules,customs,andpracticesofthehoststate
thesamewasnotsubstantiated
o

Toallowthepetitionerstosimplyinvokeimmunityfromsuitofitsforeign
principalortowaitforthejudicialdeterminationoftheforeignprincipal's
liabilityrendersthelawonjointandsolidaryliabilityinutile

Must be certified by Alawi, Head of the Dept of Foreign


AffairsOffice of Consular Affiars Inslamic Certification and
TranslationUnit

Respondent'sletterofreconsideration

7. Gunigundov.SB(NO)
Petitioner:PCGG,representedbyChairmanGunigundo
Ponente:J.Tinga

FACTS:

CriminalproceedingswereinstitutedinthePhilippinestolocate,sequesterand
seekrestitutionoftheillgottenwealthoftheMarcoses
o

On7April1986,theOfficeoftheSolicitorGeneral(OSG)wrotetheFederal
Office for Police Matters in Berne, Switzerland, requesting assistance for
thelatterofficeto:

(a) ascertain and provide the OSG with information about the ill
gotten fortune of the Marcoses, the names of the depositors and
thebanksandamountsinvolved;and

(b) take necessary precautionary measures to freeze the assets in


order to preserve their existing value and prevent any further
transfer.

TheOfficeoftheDistrictAttorneyinZurichissuedanOrderdirectingtheSwiss
BanksinZurichtofreezetheaccounts,includingthoseofOfficecoHoldings.
o Officeco appealed the Order of the District Attorney to the Attorney
General of the Canton of Zurich, who affirmed the Order of the District
Attorney. Officeco further appealed to the Swiss Federal Court which
likewisedismissedtheappeal.
14

PILCaseDigest:JurisdictionofStates

Inlate1992,OfficecoaskedtheOSGandthePCGGtoofficiallyadvisetheSwiss
government to unfreeze Officecos assets. The PCGG required Officeco to
presentcountervailingevidencetosupportitsrequest.
Instead, Officeco filed the complaint in 1994, which prayed for the PCGG and
theOSGtoofficiallyadvisetheSwissgovernmenttoexcludefromthefreezeor
sequestrationordertheaccountofOfficeco.
o ThePCGGfiledamotiontodismisswhichwasdeniedbytheSandiganbayan.
TheMotionforReconsiderationwasalsodenied.

ISSUE:

WhetherornottheSandiganbayanerredinnotdismissingthecaseforreasonsof
(1)resjudicata;
(2)lackofjurisdictiononaccountoftheactofstatedoctrine;
(3)lackofcauseofactionforbeingprematureforfailuretoexhaustadministrative
remedies;and
(4) lack of cause of action for the reason that mandamus does not lie to compel
performance of a discretionary act, there being no showing of grave abuse of
discretiononthepartofpetitioners.

ActofStateDoctrine

Held:
ResJudicata
PetitionersarguethatthedecisionoftheSwisscourtofdenyingOfficecos
appeal, and the freeze order of the District Attorney in Zurich where
conclusiveonOfficecosrights
o Thusarelitigationwillviolateresjudicata
RequisitesofResJudicata:
1)Theformerjudgmentorordermustbefinal;
(2)Itmustbeajudgmentororderonthemerits,thatis,itwasrendered
after a consideration of the evidence or stipulations submitted by the
partiesatthetrialofthecase;
(3) It must have been rendered by a court having jurisdiction over the
subjectmatterandtheparties;and
(4)Theremustbe,betweenthefirstandsecondactions,identityofparties,
ofsubjectmatterandofcauseofaction.

The first three elements above are present in this case, we rule that the
fourthelementisabsent.Hence,resjudicatadoesnotapplytopreventthe
SandiganbayanfromproceedingwithCivilCaseNo.0164
Petitionersinterestistorecoverillgottenwealth,whereverthesamemay
be located. The interest of the Swiss court, on the other hand, is only to
settle the issues raised before it, which include the propriety of the legal
assistanceextendedbytheSwissauthoritiestothePhilippinegovernment.

Petitionersclaimthatthecaseineffectseeksajudicialreviewofthelegalityor
illegalityoftheactsoftheSwissgovernment.
o act of state doctrine courts of one country will not sit in
judgment on the acts of the government of another in due
deference to the independence of sovereignty of every sovereign
state.
o CitingUnderhillv.Hernandez:

Every sovereign state is bound to respect the independence of


every other state, and the courts of one country will not sit in
judgmentontheactsofthegovernmentofanother,donewithin
itsterritory.Redressofgrievancesbyreasonofsuchactsmustbe
obtained through the means open to be availed of by sovereign
powersasbetweenthemselves.
There are three methods by which States prevent their national courts from
deciding disputes which relate to the internal affairs of another State: act of
statedoctrine,immunityandnonjusticiability.
o It is an avoidance technique that is directly related to a States
obligationtorespecttheindependenceandequalityofotherStates
bynotrequiringthemtosubmittoadjudicationinanationalcourtor
tosettlementoftheirdisputeswithouttheirconsent.
InBancoNacionaldeCubav.Sabbatino(USSC)heldthat,
Internationallawdoesnotrequiretheapplicationofthisdoctrine
nordoesitforbidtheapplicationoftheruleevenifitisclaimed
that the act of state in question violated international law.
Moreover, due to the doctrines peculiar nationtonation
character, in practice the usual method for an individual to seek
reliefistoexhaustlocalremediesandthenrepairtotheexecutive
15

PILCaseDigest:JurisdictionofStates
authorities of his own state to persuade them to champion his
claimindiplomacyorbeforeaninternationaltribunal
Contrary to Petitioners assertion, the Sandiganbayan will only review and
examinetheproprietyofmaintainingPCGGspositionwithrespecttoOfficecos
accounts with BTAG for the purpose of further determining the propriety of
issuingawritagainstthePCGGandtheOSG.

ExhaustionofRemedy

Petitioners allege that Officeco failed to exhaust the remedies available under
Secs.5and6ofthePCGGRulesandRegulations

However, the provisions refer only to sequestration orders, freeze orders and
hold orders issued by the PCGG in the Philippines. They do not apply to those
issuedinanothercountry

MandamusofaDiscretionaryact

Petitioner contend that the complaint is for mandamus but the act sought by
Officecoisdiscretionaryinnatureandaddthattheydidnotcommitgraveabuse
ofdiscretionindenyingOfficecosrequesttounfreezeitsaccount.
TherealissueiswhetherOfficecoscomplaintbeforetheSandiganbayanstates
acauseofaction,notwhetherornotmandamuswilllie.
o
Officeco actually sent several requests (4) to the PCGG asking
them to remove them from the list of companies whose assets
werefrozeninSwitzerland.
o
NeitherthePCGGnortheOSGrepliedtotherequestsofOfficeco
within15daysasrequiredbylaw,andtheinactionisequivalent
toadenialoftheserequests.
This inaction resulted in a cause of action because they
hadnootherchoicebuttoresorttojudicialremedies.

Dispositive Portion: WHEREFORE, premises considered, the instant petition is


DISMISSED.

B. DiplomaticandConsularImmunity
1. Minucherv.CA(MT)
Facts:

OnAugust1988,petitionerfiledwiththeRTCacomplaintfordamagesagainst
respondent,ArthurScalzoJr.
PetitionerallegedthathewasalaborattachoftheEmbassyofIraninthePhils.
And that he met respondent, then connected with the American Emabassy,
through Jose Inigo, informer belonging to the military intelligence community
whom he had various business transaction like the buying and selling carpets
andcaviar(thiswillbethesametransactionshewillhavewiththerespondent).
So they met. Respondent was purportedly interested in buying caviar and
carpets too. On this same occasion, petitioner told respondent that he had
problemswithhisvisaandalongwithhiswifesandsoughtrespondentshelp.
RespondentofferedhishelpandpresentedhimselfasanagentoftheDEA(drug
enforcementagency)oftheUSEmbassyinManila.
Respondent bought caviar and said that the fee for the visas were $2000.
Further,orderedmorecaviarandboughtacarpetworth$24,000.
It turned out that respondent had an elaborate plan to frame petitioner and
AbbasTorabianforallegedherointrafficking.
SomeAmericanandFilipinopoliceofficersarrestedthemandbroughtthemto
CampCrameintheirunderwear(howunfortunatehuhu).
Private respondent and his companions took three suitcases and papers, his
wallet,thekeystohiscarandhishouse,the$24,000earlierdeliveredtohim.
They were handcuffed together for three days and were not given food and
water.
Theywereaskedtoconfessforpossessionofheroinorelsetheywouldbejailed
orevenexecutedbyIranianterrorists.
Consequently,theywerechargedfortheviolationoftheDangerousDrugsAct
of 1972 in the RTC of Pasig. Respondent testified for the prosecution of the
samecase.
Petitioner alleged that respondent falsely testified against him and also avers
that charges of unlawful arrest, robbery, estafa and swindling have been filed
againsttherespondent.
Petitioner therefore prays for actual and compensatory damages: $24,000 for
thePersiancarpet,$2000forthefeeshegaveforthevisas,moraldamagesP5M,
exemplarydamagesforP100k,andatleastP200kforlitigationfeeshespenton
forthecriminalcasesfiledagainsthimandthiscivilcase.
On September 1988, private respondents counsel, filed a special appearance
(civprohehe)andmotionallegingthereinthatsincerespondentisanagentof
theDEAoftheUSandtheactsandomissionscomplainedwereperformedby
himintheperformanceofhisofficialfunctionsandthatthecaseisnowunder
16

PILCaseDigest:JurisdictionofStates
study with the Department of State and Justice in Washington DC for the
purposeofdeterminingwhatdefenseswouldbeappropriate.
Moving on On June 1990, private respondent filed a motion to dismiss the
caseonthegroundofaDIPLOMATICNOTEissuedbytheUSEmbassybyDonald
Woodward,ViceconsuloftheUSadvisingtheDFAoftheRPthatArthurScalzo
wasamemberofadiplomaticmission,whichisbasicallyanofficialfunctionand
raises the ART 39(2) of the Vienna Convention on Diplomatic Relations, which
providesthatrespondentretainsimmunityfromcivilsuitforactsperformedin
theexerciseofhisfunctions.
The RTC then denied the dismissal but the CA reversed the decision thus this
petition

2. RepublicofIndonesiav.Vinzon(RK)
THE REPUBLIC OF INDONESIA, HIS EXCELLENCY AMBASSADOR SOERATMIN, and
MINISTER COUNSELLOR AZHARI KASIM,petitioners, vs.JAMES VINZON,
doing business under the name and style of VINZON TRADE AND
SERVICES,respondent.
Facts:

Issue:WONthecaseagainsttherespondentmustbedismissedbasedondiplomatic
immunity?

Petitioners entered into a maintenance agreement with Respondent, in order to


maintain specified equipment aircons, generators, water heaters, etc at the
Embassy, its annex, and the official residence of the petitionerambassador. This
agreement would be effective for a period of four years and would automatically
renew itself unless cancelled by either party by giving thirty days prior written
notice.

Held&Ratio:NO.Forthereasonsbelow:

Said complaint contains sufficient allegations which indicate that the


respondent committed the imputed acts in his personal capacity and outside
thescopeofhisofficialfunctionsandduties.Asdescribedinthecomplainthe
committedcriminalactsforwhichheisalsocriminallyliable.
Inthedecisionacquittingthepetitionerinthecriminalcasethathewasindeed
avictimoftheframeupthereisprimafacieshowingthatrespondentcouldbe
heldpersonallyliablefortheactscommittedbeyondhisofficialfunctions.
ShauffvCA:Itisawellsettledprincipleoflawthatapublicofficialmaybeliable
inhispersonalprivatecapacityforwhateverdamagehemayhavecausedbyhis
act done with malice and bad faith or beyond the scope of his authority of
jurisdiction.
Art 31 of the Vienna Convention on Diplomatic Relations admits exception:
immunity can be availed of except an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving state
outsideofhisofficialfunctions.
Besides the diplomatic note there was no sufficient evidence presented by
respondenttosupporthisclaimofimmunity.
WHEREFORE,thechallengeddecisionofpublicrespondentof31October1990
inC.A.G.R.SPNo.22505isSETASIDEandtheOrderof25June1990ofBranch
19 of the Regional Trial Court of Manila In Civil Case No. 8845691 denying
privaterespondentsMotiontoDismissisherebyREINSTATED.

Before expiration of agreement in 1999, petitioners involved respondent that the


renewal would be at the discretion of the incoming chief of administration. Such
Chieffoundrespondenttsworkunsatisfactory,andthus,terminatedtheagreement.

Respondent claimed that such dismissal was arbitrary and unfair, and filed a suit.
Citing that a sovereign state is immune from suit, petitioners filed a motion to
dismiss. They also said that Soeratmin and kasim are diplomatic agents and enjoy
immunity.

RespondetclaimedthatIndonesiaexpresslywaiveditsimmunityfromsuit,citinga
provision in the Maintenance Agreement any legal action arising out of this
maintenance agreement shall be settled according to the laws of the Philippines
andbythepropercourtofMakatiCity,Philippines.

RTCandCAruledinfavorofrespondenthencethispetition.
Issue:WoNCAerredinrulingthatpetitionershavewaivedtheirimmunitybasedon
theabovementionedprovisionintheagreement
Ruling:PETITIONGRANTED
Ratio
17

PILCaseDigest:JurisdictionofStates
Immunity of a sovereign is recognized with regard to public acts acts jure
imperiibutnotwithregardtoprivateactsjuregestionis.
Ex:ConductofapublicbiddingfortherepairofaWharfataUSNavalstation
jureimperiii
Ex:Hiringacookintherecreationcenterofcampjohnhayjuregestionis
Inpresentcase
o Mereenteringintoacontractdoesnotimmediatelyclassifyitasoneor
theother
o We must ask is foreign state engaged regularly in conduct of a
business? in this case, it is not, and thus it seems as if the act is in
pursuitofasovereignactivity,andthusanactjureimperii.
o Petitioner:maintenanceisnolongerasovereignfunction
Courtdisagrees:itisclearthatIndonesiawsactinginpursuitof
a sovereign activity when it entered into contract with
respondent
onedoesnotmerelyestablishadiplomaticmissionandleaveit
at that, such establishment encompasses maintenance and
upkeep
Withregardtoprovisioninmaintenanceagreement
o Notnecessarily/explicitlyawaiver.
o Could apply when sovereign sues in local courts, or otherwise expressly
waives
o ApplicabilityofPhilLawscanalsomeanrecognitionofimmunity
Waivermustbeexplicit,clear,andunequivocal

3. Nicolasv.Romulo(RC)
Topic:DanielSmithcase,VFAisvalidtreaty,custodyofUStroops
Treaties:
VFA
RomuloKennedyAgreementof2006

Petitioner:SuzetteNicolasetal
Respondent:AlbertoRomulo,actingasSecretaryofForeignAffairs,etal.

SUMMARY:

Daniel Smith was convicted of the Rape of Suzette Nicolas. After conviction during
his appeal, he was taken from Makati Jail by authorities and placed in US custody
pursuant to the RomuloKennedy Agreement. So question, where should he be
detained.Accdg.topetitioner,theVFAisvoidsotheUSshouldntbeabletakehim
outofjail.
SC said that VFA is valid based on previous rulings in Bayan v Zamora. It is merely
implementing the MDT. So looking at VFA, the proper procedure is that upon
conviction the US and Philippine authorities have to agree where the convicted
should serve his sentence. The RomuloKennedy Agreement is invalid because it
doesnt follow this provision of the VFA. When US and Phils agree the service of
sentenceshouldbedoneunderPhilippineAuthority(ArtVSec10ofVFA).
Also,explainedMedellinvTexascase(endofdigest).

FACTS

Thesearepetitionsforcertiorari,etc.asspecialcivilactionsand/orforreviewof
the Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon.
BenjaminT.Pozon,etal.,inCAG.R.SPNo.97212,datedJanuary2,2007.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United
StatesArmedForces.Hewaschargedwiththecrimeofrapecommittedagainst
aFilipina,petitionerherein,sometimeonNovember1,2005,asfollows:
st

That on or about the First (1 ) day of November 2005,


insidetheSubicBayFreeportZone,OlongapoCityandwithin
the jurisdiction of this Honorable Court, the abovenamed
accuseds (Smith, Carpentier, Duplantis, Silkwood, Soriano),
being then members of the United States Marine Corps,
except Timoteo L. Soriano, Jr., conspiring, confederating
togetherandmutuallyhelpingoneanother,withlewddesign
and by means of force, threat and intimidation, with abuse
ofsuperiorstrengthandtakingadvantageoftheintoxication
of the victim, did then and there willfully, unlawfully and
feloniously sexually abuse and have sexual intercourse with
orcarnalknowledgeofoneSuzetteS.Nicolas,a22yearold
unmarried woman inside a Starex Van with Plate No. WKF
162, owned by Starways Travel and Tours, with Office
address at 8900 P. Victor St., Guadalupe, Makati City, and
drivenbyaccusedTimoteoL.Soriano,Jr.,againstthewilland
consent of the said Suzette S. Nicolas, to her damage and
18

PILCaseDigest:JurisdictionofStates
prejudice.

PursuanttoVFA,theUS,atitsrequest,wasgrantedcustodyofdefendantSmith
pendingtheproceedings.Duringthetrial,whichwastransferredfromtheRTC
of Zambales to the RTC of Makati for security reasons, the United States
Government faithfully complied with its undertaking to bring defendant Smith
tothetrialcourteverytimehispresencewasrequired.
RTCofMakatiAcquittedtheothermen.FoundSmithguilty,sentencinghimto
reclusionperpetua.PursuanttoVFA,Smithshallservehissentenceinfacilities
to be agreed upon by the US and Philippine authorities. Pending such
agreementheistoserveitinMakatiCityJail.
OnDecember29,2006,however,defendantSmithwastakenoutoftheMakati
jail by a contingent of Philippine law enforcement agents, purportedly acting
under orders of the Department of the Interior and Local Government, and
brought to a facility for detention under the control of the United States
government,providedforundernewagreementsbetweenthePhilippinesand
theUnitedStates,referredtoastheRomuloKenneyAgreementwhichstates:
o The Government of the Republic of the Philippines and the
GovernmentoftheUnitedStatesofAmericaagreethat,inaccordance
with the Visiting Forces Agreement signed between our two nations,
Lance Corporal Daniel J. Smith, United States Marine Corps, be
returnedtoU.S.militarycustodyattheU.S.EmbassyinManila
o The Department of Foreign Affairs of the Republic of the Philippines
and the Embassy of the United States of America agree that, in
accordance with the Visiting Forces Agreement signed between the
two nations, upon transfer of Lance Corporal Daniel J. Smith, United
States Marine Corps, from the Makati City Jail, he will be detained at
the first floor, Rowe (JUSMAG) Building,U.S.Embassy Compoundina
roomofapproximately10x12squarefeet.Hewillbeguardedround
the clock by U.S. military personnel. The Philippine police and jail
authorities,underthedirectsupervisionofthePhilippineDepartment
ofInteriorandLocalGovernment(DILG)willhaveaccesstotheplaceof
detentiontoensuretheUnitedStatesisincompliancewiththeterms
oftheVFA.

ISSUE/HELD:
Who gets custody? Status Quo, DFA has to conduct talks because the Romulo
KennedyAgreementisvoidforbeingcontrarytoVFA.

AccdgtoPetitioner:PhilippinesbecauseVFAisvoid.COURT:VFAisconstitutional

RATIO:
VFA

TheprovisionoftheConstitutionisArt.XVIII,Sec.25whichstates:
Sec. 25. After the expiration in 1991 of the Agreement between 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
thepeopleinanationalreferendumheldforthatpurpose,andrecognized
asatreatybytheothercontractingState.

The provision is thus designed to ensure that any agreement allowing the
presenceofforeignmilitarybases,troopsorfacilitiesinPhilippineterritoryshall
be equally binding on the Philippines and the foreign sovereign State
involved.Theideaistopreventarecurrenceofthesituationinwhichtheterms
andconditionsgoverningthepresenceofforeignarmedforcesinourterritory
werebindinguponusbutnotupontheforeignState.
Applying the provision to the situation involved in these cases, the question is
whetherornotthepresenceofUSArmedForcesinPhilippineterritorypursuant
totheVFAisallowedunderatreatydulyconcurredinbytheSenatexxxand
recognizedasatreatybytheothercontractingState.
o Bayan v. Zamora, the VFA was duly concurred in by the Philippine
Senate and has been recognized as a treaty by the United States as
attested and certified by the duly authorized representative of the
UnitedStatesgovernment.
o VFA and the RPUS Mutual Defense Treaty of August 30, 1951. This
earlieragreementwassignedanddulyratifiedwiththeconcurrenceof
boththePhilippineSenateandtheUnitedStatesSenate
RPUS military exercises for the purpose of developing the
capability to resist an armed attack fall squarely under the
provisions of the RPUS Mutual Defense Treaty. The VFA,
which is the instrument agreed upon to provide for the joint
RPUSmilitaryexercises,issimplyanimplementingagreement
tothemainRPUSMilitaryDefenseTreaty.
Accordingly, as an implementing agreement of the RPUS
Mutual Defense Treaty, the provision of Art. XVIII, Sec. 25 of
19

PILCaseDigest:JurisdictionofStates
theConstitution,iscompliedwithbyvirtueofthefactthatthe
presence of the US Armed Forces through the VFA is a
presence allowed under the RPUS Mutual Defense
Treaty. Since the RPUS Mutual Defense Treaty itself has
beenratifiedandconcurredinbyboththePhilippineSenate
andtheUSSenate,thereisnoviolationoftheConstitutional
provisionresultingfromsuchpresence.

TheVFAbeingavalidandbindingagreement,thepartiesarerequiredasamatter
ofinternationallawtoabidebyitstermsandprovisions.

rules of procedure) of one State do not extend or apply except to the


extentagreedupontosubjectsofanotherStateduetotherecognitionof
extraterritorial immunity given to such bodies as visiting foreign armed
forces.

Applying, however, the provisions of VFA, the Court finds that there is a different
treatmentwhenitcomestodetentionasagainstcustody.Themomenttheaccused
has to be detained, e.g., after conviction, the rule that governs is the following
provisionoftheVFA:
Sec. 10. The confinement or detention by Philippine authorities of
United States personnel shall be carried out in facilities agreed on by
appropriate Philippines and United States authorities. United States
personnel serving sentences in the Philippines shall have the right to
visitsandmaterialassistance.

ArticleV
CriminalJurisdiction
xxx
6. The custody of any United States personnel over whom the
Philippines is to exercise jurisdiction shall immediately reside with
United States military authorities, if they so request, from the
commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal
notification by the Philippine authorities and without delay, make such
personnel available to those authorities in time for any investigative or
judicial proceedings relating to the offense with which the person has
been charged. In extraordinary cases, the Philippine Government shall
presentitspositiontotheUnitedStatesGovernmentregardingcustody,
whichtheUnitedStatesGovernmentshalltakeintofullaccount.Inthe
eventPhilippinejudicialproceedingsarenotcompletedwithinoneyear,
the United States shall be relieved of any obligations under this
paragraph. The one year period will not include the time necessary to
appeal.Also,theoneyearperiodwillnotincludeanytimeduringwhich
scheduled trial procedures are delayed because United States
authorities,aftertimelynotificationbyPhilippineauthoritiestoarrange
forthepresenceoftheaccused,failtodoso.
o

The rule in international law is that a foreign armed forces allowed to


enter ones territory is immune from local jurisdiction, except to the
extentagreedupon.
As a result, the situation involved is not one in which the power of this
Courttoadoptrulesofprocedureiscurtailedorviolated,butratheronein
which, as is normally encountered around the world, the laws (including

Thereisadifferencebetweencustodyduringthetrialanddetentionafter
conviction, because they provided for a specific arrangement to cover
detention. And this specific arrangement clearly states not only that the
detentionshallbecarriedoutinfacilitiesagreedonbyauthoritiesofboth
parties, but also that the detention shall be by Philippine
authorities. Therefore, the RomuloKenney Agreements of December 19
and22,2006,whichareagreementsonthedetentionoftheaccusedinthe
UnitedStatesEmbassy,arenotinaccordwiththeVFAitselfbecausesuch
detentionisnotbyPhilippineauthorities.
Respondents should therefore comply with the VFA and negotiate with
representativesoftheUnitedStatestowardsanagreementondetention
facilitiesunderPhilippineauthoritiesasmandatedbyArt.V,Sec.10ofthe
VFA.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals
DecisioninCAG.R.SPNo.97212datedJanuary2,2007isMODIFIED.TheVisiting
Forces Agreement (VFA) between the Republic of the Philippines and the United
States, entered into on February 10, 1998, is UPHELD as constitutional, but the
RomuloKenney Agreements of December 19 and 22, 2006 are DECLARED not in
accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby
ordered to forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as
20

PILCaseDigest:JurisdictionofStates
provided in Art. V, Sec. 10 of the VFA, pending which the status quo shall be
maintaineduntilfurtherordersbythisCourt.

NOTE:Caseception:Medellinv.Texaswhichheldthattreatiesenteredintobythe
UnitedStatesarenotautomaticallypartoftheirdomesticlawunlessthesetreaties
areselfexecutingorthereisanimplementinglegislationtomakethemenforceable.
(importantbits)

First,theVFAisaselfexecutingAgreement,asthattermisdefinedinMedellinitself,
because the parties intend its provisions to be enforceable, precisely because the
Agreement is intended to carry out obligations and undertakings under the RPUS
Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and
executed,withtheUSfaithfullycomplyingwithitsobligationtoproduceL/CPLSmith
beforethecourtduringthetrial.

Secondly,theVFAiscoveredbyimplementinglegislation,namely,theCaseZablocki
Act, USC Sec. 112(b), inasmuch as it is the very purpose and intent of the US
Congress that executive agreements registered under this Act within 60 days from
their ratification be immediately implemented. The parties to these present cases
donotquestionthefactthattheVFAhasbeenregisteredundertheCaseZablocki
Act.

Finally, the RPUS Mutual Defense Treaty was advised and consented to by the US
Senate.
Accordingly,therearethreetypesoftreatiesintheAmericansystem:
1.Art.II,Sec.2treatiesTheseareadvisedandconsentedtobytheUSSenatein
accordancewithArt.II,Sec.2oftheUSConstitution.
2. ExecutiveCongressional Agreements: These are joint agreements of the
PresidentandCongressandneednotbesubmittedtotheSenate.
3. Sole Executive Agreements. These are agreements entered into by the
President.TheyaretobesubmittedtoCongresswithinsixty(60)daysofratification
undertheprovisionsoftheCaseZablockiAct,afterwhichtheyarerecognizedbythe
Congressandmaybeimplemented.

21

IMMUNITY'FROM'JURISDICTION'
A.'STATE'IMMUNITY'
1. The'Tate'Letter'(MR)'
26'Dept.'of'State'Bull.'(MR)'
984!(1952)!
!
A! letter! from! the! Acting! Legal! Adviser,! Jack! B.! Tate,! to! the! United! States!
Department!of!Justice,!May!18,!1952.!
!
Note:& The& point& is& really& to& discuss& the& 2& kinds& of& sovereign& immunity& (absolute&
and&restrictive)&and&to&say&that&the&Departments&policy&is&to&follow&the&restrictive&
theory.&&
!
2'conflicting'concepts'of'sovereign'immunity:'
1.
2.

3.

classical!or!absolutea!sovereign!cannot,!without!its!consent,!be!made!
a!respondent!in!the!courts!of!another!sovereign!
newer! or! restrictiveimmunity! of! the! sovereign! is! recognized! with!
regard!to!sovereign!or!public!acts!(jure!imperii),!but!not!with!respect!to!
private!acts!(jure!gestionis)!
matter!where!proponents!of!both!theories!are!in!agreementsovereign!
immunity!should!not!be!claimed!or!recognized:!!
in! actions! with! respect! to! real! property! (except! diplomatic! and!
consular!property)!
or!with!respect!to!disposition!of!the!property!of!a!deceased!person!
even!though!a!foreign!sovereign!is!the!beneficiary!!

!
Countries' that' tend' to' decide' in' favor' of' absolute' theory:! US,! British!
Commonwealth,! Czechoslovakia,! Estonia,! Poland,! Brazil,! Chile,! China,! Hungary,!
Japan,!Luxembourg,!Norway,!Portugal!!
Countries'that'tend'to'decide'in'favor'of'restrictive'theory:!Belgium,!Italy,!Egypt,!
Switzerland,!France,!Austria,!Greece,!Romania,!Peru,!Denmark!!

restrictive! theory! and! the! views! of! writers,! at! least! in! civil! law! countries,! are! a!
major!factor!in!the!development!of!the!law.!!
!
Of! related! interest! is! the! fact! that! 10! of! the! 13! countries! cited! as! supporters! of!
the!classical!theory!have!ratified!the! Brussels' Convention' of' 1926,!under!which!
immunity!for!government!owned!merchant!vessels!is!waived.!US,!which!is!not!a!
party!to!the!convention,!has!also!followed!a!policy!of!not!claiming!immunity!for!
its!public!owned!or!operated!vessels.!It!is!noteworthy!that!these!10!countries!plus!
the! US! have! relinquished! an! important! part! of! the! immunity! which! they! claim!
under!the!classical!theory.!There!is!thus!now!little!acceptance!for!the!continued!
full!acceptance!of!the!absolute!theory!of!sovereign!immunity.!!
!
The!Department!feels!that!the!widespread!and!increasing!practice!on!the!part!of!
governments!engaging!in!commercial!activities!makes!necessary!a!practice!which!
will!enable!persons!doing!business!with!them!to!have!their!rights!determined!in!
the! courts.! For! these! reasons! it' will' hereafter' be' the' Departments' policy' to'
follow'the'restrictive'theory'in'considering'requests'of'foreign'governments'for'
a'grant'of'sovereign'immunity.''
!
A!shift!in!policy!by!the!executive!branch!cannot!control!the!courts.!But!there!have!
been! indications! that! at! least! some! Justices! of! the! SC! feel! that! in! this! matter!
courts! follow! the! branch! of! the! government! charged! with! responsibility! for! the!
conduct!of!foreign!relations.!!

2. Victory' Transport' Inc' v.' Comisaria' General' de'


Abastecimientos'y'Transportes'(MR)'
35!ILR!110!USCA!2d!Circ.!1964!
!
Facts&

Countries'that'tend'to'decide'in'favor'of'either:!Netherlands,!Sweden,!Argentina!
!
A!trend!toward!the!restrictive!theory!has!become!more!and!more!evident!since!
its!development.!Furthermore,!there!is!a!school!of!influential!writers!favoring!the!
!

Victory!charted!a!ship!to!Comisaria!(a!branch!of!the!Ministry!of!Commerce!of!
the! Spanish! Government)! for! a! voyage! from! Alabama! to! Spain! to! carry!
surplus! wheat! purchased! by! the! Spanish! Government! under! an! Agricultural!
Commodities! Agreement! (agreement)! with! the! US! pursuant! to! the! US!
Agricultural!Trade!Development!and!Assistance!Act!(act).!!
The!charter!agreement!contained!an!arbitration!clause:!should!dispute!arise,!
it! shall! be! referred! to! 3! persons! in! New! York,! commercial! men,! one! to! be!
1!

appointed! by! each! party! and! the! third! to! be! appointed! by! the! two! chosen.!
Their!decision!shall!be!final!and!for!the!purpose!of!enforcing!award,!may!be!
made!a!rule!of!court.!!
The!ship!was!damaged!while!discharging!cargo!at!Spanish!ports!which!were!
allegedly! unsafe! for! a! vessel! of! that! size,! so! Victory! filed! suit! to! compel!
arbitration!under!the!US!Arbitration!Act:!Sec.!4!states!that!parties!aggrieved!
by! the! failure! or! refusal! of! another! party! to! arbitrate! pursuant! to! an!
arbitration! agreement! may! petition! the! US! district! court! to! issue! order!
directing!that!arbitration!proceed!as!provided!for!in!the!agreement.!!
Victory! secured! an! ex! parte! order! from! the! District! Court.! Service! of! its!
petition! was! made! by! registered! mail! to! Comisaria.! Comisaria! moved! to!
vacate!the!service!because!Court!lacked!in!personam!jurisdiction!because!of!
(a)!extraterritorial!service!and!(b)'sovereign'immunity'from'suit'to'which'it'
was'entitled,'being'a'branch'of'the''Spanish'government.'

'
Held&by&District&Court&&

Victorys! motion! to! compel! arbitration! granted.! By! entering! into! the!
arbitration! agreement,! both! parties! consented! to! the! jurisdiction! of!
courts! in! New! York.! And' being' a' commercial' operation,' sovereign'
immunity'was'not'available.''

'
Judgment&of&the&Court&
Jack! Tate! (see! Tate! Letter)! announced! that! the! Department! would!
adhere! to! the! restrictive! theory! of! sovereign! immunity.! However,! it!
offers!no!guidelines!or!criteria!for!differentiating!a!private!from!a!public!
act!
Some!criteria!from!the!past:!
a
by!naturesovereign!acts!are!only!those!activities!which!could!not!
be! performed! by! individuals;! but! this! only! postpones! the! difficulty!
for! particular! contracts! in! some! instances! may! be! made! only! by!
States!!
a
by! purpose! of! transactionjure! imperii! are! those! in! which! the!
object!of!the!performance!is!public!in!character;!but!this!criterion!is!
purely!arbitrary!
purpose! of! the! restrictive! theoryto! try! to! accommodate! the! interest! of!
individuals!doing!business!with!foreign!governments!having!their!legal!rights!
determined!by!the!courts,!with!the!interest!of!foreign!Governments!in!being!

free!to!perform!certain!political!acts!without!undergoing!the!embarrassment!
or!hindrance!of!defending!the!propriety!of!such!acts!before!foreign!courts!!
Sovereign! immunity! is! a! derogation! from! the! normal! exercise! of! state!
jurisdiction! so! we! are! disposed! to! deny! a! claim! of! sovereign! immunity! that!
has! not! been! recognized! and! allowed! by! the! State! Department! unless! it! is!
plain!that!the!activity!falls!within!one!of!the!categories!of!strictly!political!or!
public!acts!!
Such!acts!are!general!limited!to:!!
a
internal!administrative!acts,!such!as!expulsion!of!alien!
a
legislative!acts!such!as!nationalization!
a
acts!concerning!armed!forces!
a
acts!concerning!diplomatic!activity!
a
public!loans!
Should! diplomacy! require! enlargement! of! these! categories,! the! State!
Department! can! file! a! suggestion! of! immunity! with! the! court.! Should! it!
require! contraction,! Department! can! issue! new! or! clarifying! policy!
pronouncement!
The! Comisarias! chartering! of! Victorys! ship! is! not! strictly! a! public! act! but!
more!a!private!commercial!act.!It!has!all!the!earmarks!of!such:!
a
executed!for!Comisaria!by!the!head!of!its!commercial!division!
a
wheat! ! was! consigned! to! and! shipped! by! private! commercial!
concern!
a
inclusion!of!the!arbitration!clause!!
The! French! CA! dismissed! a! claim! of! sovereignty! by! the! governmental!
charterer! which! had! agreed! to! arbitration,! pointing! out! that! even! if! you!
broaden!the!view!to!say!that!purchase!of!wheat!was!to!help!feed!the!people!
of!Spain,!it!still!remains!commercial!activity!
Comisaria! does! not! claim! that! wheat! will! be! used! for! the! public! services! of!
Spain.! Presumptively,! the! wheat! will! be! sold! to! Spanish! nationals.! The!
purchasing!activity!was!through!private!channels!of!trade!
In! New! York! and! Cuoa! Mail! v.! Republic! of! Korea,! we! held! that! wartime!
transportation! of! rice! to! civilian! and! military! personnel! is! not! a! public! act,!
and!so!the!peacetime!transportation!of!wheat!for!presumptive!resale!is!not!a!
public!act!!
Generally,! purchasing! activity! by! a! State! instrumentality,! particularly! for!
resale!to!nationals,!is!a!commercial!or!private!activity!
District!court!affirmed.!!

!
2!

3. Gov't'of'the'Democratic'Rep.'of'the'Congo'v.'Venne'(RS)''
Supreme!Court!of!Canada,!1972!
TOPIC:! State! Immunity;! Congos! entry! into! a! contract! with! a! Canadian! architect!
for!sketching!its!pavilion!is!a!public!act.!
Appellant:!The!Congo!

a!Yes,!it!was!an!act!made!pursuant!to!its!sovereign!capacity.!Therefore,!The!Congo!
can! invoke! sovereign! immunity! and! could! not! be! impleaded! in! the! Courts! of!
Quebec.!
!

Appellee:!Venne,!the!Canadian!architect!
Ponente:!Ritchie,!J.!!
FACTS:'

Appeal!from!a!judgment!of!the!CA!of!Province!of!Quebec,!which!dismissed!an!
appeal!from!a!judgment!of!the!Superior!Court!of!Montreal,!which!disallowed!
the!appellants!(The!Congo)!claim!that,!by!reason!of!its!sovereign!immunity,!
it!could!not!be!imp!leaded!in!the!courts!of!Quebec.!
Venn!!an!architect!who!claims!to!have!been!retained!between!Feb!1965!and!
March!1966,!on!behalf!of!The!Congo!for!the!purpose!of!making!preliminary!
studies!and!preparing!sketches!in!relation!to!the!national!pavilion!which!The!
Congo!proposed!to!build!at!Expo!67!(ie,!Canadas!main!celebration!for!its!
centennial! year,! held! in! 1967).! Venne! was! hired! by! duly! accredited!
diplomatic!representatives!of!The!Congo.!
Vennes! declaration! incorporated! an! unsigned! copy! of! a! contract,! pursuant!
to!which!he!claims!to!have!been!employed,!and!also!certain!sketches!of!the!
proposed!pavilion!which!he!claims!to!have!furnished!to!The!Congo.!
Venne! prepared! a! bill! of! $20,000! for! services! rendered! which! he!
subsequently!reduced!to!$12,000!and!which!was!not!paid!because!the!Congo!
decided!not!to!proceed!with!the!pavilion.!
Venne!sued!The!Congo.!
Superior!Court!of!Montreal!decided!in!favor!of!Venne!
CA!of!Quebec!affirmed,!thereby!dismissing!The!Congos!appeal.!CA!accepted!
the!trial!Judges!finding!that!when!the!Congo!employed!Venne!to!prepare!the!
sketches! of! the! national! pavilion! which! it! proposed! to! build! at! a! duly!
authorized! international! exhibition,! it! was! not! performing! a! public! act! of! a!
sovereign!state!but!rather!one!of!a!purely!private!nature!(thus,!not!immune).!
!

ISSUES/HELD:'
W/N! The! Congos! act! of! employing! Venne! for! the! construction! of! a! national!
pavilion!constituted!a!public!act.!

Considered! from! the! point! of! view! of! the! architect,! the! contract! may! be!
deemed! a! purely! commercial! one,! but,! even! if! the! theory! of! restrictive!
sovereign!immunity!were!applicable,!the!questions!to!be!determined!would!
not! be! whether! the! contractor! was! engaged! in! a! private! act! of! commerce,!
but!whether'or'not'the'Congo,'acting'as'a'visiting'sovereign'state'through'
its' duly' accredited' diplomatic' representatives,' was' engaged' in' the'
performance'of'a'public'sovereign'act'of'State.'
Ponente! pointed! out! the! significance! of! the! fact! that! Venne! was! employed!
not! only! by! the! duly! accredited! diplomatic! representatives,! but! also! by! the!
representative!of!the!Dept.!of!Foreign!Affairs!(DFA)!of!The!Congo.'
o This!makes!it!plain!that!in!preparing!for!the!construction!of!its!national!
pavilion,!a'department'of'the'Govt'of'a'foreign'state,'together'with'
its' duly' accredited' diplomatic' representatives,' were' engaged' in' the'
performance' of' a' public' sovereign' act' of' State! on! behalf! of! their!
country! and! that! the! employment' of' Venn' was' a' step' taken' in' the'
performance'of'that'sovereign'act.'
o Therefore,' The' Congo' could' not' be' impleaded' in' the' courts' of'
Quebec'even'if'the'so[called'restrictive'sovereign'immunity'had'been'
adopted'in'the'Canadian'Courts.'
As!an!aside,!there!is!a!suggestion!in!the!CAs!decision!that!the!onus!probandi!
lies! upon! the! Sovereign! to! show! that! the! act! was! a! public! one! if! it! is! to! be!
granted!sovereign!immunity.'
o But!the!ponentes!view!is!that!the!question'of'whether'the'contract'in'
question' was' a' public' act! done! on! behalf! of! a! sovereign! State! for!
State! purposes,! is! one! which! should' be' decided' on' the' record' as' a'
whole' without' placing' the' burden' of' rebutting' any' presumption' on'
either'party.'
Allan&Construction&Ltd.&V.&Got&of&Venezuela:'
o Facts:! Plaintiff! was! hired! by! Venezuela! for! the! construction! of! a!
pavilion! in! the! same! Expo! 67.! However,! Venezuela! planned! to!
incorporate!in!the!pavilion!a!restaurant!with!the!right!to!sell!alcoholic!
liquor!and!to!sell!the!products!of!Venezuela.'
o Held:!Venezuelas!contract!with!the!plaintiff!was!a!commercial!one.'

3!

In' the' case' of' The' Congo,' there' is' no' such' plan' to' incorporate' a'
commercial' venture.' Therefore,' the' case' law' in' Allan& Construction'
Ltd.'does'not'apply'in'this'case.'
US!cases!referred!to!by!the!CA!decision:'
o Tate& Letter:! it! will! hereafter! be! the! [State]! Departments! policy! to!
follow! the! restrictive! theory! of! sovereign! immunity! in! the!
consideration! of! requests! of! foreign! governments! for! a! grant! of!
sovereign!immunity.'
o Victory& Transport& Inc.& v.& Commisaria& General& de& Abastecimientos& y&
Transportes:!'
This! case! was! cited! as! an! example! of! an! independent! judicial!
acceptance!of!the!theory!of!restrictive!sovereign!immunity'
!the!court!must!decide!for!itself!whether!it!is!the!established!
policy!of!the!State!Department!to!recognize!claims!of!immunity!
of!this!type!(i.e.,!restrictive!sovereign!immunity).'
o It!is!thus!clear!that!in!the!US,!the!question!to!be!answered!is!whether!
it! is! the! established! policy! of! the! State! Department! to! recognize! the!
immunity!claimed!in!any!particular!case.'
o As!no!such!question!arises!in!Canada,!the!ponente!takes!tea!view!that!
cases! concerning! sovereign! immunity! decided! in! the! US! Courts! in!
those!years!are!of!little!or!no!authority!in!Canada.'
'
o

DISPOSITIVE:! Judgment! appealed! from! is! reversed.! The! Congo! cannot! be! imp!
leaded!in!the!Court!of!Quebec.!

4. In'Re:'PNB'v'USDC'(JG)''
TOPIC:!Acts!of!State!doctrine!
Petitioner:!Philippine!National!Bank!
Respondents:! United! States! District! Court! for! the! District! of! Hawaii;! Maximo!
Hilao;!Estate!of!Ferdinand!Marcos;!Imelda!R.!Marcos;!Ferdinand!R.!Marcos,!Jr.!
Ponente:!Canby,!Circuit!J.!!
!
FACTS:!

On! one! side! is! a! class! of! plaintiffs! who! obtained! a! large! judgment! in! the!
federal! district! court! in! Hawaii! against! the! Marcos! estate! for! human! rights!
violations!by!the!Marcos!regime.!

The!Republic!of!the!Philippines,!on!the!other!hand,!sought!forfeiture!of!the!
Marcos!estates!assets!on!the!ground!that!they!were!stolen!by!Marcos!from!
the!Philippine!government!and!its!people.!
There!was!an!attempt!by!the!class!plaintiffs!to!get!the!assets!of!the!Marcos!
estate!located!in!Swiss!banks.!!
o The! Swiss! assets! were! frozen! by! the! Swiss! government! at! the!
request!of!the!Republic.!!
o The! class! plaintiffs! obtained! an! injunction! from! the! district! court!
requiring! the! Swiss! banks! to! hold! the! assets! for! the! benefit! of! the!
class!plaintiffs.!
It! was! held! that! the! injunction! violated! the! act! of! state!
doctrine.!
Accordingly,! a! writ! of! mandamus! was! issued! directing! the! dismissal! of! the!
district!courts!order.!!
Thereafter,! the! Swiss! government! released! the! funds! frozen! in! Switzerland!
for!transfer!to!the!PNB!in!escrow!pending!determination!of!proper!disposal!
by!a!competent!court!in!the!Philippines.!!
o The!PNB!deposited!the!funds!in!Singapore.!
o The! Philippine! Supreme! Court! subsequently! held! that! the! assets!
were!forfeited!to!the!Republic!of!the!Philippines.!
The! district! court! then! issued! orders! that! triggered! this! present! petition! for!
mandamus.!
o It!ruled!that!the!Philippine!SC!had!violated!the!due!process!by!
any!standard!and!its!judgment!was!entitled!to!no!deference.!!
o It! further! ordered! that! any! transfer! of! monies,! without! first!
appearing! and! showing! cause! to! the! court! as! to! how! such!
transfer! might! occur! without! violating! the! Courts! injunction,!
shall!be!considered!contempt.!!
o It!issued!an!Order!to!Show!Cause!against!PNB,!which!was!not!a!
party!to!the!litigation,!requiring!the!Bank!to!show!cause!why!it!
should! not! be! held! in! contempt! for! violating! the! courts!
injunction!against!transfer!of!assets!by!the!estate.!!
The! Bank! then! filed! the! present! petition! for! mandamus,! seeking! to! restrain!
the!district!court!from!enforcing!its!Order!to!Show!Cause!and!from!pursuing!
discovery!against!the!Bank!officer.!!
!

ISSUE/HELD:'
W/N' the' entire' proceeding' against' the' Bank' for' its' transfer' of' funds' violated'
the'act'of'state'doctrine.'['YES'
4!

!
RATIO:'
The!Act!of!State!doctrine!

Every! sovereign! state! is! bound! to! respect! the! independence! of! every! other!
sovereign!state,!and!the!courts!of!one!country!will!not!sit!in!judgment!on!the!
acts! of! government! of! another,! done! within! its! own! territory.! Redress! of!
grievances!by!reason!of!such!acts!must!be!obtained!through!the!means!open!
to!be!availed!of!by!sovereign!powers!as!between!themselves.!!
The! doctrine! reflects! the! strong! sense! of! the! Judicial! Branch! that! its!
engagement!in!the!task!of!passing!on!the!validity!of!foreign!acts!of!state!may!
hinder!the!conduct!of!foreign!affairs.!
The!district!courts!orders!in!issue!violated!this!principle.!
o In! order! to! obtain! assets! from! the! PNB,! or! to! hold! the! Bank! in!
contempt!for!the!transfer!of!those!assets!to!the!Republic,!the!district!
court! necessarily! (and! expressly)! held! invalid! the! forfeiture! judgment!
of!the!Philippine!Supreme!Court.!We!conclude!that!this!action!of!the!
district!court!violated!the!act!of!state!doctrine.!
The!class!plaintiffs!in!the!district!court!argue!that!the!act!of!state!doctrine!is!
directed! at! the! executive! and! legislative! branches! of! foreign! governments,!
and!does!not!apply!to!judicial!decisions.!
o Although!the!act!of!state!doctrine!is!normally!inapplicable!to!court!
judgments! arising! from! private! litigation,! there! is! no! inflexible! rule!
preventing! a! judgment! sought! by! a! foreign! government! from!
qualifying!as!an!act!of!state.!
o There! is! no! question! that! the! judgment! of! the! Philippine! SC! gave!
effect!to!the!public!interest!of!the!Philippine!government.!!
The!forfeiture!action!was!not!a!mere!dispute!between!private!parties;!it!was!
an! action! initiated! by! the! Philippine! government! pursuant! to! its! statutory!
mandate!to!recover!property!allegedly!stolen!from!the!treasury.!
o We!have!earlier!characterized!the!collection!efforts!of!the!Republic!
to!be!governmental.!
o The! subject! matter! of! the! forfeiture! action! thus! qualifies! for!
treatment!as!an!act!of!state.!!
The! class! plaintiffs! next! argue! that! the! act! of! state! doctrine! is! inapplicable!
because!the!judgment!of!the!Philippine!SC!did!not!concern!matters!within!its!
own!territory.!
o Generally,!the!act!of!state!doctrine!applies!to!official!acts!of!foreign!
sovereigns!performed!within!their!own!territory.!!

The! act! of! the! Philippine! Supreme! Court! was! not! wholly! external,!
however.!
Its! judgment,! which! the! district! court! declared! invalid,! was!
issued! in! the! Philippines! and! much! of! its! force! upon! the!
Philippine! Bank! arose! from! the! fact! that! the! Bank! is! a!
Philippine!corporation.!!
Even! assuming! that! the! assets! are! no! in! Singapore,! this! fact! does! not!
preclude!the!application!of!the!act!of!state!doctrine.!!
o It!is!to!be!applied!pragmatically!and!with!reference!to!the!underlying!
considerations!of!the!case.!!
The! District! Court! is! thus! directed! to! refrain! from! further! actions! regarding!
the!controversy.!
o

5. Canada:' Act' to' Provide' for' State' Immunity' in' Canadian'


Courts'(JG)''
(Its!pure!codal.!You!may!browse!through!it!if!you!have!the!time!to!do!so.!Below!
are!some!important!points)!

It!does!not!cover!commercial!activity.!
It!does!not!apply!in!cases!of!death/destruction/damage!to!property!within!
Canadas!territory,!or!to!criminal!proceedings,!or!to!actions!involving!
succession.!
No!immunity!if!the!transactions!are!commercial!in!nature.!
Military!properties!are!also!immune.!
The!rights!may!be!waived!through!a!voluntary!submission!to!the!jurisdiction!
of!the!courts!or!by!some!other!expressions!of!consent.!
Injunction!or!specific!performance!reliefs!will!not!be!granted!to!foreign!states!
unless!Canada!consents!to!it.!

6. Il'Congreso'del'Partido'(CG)''
Facts:'

In!Feb!1973,!a!contract!for!sale!of!128,!935!tons!sugar!was!made!between!a!
Cuban!state!trading!enterprise,!Empresa!Exportadora!de!Acuzar!(Cubazucar),!
as!sellers!and!a!Chilean!company,!Industria!Azucarera!Nacional!SA!(Iansa)!
One! shipment! was! made,! which! was! 10,476! tons,! carried! by! Playa! Larga,! a!
Cuban!flag!vessel,!and!operated!by!Mambisa!!
Playa!Larga!was!chartered!for!voyage!to!Chile!by!Cubzucar!
5!

Iansa,!in!turn,!sold!the!sugar!to!another!Chilean!company!
The!other!shipment!was!of!10,890!tons!carried!on!Marble!Islands,!which!was!
Liechtenstein!corporation!with!a!Somali!flag.!It!was!chartered!to!Mambisa!on!
a!demise!charter!and!subachartered!by!Mambisa!to!Cubazucar!for!the!voyage!
to!Chile!
While!Playa!Larga!was!discharging!its!cargo,!a!coup!detat!took!place!in!Chile!
The!take!over!of!President!Pinochet!was!strongly!disapproved!by!Cuba,!thus!
diplomatic!relations!between!Chile!and!Cuba!were!terminated!
Due! to! this,! Playa! Larga! was! ordered! by! Mambisa,! which! was! instructed! by!
the! Cuban! Government,! to! leave! and! join! Marble! Islands! carrying! with! it!
7,907!tons!of!sugar!not!yet!discharged!
Playa!Larga!met!Marble!Islands!at!sea!and!both!of!them!proceeded!to!Peru!
Chilean!authorities,!through!their!embassy,!requested!discharge!at!that!port,!
but!both!masters!refused,!and!went!back!to!Cuba!
Marble! Islands! also! intends! to! return! to! Cuba! but! was! arrested! at! the!
Panama!Canal!on!the!application!of!Iansa.!It!broke!arrest!and!sailed!west!for!
North! Vietnam.! In! the! course! of! its! voyage,! its! ownership! and! flag! were!
transferred!to!the!Republic!of!Cuba.!!
Its!cargo!was!sold!to!another!Cuban!state!enterprise,!Alimport!
Note:! Mambisa,! Cubazucar! and! Alimport! are! all! state! trading! enterprises.!
Meaning,!they!have!independent!legal!existence!and!are!not!departments!of!
the!Cuban!state.!It!is!not!claimed!that!it!would!be!entitled!to!state!immunity.!
But! it! is! subject! to! direction! and! control! by! the! Cuban! government.! State!
controlled!enterprises,!with!legal!personality,!ability!to!trade!and!enter!into!
contracts!of!private!law,!though!wholly!subject!to!the!control!of!their!state,!
are!a!wellaknown!feature!of!modern!commercial!scene.!

Issue:! WON! a! plea! of! state! immunity! can! be! raised! as! to! deny! jurisdiction! of!
courts!of!other!states!as!to:!

&
As&to&Playa&Larga&

1.
2.

Playa!Larga!!NO!
Marble!Islands!!YES!

!
Ruling:'

Generally,!the!basis!on!which!one!state!is!considered!immune!from!territorial!
jurisdiction! of! courts! of! another! state! is! par! in! parem,! which! means! that!
the! sovereign! or! governmental! acts! of! one! state! are! not! matters! on! which!
the!courts!of!other!states!will!adjudicate!

However,! exception! to! this! is! the! restrictive' theory,! which! arises! from! the!
willingness! of! states! to! enter! into! commercial,! or! other! private! law,!
transactions!with!individuals.!
It!appears!to!have!two!main!foundations:!(1)!it!is!necessary!in!the!interest!of!
justice! to! individuals! having! such! transactions! with! states! to! allow! them! to!
bring! such! transactions! before! the! courts;! and! (2)! to! require! a! state! to!
answer!a!claim!based!on!such!transactions!does!not!involve!a!challenge!to!or!
inquiry!into!any!act!of!sovereignty!or!governmental!act!of!that!state!
The! restrictive! theory! does! not! and! could! not! deny! capability! of! a! state! to!
resort!to!sovereign!or!governmental!action.!It!merely!asserts!that!acts!done!
within!the!trading!or!commercial!activity!are!not!immune!
Thus,! the! court! first! needs! to! characterize! the! activity! into! which! the!
defendant!state!has!entered!
TEST:! Whether! state! immunity! should! be! granted! or! not,! the! court' must!
consider' the' whole' context' in' which' the' claim' against' the' state' is' made,!
with! a! view! to! deciding' whether' the' relevant' acts' on' which' the' claim' is'
based' should,' in' that' context,' be' considered' as' fairly' within' an' area' of'
activity:!(1)!trading!or!commercial!or!otherwise!of!a!private!law!character,!in!
which! the! state! has! chosen! to! engage;! or! (2)! whether! the! relevant! acts!
should!be!considered!as!having!been!done!outside!that!area!and!within!the!
sphere!of!governmental!or!sovereign!activity!

As!it!appears!from!the!case,!the!appellants!are!able!to!show!that!Playa!Larga!
was!engaged!in!trade!with!the!consent,!if!not!with!the!active!participation,!of!
the! Republic! of! Cuba.! Thus,! they! were! doing! business! with! a! foreign!
government.!
However,' it' is' the' opinion' of' this' judge' that' the' decision' not' to' complete'
the'unloading'or'the'discharging'was'NOT'a'political'decision'taken'by'the'
government'of'Cuba'for'political'and'non[commercial'reasons'
Everything!done!by!the!Republic!of!Cuba!in!relation!to!Playa!Larga!could!have!
been!done,!and,!so!far!as!evidence!goes,!was!done,!as!owners!of!the!ship'
It! did! not! exercise,! and! had! no! need! to! exercise,! sovereign! powers! and!
invoked!no!governmental!authority'
All! the! documents,! such! as! the! bills! of! lading,! were! carried! out! (legally! or!
illegally)!as!trading!operations!governed!by!contract!and!by!private!law'
The!Republic!of!Cuba!never!entered!into!these!operations'

As&to&Marble&Islands&
6!

The! acts! of! the! Republic! of! Cuba! were! and! remained! in! their! nature! purely!
governmental!
There! was! no! purely! commercial! obligation! involved! and! the! vessel! never!
entered! the! trading! area! (remained! at! sea)! and! never! entered! into!
commercial!relations!

7. Trendtex'Trading'Corp'v.'Central'Bank'of'Nigeria'(CG)''

Facts:'

The! Central! Bank! of! Nigeria! issued! a! letter! of! credit! drawn! on! the! Midland!
Bank!in!London!in!favor!of!the!plaintiff,!to!pay!for!cement!sold!by!the!plaintiff!
to!an!English!company!
The!bank!assured!the!plaintiff!that!the!letter!of!credit!was!reliable!
The! plaintiffs! purchased! the! cement,! sold! it! to! the! English! company,! and!
shipped!it!to!Nigeria.!!
However,! the! bank! refused! to! pay,! and! the! plaintiff! brought! this! action! on!
the!letter!of!credit!

!
Issue:'WON!the!Bank,!as!an!arm!or!department!of!the!Nigerian!Government,!was!
entitled!to!sovereign!immunity!a!NO!
!
Ruling:'

The! doctrine! of! absolute! immunity! has! been! abandoned,! and! has! been!
replaced!by!the!doctrine!of!restrictive!immunity'
This!doctrine!gives!immunity!to!acts!of!a!governmental!nature,!described!in!
Latin! as! jure& imperil,! but! no! immunity! to! acts! of! a! commercial! nature,! jure&
gestionis'
The!modern!rule!of!international!law!is!if!the!dispute!concerns,!for!instance,!
the!commercial!transactions!of!a!foreign!government!(whether!carried!on!by!
its!own!departments!or!agencies!or!by!setting!up!separate!legal!entities),!and!
it! arises! properly! within! the! territorial! jurisdiction! of! our! courts,! there! is! no!
ground!for!granting!immunity'
The!European!Community!as!well!adopts!the!doctrine!of!restrictive!immunity'
In!this!case,!the!original!contracts!for!cement!were!made!by!the!Ministry!of!
Defense!of!Nigeria,!and!that!the!cement!was!for!the!building!of!barracks!for!
the!army'
The!contracts!of!purchase!were!acts!of!governmental!nature!!jure&imperii!!
and!not!of!a!commercial!nature!!jure&gestionis'

However,! it! entered! into! a! commercial! transaction,! thus! the! government!


department!should!be!subject!to!all!the!rules!of!the!marketplace'
The!seller!is!not!concerned!with!the!purpose!to!which!the!purchaser!intends!
to!put!the!goods'
Also,!the!plaintiffs!here!are!not!suing!on!the!contracts!of!purchase.!They!are!
claiming!on!the!letter!of!credit,!which!is!an!entirely!separate!contract.!It!was!
a!straightforward!commercial!transaction.'
Although!the!Bank!is!considered!an!alter!ego!or!organ!of!government,!the!
internal! arrangements! ought! not! to! affect! the! availability! of! immunity! in!
international!law.!A!foreign!department!of!state!ought!not!to!lose!immunity!
simply!because!it!conducts!some!of!its!activities!by!means!of!a!separate!legal!
entity.!But!still,!the!nature!of!the!transaction!must!be!the!one!looked!at.'

'
Conclusion'

In! my! opinion,! the! plea! of! sovereign! immunity! does! not! avail! the! Central!
Bank!of!Nigeria.!I!would!allow!the!appeal,!accordingly.'

'
Separate'Opinions'(Justices'Stephenson'and'Shaw)'

There!is!not!enough!evidence!that!the!Central!Bank!of!Nigeria!is!an!alter!ego!
of!the!Nigerian!Government'
But!nonetheless,!immunity!will!not!shield!it!from!liability'
The! new! restrictive! rule! is! more! in! consonance! with! justice! since! strict!
adherence! to! the! absolute! rule! based! on! a! perverse! notion! of! sovereign!
dignity!will!in!fact!only!disserve!international!comity!rather!than!promote!the!
same'

'

B.'DIPLOMATIC'AND'CONSULAR'IMMUNITY'
1. Vienna'Convention'on'Diplomatic'Relations'(RL)'

Head!of!the!Mission!!person!charged!by!the!sending!state!with!the!duty!of!
acting!in!that!capacity!
Diplomatic!Agent!!head!of!the!mission!or!a!member!of!the!diplomatic!staff!
of!the!mission!
Establishment!of!diplomatic!relations!between!states!takes!place!by!mutual!
consent.!
The! receiving! state! may! at! any! time! without! having! to! explain! its! decision,!
notify!the!sending!state!that!the!head!of!the!mission!or!any!member!of!the!
diplomatic!staff!is!persona!non!grata.!
7!

The! receiving! state! is! under! a! special! duty! to! take! all! appropriate! steps! to!
protect!the!premises!of!the!mission!against!any!intrusion!or!damage!and!to!
prevent! any! disturbance! of! the! peace! of! the! mission! or! impairment! of! its!
dignity.!
The!premises!of!the!mission,!their!furnishings!and!other!property!and!means!
of!transport!of!the!mission!shall!be!IMMUNE!from:!
o Search!
o Requisition!
o Attachment!
o Execution.!
The! sending! state! and! the! head! of! the! mission! shall! be! exempt! from! all!
national,!regional!or!municipal!dues!and!taxes,!except:!
o Indirect!taxes,!dues!on!immovable!property,!estate!duties,!dues!and!
taxes! on! private! income,! charges! levied! for! specific! services,!
registration!and!court/record!fees,!and!the!like.!
The!ff!shall!be!inviolable:!
o Premises!of!the!mission!
o Archives!and!documents!of!the!mission!
o Official!correspondence!of!the!mission!
The!diplomatic!bag!shall!not!be!opened!or!detained!
o Diplomatic!carrier!(enjoys!personal!inviolability)!
o Person!of!a!diplomatic!agent!
Not!liable!to!any!form!or!arrest!or!detention!
o Private!residence!of!a!diplomatic!agent!
Diplomatic! agent! enjoys! immunity! from! the! criminal! jurisdiction! of! the!
receiving!state,!as!well!as!civil!and!administrative!jurisdiction!
Immunity!may!be!waived!by!the!sending!state,!EXPRESSLY.!
Members! of! the! family! of! a! diplomatic! agent! and! members! of! the!
administrative! and! technical! staff! of! the! mission,! as! well! as! their! family!
members,!who!are!not!nationals!of!the!receiving!state!shall!enjoy!the!same!
immunities!and!privileges!

Establishment! of! consular! relations! between! states! takes! place! by! mutual!
consent.!
The!ff!shall!be!inviolable:!
o Premises!of!the!consular!
Unless! the! head! gives! consent! in! cases! of! fire! or! other!
disaster!requiring!prompt!action!
o Archives!and!documents!
o Official!correspondence!!
The!consular!bag!shall!not!be!opened!or!detained!
Unless! competent! authorities! have! serious! reason! to!
believe! that! something! other! than! the! correspondence! is!
contained!therein!(may!request!that!the!bag!be!opened)!
o Consular!carrier!(enjoys!personal!inviolability)!
Consular! premises! are! be! exempt! from! all! national,! regional! or! municipal!
dues!and!taxes,!except:!
o Indirect!taxes,!dues!on!immovable!property,!estate!duties,!dues!and!
taxes! on! private! income,! charges! levied! for! specific! services,!
registration!and!court/record!fees,!and!the!like.!
Consular! officers! enjoys! immunity! from! the! criminal! jurisdiction! of! the!
receiving!state,!!
o Except!in!the!case!of!a!grave!crime!and!pursuant!to!a!decision!by!the!
competent!judicial!authority;!
o As!well!as!civil!and!administrative!jurisdiction!
Unless! the! civil! action! arises! out! of! a! contract! concluded!
was!done!not!in!his!official!capacity/scope!of!his!authority!

Or!a!third!party!for!damage!arising!from!an!accident!

3. US'v'Iran'(QN)'
ICJ!Reports!1980,!p.!3!

(This!case!actually!involves!a!twoapart!story.!The!digest!will!follow!the!way!it!was!
discussed!in!the!case.)!

2. Vienna'Convention'on'Consular'Relations'(RL)'

Consular! post! ! consulateageneral,! consulate,! viceaconsulate! or! consular!


agency!
Two!categories:!
o Career!Consular!Officers!
o Honorary!Consular!Officers!

Part!1!
Facts:!

The!case!talks!about!the!events!in!the!movie,!Argo.!Watch!it.!Astig!yun.!

8!

(Not!in!McRae)!In!1979,!the!Iranian!Revolution!took!place.!It!overthrew!the!
Shah! (Emperor)! Mohammad! Reza! Pahlavi,! and! installed! Ayatollah! Khomeini!
as!the!new!leader!of!Iran.!The!Shah!went!on!exile!to!the!US.!
In! November! 4,! 1979,! armed! militant! students! attacked! and! seized! the! US!
Embassy! in! Tehran.! They! took! those! inside! as! their! hostages,! including! 2!
American! private! individuals.! They! also! ransacked! the! property! and! the!
archives.!
During! the! 3ahour! attack,! no! police! or! military! unit! from! the! Iranian!
government!came!to!stop!the!attack.!
There!was!no!indication!that!the!actions!of!the!militants!were!under!orders!
from! the! Iranian! government.! Thus,! the! acts! by! the! militants! cannot! be!
imputable!to!the!Iranian!State.!
(The! following! day,! the! US! Consulates! at! Tabriz! and! Shiraz! were! also!
ransacked!by!militants.)!

!
Held:!

!
Issue:' Despite!the!acts!not!being!imputable!to!the!Iranian!State,!did!it!have!any!
responsibility!with!regard!to!the!events!which!transpired?!
!
Held:'YES'

Iran!has!the!obligation!to!take!appropriate!steps!to!ensure!the!protection!of!
the! US! Embassy! and! Consulates,! their! staffs,! their! archives,! their! means! of!
communication,!and!the!freedom!of!movement!of!their!staffs.!
The! 1961! Vienna! Convention! on! Diplomatic! Relations! imposes! upon! the!
receiving! State! the! special! duty! to! protect! the! premises! of! the! diplomatic!
mission! (Art.! 22)! and! to! protect! the! person! of! a! diplomatic! agent! (Art.! 29).!
Art.!24!protects!the!archives!and!documents!of!the!embassy.!
These! obligations! are! also! in! the! 1963! Vienna! Convention! on! Consular!
Relations.!
The!inaction!by!the!Iranian!Government!thus!constituted!a!clear!and!serious!
violation!of!Irans!obligation!under!the!1961!and!1963!Vienna!Conventions.!

!
Part!2!
Facts:!

At! a! press! conference! the! following! day,! the! Iranian! Foreign! Minister,! Mr.!
Yazdi,!announced!that!the!actions!of!the!students!enjoys!the!endorsement!
and! support! of! the! government,! because! America! herself! is! responsible! for!
this!incident.!

On! November! 17,! 1979,! Ayatollah! Khomeini! issued! a! decree! asserting! that!
the!US!Embassy!was!a!center!of!espionage!and!conspiracy!and!that!people!
there!did!not!enjoy!international!diplomatic!respect.!
The! same! decree! also! proclaimed! that! the! American! Embassy! and! the!
hostages!would!remain!as!they!are!until!the!US!hands!over!the!deposed!Shah!
back!to!Iran.!
The! actions! of! the! Ayatollah! and! the! rest! of! the! Iranian! Government! thus!
turned! the! continued! occupation! of! the! Embassy! and! detention! of! the!
hostages!into!acts!of!the!State.!The!militants!became!agents!of!the!state.!

These!acts!thus!resulted!in!additional!and!continuing!breaches!by!Iran!of!its!
obligations!under!the!1961!and!1963!Vienna!Conventions.!
o The! conventions! forbid! agents! of! the! receiving! State! to! enter! the!
premises!of!a!mission!without!consent!or!to!undertake!any!search,!
requisition,!attachment!or!like!measure!in!the!premises.!
o Art.! 29! of! the! 1961! Vienna! Convention! forbids! the! arrest! or!
detention!of!a!diplomatic!agent.!
o Iran! also! violated! the! obligation! to! preserve! the! inviolability! of! the!
archives!and!documents!of!diplomatic!missions.!It!also!breached!its!
obligation!to!provide!for!freedom!of!movement!and!communication!
of!the!diplomatic!staff.!!
In!the!continuation!of!the!detention!of!the!diplomatic!staff,!Iran!was!also!in!
violation!of!the!fundamental!principles!in!the!UN!Charter!and!the!Universal!
Declaration!of!Human!Rights.!
The! Court! further! reiterated! the! gravity! of! the! situation! because! it! was! a!
state!itself,!and!not!just!certain!individuals,!which!violate!international!law.!
(The!Court!also!mentioned!that!the!American!military!incursion!into!Iranian!
territory!in!April!1980,!while!this!case!was!pending,!tended!to!undermine!the!
respect!for!the!judicial!process.!However,!it!did!not!rule!on!the!legality!of!the!
operation!since!it!was!not!at!issue!in!the!current!case.!

!
The'Courts'Final'Ruling:!

13! votes! to! 2:! the! Islamic! Republic! of! Iran! has! violated! and! is! still! violating!
obligations!it!owes!to!the!USA.!
13!votes!to!2:!The!Islamic!Republic!of!Iran!thus!have!a!responsibility!towards!
the!USA!
9!

Unanimously:! Iran! must! immediately! take! all! steps! to! redress! the! situation!
by:!
o Immediately! terminating! the! unlawful! detention! of! the! US!
diplomatic!and!consular!staff!
o Ensuring!that!the!said!persons!have!the!necessary!means!of!leaving!
Iran,!including!means!of!transport!
o Immediately! placing! in! the! hand! of! the! protecting! Power! the!
premises,!property,!archives!and!documents!of!the!US!Embassy!and!
Consulates!
Unanimously:!no!member!of!the!US!diplomatic!or!consular!staff!may!be!kept!
in!Iran!to!be!subjected!to!any!form!of!judicial!proceeding!or!to!participate!as!
a!witness!
12! votes! to! 3:! Iran! is! obliged! to! make! a! reparation! to! the! US! for! the! injury!
caused!by!the!events!
14! votes! to! 1:! The! form! and! amount! of! reparation! shall! be! settled! by! the!
Court!in!a!subsequent!procedure,!if!US!and!Iran!fail!to!agree.!

4. Diplomatic' and' Consular' Privileges' and' Immunities' in'


Canada'(RL)'

'

An'Act'Respecting'Diplomatic'and'Consular'Privileges'and'Immunities'in'Canada'

If! it! appears! to! the! Sec! of! State! for! External! Affairs! that! the! Canadian!
diplomatic/consular! post! enjoys! lesser! rights! than! those! conferred! by!
Canadian! Law! to! the! post! of! that! country,! he! may! withdraw! some! or! all! of!
the!privileges!and!immunities!conferred!to!their!post!in!Canada.!
The!same!may!be!restored.!
If! there! is! a! question! as! to! a! persons! status! or! entitlement! to! the! said!
privileges,!a!certificate!from!the!Sec!shall!constitute!conclusive!proof!of!the!
facts!so!stated.!

!
ISSUE/HELD:!W/N'the'leaving'of'the'diplomatic'staff'temporarily'terminates'his'
diplomatic'immunityNO.'It'ceases'when'he'leaves'the'country'permanently.!
RATIO:'

5. Re'Regina'and'Palacios'(RL)'
(1984)'
Topic:!Temporary!departure!is!not!tantamount!to!losing!ones!immunity!
Treaties/Laws:'Vienna!Convention!on!Diplomatic!Relations!
!
FACTS:'
!

A!Nicaraguan!diplomatic!staff!has!been!residing!in!Ottawa!with!his!wife!and!
child.!
July!12,!1983,!he!was!advised!that!Nicaragua!had!terminated!his!duties!at!his!
mission.!
July!16,!1983,!he!left!Canada!for!a!temporary!visit!to!the!US.!
When!he!returned,!he!was!detained!by!the!police!and!later!on!was!issued!a!
search!warrant.!
He! was! then! arrested! for! possession! of! cocaine! as! well! as! prohibited!
weapons!(2!revolvers)!and!careless!storage!of!ammunition.!
The!counsel!for!the!Republic!of!Nicaragua!contends!that!Palacios!has!lost!his!
immunity!when!he!left!the!country!to!visit!the!US.!
The! lower! court! ruled! that! according! to! the! Convention,! the! words! leaves!
the! country! must! be! interpreted! to! be! permanently! leaving! the! country! in!
order!for!him!to!lose!his!diplomatic!immunity.!

The! personal! inviolability! of! diplomats! has! been! recognized! by! all! legal!
systems!since!the!earliest!times.!
o Such!immunity!is!meant!to!ensure!the!efficient!performance!of!the!
functions!of!diplomatic!missions!as!representing!States.!
The!immunities!recognized!by!CIL!were!considered!to!be!incorporated!in!the!
domestic!law!of!Canada!by!the!SC!of!Canada.!
Under! customary! rules,' immunity' is' not' limited' in' time' to' the' dates' on'
which'the'diplomat'takes'up'his'duties'and'relinquishes'them.!
o It! extends' to' protect' them' from' the' time' he' enters' the' host'
country!for!the!purpose!of!taking!up!his!duties!and'for'a'reasonably'
time' after' their' termination!in!order!to!enable!him!to!wind!up!his!
affairs!and!leave!the!country.!
o Reasonable! time! is! measured! by! the! time! required! to! permit! the!
diplomat!to!move!permanently!from!the!host!country!either!to!his!
home!country!or!to!another!foreign!posting.!
In! interpreting! the! treaty! which! states! that! privileges! and! immunities! shall!
normally! cease! at! the! moment! he' leaves' the' country,' or' on' expiry' of' a'
reasonable'period'in'which'to'do'so:!
10!

o
o

Use! the! effectiveness' principle! which! requires! the! court! to! read! a!
treaty! as! a! whole! to! ascertain! its! purpose! and! intent! and! to! give!
effect!thereto!
It' is' without' doubt' that' the' phrase' leaves' the' country' refer' to'
permanent'departure'from'the'host'country.!
It!would!require!the!clearest!possible!language!in!the!convention!to!
compel! the! conclusion! that! a! diplomat! would! have! any! lesser!
protection!under!it!and!could!lose!his!immunity!by!a!temporary!visit!
outside! the! country! before! he! was! ready! or! required! to! leave! the!
country!permanently.!

AREAS'NOT'SUBJECT'TO'THE'JURISDICTION'OF'
INDIVIDUAL'STATES'
A.'HIGH'SEAS'
1. UNCLOS'(Art.'87,'97,'101)'(RL)'
Art.'87!!The!High!Seas!are!open!to!all!States,!whether!coastal!or!landalocked.!

6. Diplomatic'Bag'(RL)'

The! Nigerian! Ministry! of! External! Affairs! delivered! notes,! informing! the! US!
embassy!that!it!will!conduct'careful'searches,'without'distinction,'of'goods'
and'persons'entering'Nigeria.!
view
This! is! in! lieu! of! their! purpose! of! combating! the! importation! of! Nigerian!
currency.!
No'packages,'documents'or'articles'are'immune!from!search.!
The!US'Embassy,!in!a!note,!protested'and'objected!to!this,!stating!that:!
o IL! governing! diplomatic! relations! prohibits' any' interference' with'
official'correspondence!and!diplomatic!pouches!
o Nigeria!is!a!party!to!the!Vienna!Convention!on!Diplomatic!Relations!
and!as!such!adheres!to!the!provisions!laid!therein.!
o As! regards! consular! communications,! IL! does' not' permit' the'
receiving'state'to'detain'any'pouch'nor'to'request'the'opening'of'
the' same,!unless!its!authorities!have!serious!reason!to!believe!that!
the! pouch! contains! something! other! than! the! correspondence! and!
such!must!be!done!with!the!consent!of!the!sending!state!
o Further,! in! the! bilateral! consular! convention! between! the! US! and!
the! Federal! Military! Government,! the! consular' correspondence'
shall' be' INVIOLABLE! and! the! authorities! of! the! territory! shall! not!
examine!or!detain!it.'
o The!measure!to!be!taken!by!Nigeria!is!contrary!to!IL.'

Allowable'acts'of!states!(freedom!of):!
o Navigation!
o Overaflight!
o Fishing!
o Research!
o Laying!of!Submarine!Cables!and!Pipelines!
o Construction!of!Artificial!Islands!

!
Art.' 97!!In!case!of!collisions!in!the!high!seas,!penal!or!disciplinary!proceedings!
can!only!be!instituted!against!the!master!of!the!vessel!before!the:!(1)!flag!state;!
or!(2)!state!of!which!he!is!a!national!

In!disciplinary'matters,!only!the!state!which!issued!the!masters!certificate!or!
certificate!of!competence!or!license!may!withdraw!the!same!
Only!the!flag!state!may!order!the!arrest'or'detention!of!the!ship/vessel!

!
Art.'101!!Piracy!

Illegal' act' of' violence/detention' or' any' act' of' depredation! committed! for!
private! ends! by! the! crew! or! the! passengers! of! a! private! ship! or! aircraft!
directed! on' the' high' seas! against! another! vessel! or! person/property! on!
board;! or' against! any! ship/aircraft/person/property! in! a' place' outside' the'
jurisdiction'of'any'state!
Any!act!of!voluntary' participation!in!the!operation!of!the!ship/aircraft!with!
knowledge!of!such!fact!that!it!is!a!pirate!ship/aircraft!
Inciting'or'intentionally'facilitating!the!acts!above!

2. Persons' entitled' to' privileges' (pls' see' handouts' pages'


223(a)[(c))'
3. In're'Piracy'Jure'Gentium'(RL)'
FACTS:'

11!

A!number!of!armed!Chinese!nationals!were!cruising!in!two!Chinese!junks.!
They! pursued! and! attacked! a! cargo! junk,! also! a! Chinese! vessel! on! the! high!
seas.!
The!master!of!the!cargo!junk!attempted!to!escape!and!a!chase!ensued!until!
two!ships,!Hang!Sang!and!Shui!Chow,!approached!the!scene.!
The! command! of! the! two! latter! ships! intervened! and! the! pursuers! were!
eventually!taken!in!charge.!
They!were!brought!as!prisoners!to!HK!and!indicted!for!the!crime!of!robbery.!
The!jury!found!them!guilty!but!the!HK!Full!court!acquitted!them,!arriving!at!
the!conclusion!that!robbery!was!necessary!to!support!conviction.!

'
ISSUE/HELD:! W/N! actual! robbery! is! an! essential! element! of! the! crime! of! piracy!
jure! gentium! or! a! frustrated! attempt! to! commit! piratical! robbery! is! not! equally!
piracy!jure!gentiumNO,!it!is!not!an!element!of!piracy!and!it!is!equally!piracy!jure!
gentium.!
'
RATIO:'
(Note& that& the& HK& courts& decision& was& final,& but& this& matter& was& referred& to& a&
Judicial&Committee&for&hearing&and&consideration)&

Actual'robbery'is'NOT'an'essential'element'in'the'crime.'
A' frustrated' attempt' to' commit' piratical' robbery' is' equally' piracy' jure'
gentium.'
Although!the!act!was!committed!outside!the!territorial!jurisdiction!of!HK,!the!
pirates!may!nonetheless!be!tried!therein.!
Having! committed! the! said! crime,! they! have! placed! themselves! beyond! the!
protection!of!any!state.!
They!are!no!longer!nationals!of!a!certain!state,!rather!they!are!hostis&humani&
generis;!and!as!such,!they!are!justiciable!by!any!state!anywhere.!

B.'DEEP'SEA'BED'
1. UN' Declaration' of' Principles' and' UNCLOS' (Art.' 133[159)'
(QN)'
UN' Declaration' of' Principles' Governing' the' Sea[Bed' and' the' Ocean' Floor,' and'
the'Subsoil'Thereof,'beyond'the'limits'of'National'Jurisdiction!
th

General!Assembly!Resolution!2749!(25 !Session)!on!Dec.!17,!1970!
!

1.

The! seaabed! and! ocean! floor,! and! the! subsoil! thereof,! beyond! the! limits! of!
national! jurisdiction,! as! well! as! the! resources! of! the! area,! are! the! common!
heritage!of!mankind.!
2. The!area!shall!not!be!subject!to!appropriation!by!any!State!or!person,!and!no!
State!shall!claim!or!exercise!sovereignty!over!it.!
3. No! State! or! person! shall! claim,! exercise! or! acquire! rights! to! the! area! or! its!
resources! which! are! incompatible! with! the! international! regime! or! the!
principles!of!this!Declaration.!
4. All!exploration!and!exploitation!activities!with!regard!to!the!resources!of!the!
area!shall!be!governed!by!the!international!regime.!
5. The!area!shall!be!open!to!use!exclusively!for!peaceful!purposes!by!all!States,!
coastal!or!landalocked,!in!accordance!with!the!international!regime.!
6. States! shall! act! in! the! area! in! accordance! with! the! applicable! principles! of!
international! law! in! the! interest! of! maintaining! international! peace! and!
security!and!promoting!international!cooperation!and!mutual!understanding.!
7. The! exploration! of! the! area! and! the! exploitation! of! its! resources! shall! be!
carried!out!for!the!benefit!of!mankind!as!a!whole,!regardless!of!geographical!
location! of! States,! and! taking! into! consideration! the! interests! and! needs! of!
developing!countries.!
8. The!area!shall!be!reserved!exclusively!for!peaceful!purposes.!
9. An! international! regime! governing! the! area! and! its! resources! should! be!
established! by! an! international! treaty! of! universal! character,! generally!
agreed! upon.! It! should! also! provide! for! the! orderly! and! safe! development!
and! management! of! the! area! and! its! resources,! and! ensure! the! equitable!
sharing! of! states,! taking! into! consideration! the! needs! of! the! developing!
countries.!
10. States! shall! promote! international! cooperation! in! scientific! research!
exclusively!for!peaceful!purposes:!
a. By!participation!in!international!programs!
b. Through!effective!publication!of!research!
c. By! cooperation! in! measures! to! strengthen! research! capabilities! of!
developing!countries!
d. No!such!activity!shall!form!the!legal!basis!for!any!claims!with!respect!
to!any!part!of!the!area!or!its!resources.!
11. States! shall! take! appropriate! measures! for! and! shall! cooperate! in! the!
adoption! and! implementation! of! international! rules,! standards! and!
procedures!for:!
a. Prevention!of!pollution!
12!

b.

12.

13.

14.

15.

Protection! and! conservation! of! the! natural! resources! of! the! area!
and! prevention! of! damage! to! the! flora! and! fauna! of! the! marine!
environment!
In! their! activities! in! the! area,! States! shall! pay! due! regard! to! the! rights! and!
legitimate!interests!of!coastal!States!in!the!region!of!such!activities.!Coastal!
states!shall!be!consulted!with!respect!to!activities.!
Nothing!herein!shall!affect:!
a. The!legal!status!of!waters!superjacent!(above!or!overlying)!the!area,!
or!the!airspace!above!
b. The! rights! of! coastal! States! with! respect! to! measures! to! prevent,!
mitigate!or!eliminate!grave!and!imminent!danger!to!their!coastline!
from!pollution!or!threat!thereof!resulting!from!any!activities!in!the!
area!
Every! State! shall! have! the! responsibility! to! ensure! that! its! activities! in! the!
area,! undertaken! by! its! government! or! its! agents,! shall! be! carried! out! in!
conformity!with!the!international!regime!to!be!established.!
Disputes!relating!to!activities!in!the!area!shall!be!resolved!using!the!measures!
in! Article! 33! of! the! UN! Charter! and! such! procedures! for! settling! disputes!
agreed!upon!in!the!international!regime!to!be!established.!

'
1982'UNCLOS'
Part'XX'
'
The!international!regime!mentioned!in!the!UN!Declaration!above!is!now!
embodied!in!Part!XX!of!the!1982!UNCLOS.!It!basically!restates!everything!said!in!
the!declaration.!
!
Some!provisions!not!included!in!the!UN!Declaration:!
Article!156!established!the!International!SeaaBed!Authority!
o All!States!Parties!to!the!UNCLOS!are!members!of!the!Authority!
o Its!seat!shall!be!in!Jamaica!
Article!157!says!that!the!Authority!is!the!organization!through!which!
States!Parties!shall!organize!and!control!activities!in!the!Area!
Article!158!!The!Authority!shall!have!an!Assembly,!a!Council,!and!a!
Secretariat.!
Article!159!!The!Assembly,!consisting!of!all!members!of!the!Authority!
with!one!vote!each,!shall!resolve!questions!relating!to!the!Area.!
!

2. Deep'Sea'Bed'Hard'Mineral'Resources'Act'(NO)'
Sec.!102!Licenses!for!exploration!and!permits!for!commercial!recovery!
!

!
(a) Administrator!shall!issue!to!applicants!who!are!eligible!therefor!licenses!
for!exploration!and!permits!for!commercial!recovery.!
(b) Authorizes! the! holder! to! engage! in! the! exploration! or! commercial!
recovery,as!the!case!maybe,!consistent!with!the!provisions!of!this!act.!
!
(2)!Licenses!or!permit!issued!shall!be!exclusive!with!respect!to!the!holder.!
!
(3)!It!recognizes!the!right!of!the!holder!to!recover!hard!mineral!resources,!and!to!
own,!transport,!use!and!sell!hard!mineral!resources!recovered!under!the!permit!
and!in!accordance!with!the!requirements!of!this!act.!
!
(4)! In! case! of! interference! with! the! exploration! and! commercial! recovery! by!
nationals! of! other! states,! the! Secretary! of! State! shall! use! all! peaceful! means! to!
resolve!the!controversy.!
!
(a) The!administrator!may!not!issue:!
After! the! date! on! which! an! international! agreement! is! ratified!
by!and!enters!into!force!with!respect!to!the!US,!unless!it!is!not!
inconsistent!with!the!agreement!
Which! is! in! conflict! with! a! pending! application,! an! existing!
license,!which!a!reciprocating!state!has!submitted.!
!
(b) Any!exploration!license!before!July!1,!1981,!or!any!commercial!recovery!
to!commence!before!January!1,!1988.!
(c) Any! permit! or! license! or! approve! the! transfer! of! a! license! or! permit!
except!to!a!US!citizen.!
!

3. 3rd'UN'Conference'on'the'Law'of'the'Sea'(NO)'
Bernard'H.'Oxman.'
'
This!happened!on!Feb!27!to!April!4!in!New!York!and!from!July!28!to!August!29,!
1980.! At! the! end! of! the! New! York! session,! they! issued! a! second! revision! of! the!
Informal!Composite!Negotiating!Text!(ICNT).!
!
II.!First!Committee:!Deep!Seabed!Mining!
13!

!
The! committee! discussed! institutional! and! nonainstitutional! issues.! ! It! also!
discussed! the! objective! of! the! parallel! system,! the! objective! of! such! is! to! give!
states!and!private!companies!sponsored!by!states!on!the!one!hand!and!the!new!
international! Enterprise! and! its! partners! on! the! other! hand,! a! genuine!
opportunity!to!mine!the!deep!seabed.!
!
One!of!the!elements!of!settlement!is!that!the!parallel!system!would!be!subject!to!
review!after!about!20!years.!Another!element!is!an!interim!limitation!on!the!rate!
of!expansion!of!production!of!minerals!from!seabed!nodules.!
!
The!new!International!SeaaBed!Authority!would!administer!the!system!and!adopt!
necessary! nondiscriminatory! ground! rules! and! regulation,! including! matters! of!
environmental!protection!and!safety.!!
!
Basically! they! discussed! how! to! grant! the! licenses! for! seabed! mining.! The! body!
will!be!composed!of!36!members!from!different!nations.!The!voting!process!when!
it!comes!to!decisions!where!special!protection!for!the!interest!of!the!minority!is!
not! needed! requires! a! 2/3! vote.! For! decisions! requiring! additional! assurance! a!
vote!of!!of!the!members!present!is!required.!
!!

4. Analysis'of'the'Deep'Seabed'Mining'Provisions'of'the'Law'
of'the'Sea'Convention'(NO)'
S.'Houston'Lay'
I.

Introduction!

!
President! Reagan! withdrew! the! US! delegation! in! the! negotiation! of! the! LOS.!
During!an!interview!he!stated!that!the!deep!seabed!mining!section!did!not!meet!
the!U.S.!objectives.!His!said!that!their!concerns!were:!!
(a)! there! are! provisions! that! would! deter! future! development! of! deep! seabed!
resources;!!
(b)! the! decision! making! process! which! does! not! give! the! US! and! other! states!
reflect!or!protect!their!interests;!!
(c)! amendments! without! prior! US! approval! which! is! incompatible! with! their!
approach!to!treaties;!!
!

(d)! Mandatory! transfer! of! private! technology! and! the! possibility! of! national!
liberation!movements!share;!and!!
(e)! absence! of! assure! access! for! future! deep! seabed! mining.! Despite! these!
objections!the!convention!was!adopted!anyways.!
!
II.

US!beef(problems)!with!Deep!Seabed!mining!regime!

!
Reagan! referred! to! it! as! discouraging! investment! in! mining! and! as! having! a!
deleterious! effect! upon! freeamarket! economics.! US! argue! that! the! pertinent!
articles! of! the! LOS! indicate! that! the! Authority! is! provided! broad! discretionary!
powers!that!amount!to!the!establishment!of!an!economic!cartel.!Their!viewpoint!
is! the! policies! are! not! economically! sound,! most! especially! the! controls! on!
production.!
!
The! US! is! also! faced! with! the! constant! threat! of! being! outvoted! in! the!
International!Seabed!Authority!(ISA).!The!one!nation!one!vote!principle!is!based!
on! the! sovereign! equality! of! states.! They! further! argue! that! the! US! is! not!
guaranteed!with!a!seat!in!the!council!while!soviet!states!are!guaranteed!at!least!3!
seats.!
!
To! conclude! this! section,! it! is! clear! that! the! US! and! other! industrialized! nations!
are!fearful!that!the!council!may!always!outvote!them.!The!US!is!not!guaranteed!a!
seat!on!the!council.!The!council!is!the!omnipotent!executive!organ!of!the!ISA!and!
controls!all!aspects!f!deep!seabed!mining.!
!
In!conclusion,!the!US!cannot!sign!a!treaty!that!would!force!private!companies!to!
give!away!their!most!valuable!assets,!especially!when!such!assets!may!eventually!
end!up!with!national!liberation!movements.!Most!importantly,!without!the!LOS,!
US!companies!can!mine!the!seabed!in!accordance!with!customary!international!
law,!protect!their!technology,!recoup!their!investment,!and!preclude!national!
liberation!movements!from!sharing!the!benefits!of!seabed!mining.!

C.'OUTER'SPACE'
1. Treaty' on' Principles' Governing' the' Activities' of' States' in'
the'Exploration'and'Use'of'Outer'Space'(NO)'
Article!I!
14!

The! exploration! and! use! of! outer! space,! including! the! moon! and! other! celestial!
bodies,! shall! be! carried! out! for! the! benefit! and! in! the! interests! of! all! countries,!
irrespective! of! their! degree! of! economic! or! scientific! development,! and! shall! be!
the!province!of!all!mankind.!

persons! by! such! object! or! its! component! parts! on! the! Earth,! in! air! space! or! in!
outer!space,!including!the!Moon!and!other!celestial!bodies.!

If!a!State!Party!to!the!Treaty!has!reason!to!believe!that!an!activity!or!experiment!
planned! by! it! or! its! nationals! in! outer! space,! including! the! Moon! and! other!
celestial! bodies,! would! cause! potentially! harmful! interference! with! activities! of!
other!States!Parties!in!the!peaceful!exploration!and!use!of!outer!space,!including!
the!Moon!and!other!celestial!bodies,!it!shall!undertake!appropriate!international!
consultations!before!proceeding!with!any!such!activity!or!experiment.!

Article!IV!

States!Parties!to!the!Treaty!undertake!not!to!place!in!orbit!around!the!Earth!any!
objects! carrying! nuclear! weapons! or! any! other! kinds! of! weapons! of! mass!
destruction,!install!such!weapons!on!celestial!bodies,!or!station!such!weapons!in!
outer!space!in!any!other!manner.!

Convention!on!International!Liability!for!Damage!Caused!by!Space!Objects!

The! Moon! and! other! celestial! bodies! shall! be! used! by! all! States! Parties! to! the!
Treaty! exclusively! for! peaceful! purposes.! The! establishment! of! military! bases,!
installations! and! fortifications,! the! testing! of! any! type! of! weapons! and! the!
conduct!of!military!maneuvers!on!celestial!bodies!shall!be!forbidden.!The!use!of!
military!personnel!for!scientific!research!or!for!any!other!peaceful!purposes!shall!
not! be! prohibited.! The! use! of! any! equipment! or! facility! necessary! for! peaceful!
exploration!of!the!Moon!and!other!celestial!bodies!shall!also!not!be!prohibited.!

(this!article!is!full!codal!so!what!I!did!is!I!summarized!articles!he!had!checks!and!
underlines!on!and!also!ill!put!a!summary!of!important!points!below)!

Article!II!
Outer! space,! including! the! moon! and! other! celestial! bodies,! is! not! subject! to!
national!appropriation!by!claim!of!sovereignty,!by!means!of!use!or!occupation,!or!
by!any!other!means.!

!
Article!V!

Article!IX!
!

2. Convention' on' International' Liability' for' Damage' Caused'


by'Space'objects'(MT)'

!
Article!1!

!
States!Parties!to!the!Treaty!shall!immediately!inform!the!other!States!Parties!to!
the! Treaty! or! the! SecretaryaGeneral! of! the! United! Nations! of! any! phenomena!
they! discover! in! outer! space,! including! the! Moon! and! other! celestial! bodies,!
which!could!constitute!a!danger!to!the!life!or!health!of!astronauts.!
!
Article!VII!

Article!2!

!
Each! State! Party! to! the! Treaty! that! launches! or! procures! the! launching! of! an!
object!into!outer!space,!including!the!Moon!and!other!celestial!bodies,!and!each!
State!Party!from!whose!territory!or!facility!an!object!is!launched,!is!internationally!
liable!for!damage!to!another!State!Party!to!the!Treaty!or!to!its!natural!or!juridical!
!

Damage:! means! loss! of! life,! personal! injury! or! other! impairment! of!
health;!or!loss!of!or!damage!to!property!of!States!or!of!persons!natural!
or!juridical,!or!property!of!international!governmental!organizations.!
Launching:!includes!attempted!launching.!
Launching!state!means:!!
1. State! which! launches! or! procures! the! launching! of! a! space!
object.!
2. State!from!whose!territory!or!facility!a!space!object!is!launched.!
Space!object:!includes! component! parts! of! a! space! object! as! well! as! its!
launch!vehicle!and!parts!thereof.!
A! launching! state! shall! be! absolutely! liable! to! pay! compensation! for!
damage! caused! by! its! space! object! on! the! surface! of! the! earth! or! to!
aircraft!flight.!

Article!5!

Whenever!two!or!more!states!jointly!launch!a!space!object!they!shall!be!
jointly!and!severally!liable!for!any!damage!caused!
15!

Article!8!

A!state!which!suffers!damage!or!whose!natural!or!juridical!persons!suffer!
damage,!may!present!to!a!launching!state!a!claim!for!compensation!for!
such!damage.!
If!the!state!of!nationality!has!not!presented!a!claim,!another!state!may!in!
respect! of! damage! sustained! in! its! territory! by! any! natural! or! juridical!
person,!present!a!claim!to!a!launching!state.!
If! neither! the! state! of! nationality! nor! the! state! in! whose! territory! the!
damage!was!sustained!has!presented!a!claim!or!notified!its!intention!of!
presenting!a!claim,!another!state!may!in!respect!of!damage!sustained!by!
its!permanent!residents,!present!a!claim!to!a!launching!state.!

Article!15!

The! claims! commission! shall! be! composed! of! three! members:! one!
appointed!by!the!claimant!state,!one!appointed!by!the!launching!state!
and! the! third! member! by! the! Chairman,! to! be! chosen! by! both! parties!
jointly.! Each! party! shall! make! it! appointment! within! two! mos! of! the!
request!for!the!establishment!of!the!claims!commission.!

Summary:!
Outer'Space'

Is!not!subject!to!national!appropriation.!
Only!open!to!scientific!exploration.!!
No!nuclear!weapons!are!allowed!to!be!placed!on!orbit.!
Astronauts!are!entitled!to!emergency!landing.!!
!
There! is! national! responsibility! for! national! activities! in! outer! space;!
state! parties! must! require! authorization! for! nonagovernmental!
activities.!
Jurisdiction!over!the!space!vessels!retained!by!the!flag!state.!!!
There!is!absolute!liability!for!damages!caused!by!space!objects.!

3. Legal'Status'of'Geostationary'Orbit'[GO]'(RK)'
Realm!of!the!Satellites;!approx.!35,000!Km!up!there!
SUMMARY:!Basically,!it!reiterates!the!present!trend!that!the!GO!is!part!of!outer!
space! (as! opposed! to! the! Bogota! Declaration).! As! such,! it! is! governed! by! Outer!
Space! Treaty.! (NO! ONE! OWNS! IT).! Nevertheless,! the! author! considers! GO! as!
having!a!special!legal!status.!What!is!this?!Simply,!in!addition!to!having!a!general!
legal! status! as! part! of! outer! space,! it! has! a! special! legal! status! because! it! is!
!

important,! limited,! and! natural! resource! that! must! be! utilized! efficiently! and!
economically.!!
Introduction'
What!is!the!legal!status!of!geostationary!orbit!(hereinafter&GO)?!!
It!depends!on!whether!it!is!part!of!outer!space!or!not.!!
Outer!Space!Treaty!(1962):!YES'
Bogota!Declaration!(1976):!NO'
What!is!the!implication?!
If!part!of!outer!space,!no!body!owns!it;!heritage!of!mankind.!
If! not! part! of! outer! space,! it! would! be! subject! to! jurisdiction! of! a!
certain!State!
So!far,!no!agreement.!This!paper!discusses!the!legal!status!of!GO.!
GO'as'a'part'of'outer'space'
Two!Arguments!
Bogota!Declaration:!GO!is!part!of!earth!linked!to!it!by!gravity.!Thus,!
not!part!of!outer!space.!
ITU! Convention:! Satellites! affected! not! only! be! earths! gravity! but!
also!that!of!the!moon,!sun,!and!that!of!other!forces.!Likewise,!other!
NonaGOs! (those! higher! in! altitude)! are! also! affected! by! earths!
gravity!but!are!clearly!in!outer!space.!!
Bottomline:!NO!DEFINITION!OF!OUTER!SPACE!
COPUOS!(UN!Committee!on!Peaceful!Use!of!Outer!Space)!tried!to!define:!
1967not! possible! at! the! present! time! to! identify! precisely!
definition!of!outer!space!
1977joined!GO!issue!with!their!agenda!to!define!outer!space.!!
Functionalist!v.!Spatialist!
F:! Atmosphere! is! continuum;! regulate! based! on! purpose! or!
nature!of!flight!
S:! Stressed! need! for! clear! demarcation! between! airspace! and!
outer!space.!!(this!is!the!more!accepted!trend)!
QUESTION:!AT!WHAT!HEIGHT?!!
So!far,!no!agreement!on!the!answer.!
Though! no! agreement! between! spatialists! on! the! height,! they! consider!
GO!as!part!of!outer!space,!thus,!governed!by!outer!space!treaty!
All!satellites!use!the!radio!frequencies!allocated!so!space!services!in!
the!Radio!regulations!
Both! US! and! USSR! (super! space! powers)! agree! that! GO! is! in! outer!
space!
16!

The! Bogota! Declaration! was! motivated! by! political! interest! to!


pressure!the!super!powers!from!saturating!the!GO!
The!Bogota!Declaration!signatories!(countries!found!in!equator)!are!
not!less!strict!in!their!position.!!
Legal'Status'of'Outer'Space!
Often! equated! with! res& extra& commercium,& res& communis,& or! res&
communis&omnium.&!!
However,!the!author!argues!that!the!application!of!these!descriptions!to!
outer!space!is!doubtful!
There!is!fundamental!difference!between!high!seas!(res&communis)!
and!outer!space.!!
One!cannot!equate!islands!in!high!seas!with!celestial!bodies!in!outer!
space!
It!is!prohibited!to!place!nuclear!weapon!in!outer!space!but!the!same!
is!not!prohibited!in!law!of!the!sea!
Law!of!high!seas!developed!based!on!the!realities!of!its!time,!while!
outer!space!law!is!still!being!developed.!
Thus,! the! legal! status! of! outer! space! should! be! considered' primarily'
according' to' the' law' applicable' to' outer' space,' rather' than' resort' to'
abstract'concepts'and'analogies'applicable'to'other'areas.'!
The!legal!status!of!GO!would!then!be!based!on!the!general!principles!of!
international!space!law.!!
It' is' an' integral' part' of' outer' spacean' international' resource'
which' is' free' for' exploration' and' use' by' all' States' on' a' basis' of'
equality'and'which'is'not'subject'to'national'appropriation'
Special'Legal'Status''of'GO'
Has!a!special!legal!status!in!addition!to!the!general!legal!status!of!outer!
space'
Has!unique!advantages!which!could!not!be!derived!from!the!use!of!
other!orbits!around!the!earth'
It!is!a!privileged!portion!of!space'
Considered! a! limited! natural! resource! which! must! be! used!
economically! and! efficiently! to! allow! equitable! access! to! it! by! all!
countries'
Conclusion'
Limited!resource!(finite!space)'
Equal!rights!by!all!countries!(no!one!owns!it)'
Need! to! develop! and! elaborate! special! legal! regime! because! GO! is!
almost!saturated'

'

17!

JURISDICTION OF STATES
COMPILATION OF PHILIPPINE CASES

the regulations of sea-use rights or enacting statutes to comply with the treatys terms
to delimit maritime zones and continental shelves.
G.R. No.: 187167

TERRITORY
1. Magallona v. Executive Secretary
TOPIC: Territory in International Law; Modes of Acquisition of Sovereignty over Territory
Treaties/Laws:
Republic Act No. 9522 - adjusting the countrys archipelagic baselines and
classifying the baseline regime of nearby territories.
United Nations Convention on the Law of the Sea (UNCLOS III)
Art. I of the 1987 Philippine Constitution

RECIT-READY:
Pursuant to UNCLOS III which prescribes the water-land ratio, length, and contour of
baselines of archipelagic States like the Philippines, Congress enacted R.A. 9522 in 2009.
R.A. 9522 shortened one baseline, optimized the location of some basepoints around
the Philippine archipelago and classified adjacent territories, namely, the Kalayaan
Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose islands
generate their own applicable maritime zones. Petitioners are questioning the
constitutionality of R.A. 9522, contending that it reduces Philippine maritime territory
and violates Art. I of the 1987 Philippine Constitution, embodying the terms of the
Treaty of Paris and ancillary treaties that Philippine territory embraces the islands
and all the waters within the rectangular area delimited in the Treaty of Paris. In
upholding the constitutionality of R.A. 9522, the Supreme Court held that baseline laws
(such as R.A. 9522) are statutory mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and continental shelves. This gives
notice to the international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based rights, namely, the
exercise of sovereignty over territorial waters, the jurisdiction to enforce customs, fiscal,
immigration, and sanitation laws in the contiguous zone, and the right to exploit the
living and non-living resources in the exclusive economic zone, and continental shelf.
Also, UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription, not by executing multilateral treaties on

Petitioner: Prof. Merlin M. Magallona, Akbayan Party-List Rep. Risa Hontiveros, Prof. Harry C.
Roque, Jr., And University Of The Philippines College Of Law Students, Alithea Barbara Acas,
Voltaire Alferes, Czarina May Altez, Francis Alvin Asilo, Sheryl Balot, Ruby Amor Barraca, Jose
Javier Bautista, Romina Bernardo, Pagasa Buenaventura, Edan Marri Caete, Vann Dela Cruz,
Rene Delorino, Paulyn May Duman, Sharon Escoto, Rodrigo Fajardo III, Girlie Ferrer, Raoulle Osen
Ferrer, Carla Regina Grepo, Anna Marie Cecilia Go, Irish Kay Kalaw, Mary Ann Joy Lee, Maria Luisa
Manalaysay, Miguel Rafael Musngi, Michael Ocampo, Jaklyn Hanna Pineda, William Ragamat,
Maricar Ramos, Enrik Fort Revillas, James Mark Terry Ridon, Johann Frantz Rivera IV, Christian
Rivero, Dianne Marie Roa, Nicholas Santizo, Melissa Christina Santos, Cristine Mae Tabing,
Vanessa Anne Torno, Maria Ester Vanguardia, and Marcelino Veloso III
Respondents: Hon. Eduardo Ermita, In His Capacity As Executive Secretary, Hon. Alberto Romulo,
In His Capacity As Secretary Of The Department Of Foreign Affairs, Hon. Rolando Andaya, In His
Capacity As Secretary Of The Department Of Budget And Management, Hon. Diony Ventura, In His
Capacity As Administrator Of The National Mapping & Resource Information Authority, And Hon.
Hilario Davide, Jr., In His Capacity As Representative Of The Permanent Mission Of The Republic Of
The Philippines To The United Nations

July 16, 2011


Ponente: Carpio, J.
FACTS:
In 1961, Congress passed Republic Act No. 3046 demarcating the maritime
baselines of the Philippines as an archipelagic State.
o This law followed the framing of the Convention on the Territorial
Sea and the Contiguous Zone in 1958 (UNCLOS I), codifying, among
others, the sovereign right of States parties over their territorial sea,
the breadth of which, however, was left undetermined.
o The second round of negotiations in Geneva in 1960 (UNCLOS II) was
also not able to determine the breadth of the territorial sea.
o Thus, domestically, RA 3046 remained unchanged for nearly 50
years, except for R.A. 5446 passed in 1968, correcting typographical
errors and reserving the drawing of baselines around Sabah in North
Borneo.
In March 2009, R.A. 9552 was enacted by Congress amending R.A. 3046, in
order to be consistent with the terms of the United Nations Convention on the
Law of the Sea (UNCLOS III).

Among others, UNCLOS III prescribes the water-land ratio, length,


and contour of baselines of archipelagic States like the Philippines
and sets the deadline for the filing of application for the extended
continental shelf.
Complying with these requirements, RA 9522 shortened one
baseline, optimized the location of some basepoints around the
Philippine archipelago and classified adjacent territories, namely,
the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
regimes of islands whose islands generate their own applicable
maritime zones.

Petitioners contentions
o RA 9522 reduces Philippine maritime territory and violates Art. I of
the 1987 Philippine Constitution, embodying the terms of the Treaty
of Paris and ancillary treaties
o RA 9522 opens the countrys waters landward of the baselines to
maritime passage by all vessels and aircrafts, undermining Philippine
sovereignty and national security, contravening the countrys
nuclear-free policy, and damaging marine resources, in violation of
relevant constitutional provisions
Respondents contentions
o RA 9522 complies with the terms of UNCLOS III, preserving
Philippine territory over the KIG or Scarborough Shoal.
o RA 9522 does not undermine the countrys security, environment
and economic interests or relinquish the Philippines claim over
Sabah.
o Respondents also question the normative force, under international
law, of petitioners assertion that what Spain ceded to the United
States under the Treaty of Paris were the islands and all the
waters found within the boundaries of the rectangular area drawn
under the Treaty of Paris.
ISSUES/HELD:
Whether RA 9522 is unconstitutional - NO
I. RA 9522 is a Statutory Tool to Demarcate the Countrys Maritime Zones and
Continental Shelf Under UNCLOS III, not to Delineate Philippine Territory
Baseline laws such as RA 9522 are enacted by UNCLOS III States parties to
mark-out specific basepoints along their coasts from which baselines are
drawn, either straight or contoured, to serve as geographic starting points to
measure the breadth of the maritime zones and continental shelf. Article 48 of
UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the


contiguous zone, the exclusive economic zone and the continental
shelf. The breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf shall be
measured from archipelagic baselines drawn in accordance with
article 47.
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones and
continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within
which States parties exercise treaty-based rights, namely, the exercise of
sovereignty over territorial waters (Article 2), the jurisdiction to enforce
customs, fiscal, immigration, and sanitation laws in the contiguous zone
(Article 33), and the right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the
islands and all the waters within the rectangular area delimited in the Treaty
of Paris, the baselines of the Philippines would still have to be drawn in
accordance with RA 9522 because this is the only way to draw the baselines in
conformity with UNCLOS III. The baselines cannot be drawn from the
boundaries or other portions of the rectangular area delineated in the Treaty
of Paris, but from the outermost islands and drying reefs of the archipelago.
UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under
traditional international law typology, States acquire (or conversely, lose)
territory through occupation, accretion, cession and prescription, not by
executing multilateral treaties on the regulations of sea-use rights or
enacting statutes to comply with the treatys terms to delimit maritime
zones and continental shelves. Territorial claims to land features are outside
UNCLOS III, and are instead governed by the rules on general international
law.
II. RA 9522s Use of the Framework of Regime of Islands to Determine the Maritime
Zones of the KIG and the Scarborough Shoal, not Inconsistent with the Philippines
Claim of Sovereignty Over these Areas
RA 9522 merely followed the basepoints mapped by RA 3046, save for at least
nine basepoints that RA 9522 skipped to optimize the location of basepoints
and adjust the length of one baseline (and thus comply with UNCLOS IIIs
limitation on the maximum length of baselines). Under RA 3046, as under RA
9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn
around the Philippine archipelago. Hence, it cannot be said that RA 9522
weakens the countrys claim over the said islands.

RA 9522, by optimizing the location of basepoints, increased the Philippines


total maritime space (covering its internal waters, territorial sea and exclusive
economic zone) by 145,216 square nautical miles.
Further, petitioners argument that the KIG now lies outside Philippine
territory because the baselines that RA 9522 draws do not enclose the KIG is
negated by RA 9522 itself. Section 2 of the law commits to text the Philippines
continued claim of sovereignty and jurisdiction over the KIG and the
Scarborough Shoal:
o SEC. 2. The baselines in the following areas over which the
Philippines likewise exercises sovereignty and jurisdiction shall be
determined as Regime of Islands under the Republic of the
Philippines consistent with Article 121 of the United Nations
Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under
Presidential Decree No. 1596 and

IV. UNCLOS III and RA 9522 not Incompatible with the Constitutions Delineation of
Internal Waters
The Philippines exercises sovereignty over the body of water lying landward of
the baselines, including the air space over it and the submarine areas
underneath. The fact of sovereignty, however, does not preclude the
operation of municipal and international law norms subjecting the territorial
sea or archipelagic waters to necessary, if not marginal, burdens in the
interest of maintaining unimpeded, expeditious international navigation,
consistent with the international law principle of freedom of navigation. Thus,
domestically, the political branches of the Philippine government, in the
competent discharge of their constitutional powers, may pass legislation
designating routes within the archipelagic waters to regulate innocent and sea
lanes passage. Indeed, bills drawing nautical highways for sea lanes passage
are now pending in Congress.
DISPOSITIVE: Petition is Dismissed.

b) Bajo de Masinloc, also known as Scarborough Shoal.


The principal sponsor of RA 9522 in the Senate, Senator Miriam
Defensor-Santiago, took pains to emphasize the foregoing during
the Senate deliberations:
o What we call the Kalayaan Island Group or what the rest of the
world call the Spratlys and the Scarborough Shoal are outside our
archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law
which states: The drawing of such baseline shall not depart to any
appreciable extent from the general configuration of the
archipelago. So sa loob ng ating baseline, dapat magkalapit ang
mga islands. Dahil malayo ang Scarborough Shoal, hindi natin
masasabing malapit sila sa atin although we are still allowed by
international law to claim them as our own.
III. Statutory Claim Over Sabah under RA 5446 Retained
Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the
door for drawing the baselines of Sabah:
o Section 2. The definition of the baselines of the territorial
sea of the Philippine Archipelago as provided in this Act is
without prejudice to the delineation of the baselines of
the territorial sea around the territory of Sabah, situated
in North Borneo, over which the Republic of the
Philippines has acquired dominion and sovereignty.

ADJACENT MARITIME AREAS


2. People v. Tulin
G.R. No. 111709. August 30, 2001
TOPICS: Custodial Investigation; Assistance by Counsel; ADJACENT MARITIME AREAS (In
piracy)
RELEVANT LAWS: Article 3, Section 12 of the Constitution; RA 7659; PD 532; Art 122 of
RPC
Plaintiff-Appellee: People Of The Philippines
Accused-Appellants: Roger P. Tulin, Virgilio I. Loyola, Cecilio O. Changco, Andres C.
Infante, Cheong San Hiong, and John Does
Ponente: Melo, J.
Summary: This was a story of piracy. They attacked in Batangas and brought the vessel
to SG. They were brought up many constitutional issues such as inadmissibility of
evidence due to absence of counsel, etc. So basically the issue here is the jurisdiction of
the court because the trade of the stolen articles, supervised by Hiong, occurred in SG.
But the court said that since this is piracy, it is a reprehensible crime against the world.
The court also said that because the attack was made in the Philippine waters, they
acquired jurisdiction. And the disposition of the cargo and its vessel, which he

participated in, was still part of piracy. Though conspiracy wasnt proved on his part, he
was given a lesser responsibility, an accomplice.
Facts
In March 2, 1991, M/T Tabangao, a cargo vessel owned by the PNOC Shipping
and Transport Corporation, loaded with kerosene, gasoline, and oil, worth P40.4M
was sailing off the coast of Mindoro near Silonay Island.
The vessel was suddenly boarded by seven fully armed pirates led by Emilio
Changco (Emilio), older brother of accused-appellant Cecilio Changco (Cecilio). They
detained the crew and took complete control of the vessel.
Loyola ordered 3 crewmembers to paint over, the name "M/T Tabangao" and
PNOC logos of the vessel with the name "Galilee," with registry at San Lorenzo,
Honduras.
The crew was forced to sail to Singapore, all the while sending misleading radio
messages to PNOC that the ship was undergoing repairs.
PNOC reported the disappearance of the vessel to the Philippine Coast Guard and
secured the assistance of the Philippine Air Force and the Philippine Navy.
However, search and rescue operations yielded negative results.
March 9, 1991 the ship arrived in SG to wait for another vessel, which failed to
arrive. With this, they went back to the Philippines and arrived on March 20
March 28, 1991 "M/T Tabangao" again sailed to SG's shoreline where another
vessel called "Navi Pride" anchored beside it.
March 30, 1991 Emilio ordered the crew of "M/T Tabangao" to transfer the
vessel's cargo to the hold of "Navi Pride". Hiong supervised the crew of "Navi Pride"
in receiving the cargo and the transfer was completed.
April 8, 1991 "M/T Tabangao" arrived at Batangas, but the vessel remained at sea
April 10, 1991 the members of the crew were released in three batches with the
stern warning not to report the incident to government authorities until April 12,
1991, otherwise they would be killed
April 12, 1991 the Chief Engineer and the members of the crew, called PNOC to
report the incident. The crewmembers were brought to the Coast Guard Office for
investigation, and to NBI where they executed sworn statements.
Tulin, Hiong, and Cecilio were arrested in separate days in Batangas.
Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hi-way by NBI agents
as the latter were pursuing the mastermind, who managed to evade arrest.
October 24 1991, an Information charging qualified piracy or violation of PD No.
532 (piracy in Philippine Waters) was filed against accused-appellants. Upon
arraignment, accused-appellants pleaded not guilty to the charge.
Tulin, Infante, Jr., and Loyola, maintained the defense of denial, and disputed the
charge, and the transfer of any cargo from "M/T Tabangao" to the "Navi Pride."
They said that they merely worked for Libo-on as crew of the vessel.
Cecilio categorically denied the charge. But he testified that he is the younger
brother of Emilio.

Hiong, also known as Ramzan Ali, adduced evidence that he studied in Sydney,
Australia, and was later employed at Navi Marine Services, Pte., Ltd. as Port
Captain. The company was engaged in the business of trading petroleum, and
owned four vessels, one of which was "Navi Pride."
Hiongs story was a long one. But basically, he acted as the broker of the pirates in
Singapore. He was the ship agent for the sale of the cargo in SG. He did not join the
actual piracy, hence, he was only convicted as an accomplice. (See ruling 4)
Hiong went to the Philippines to discuss the matter with Emilio, who laid out the
details of the new transfer, this time with "M/T Polaris" as contact vessel.
Issues/Ruling:
(1) What are the legal effects and implications of the fact that a non-lawyer
represented accused-appellants during the trial? PROCEEDINGS ARE STILL VALID
BECAUSE THERE WAS A VALID WAIVER OF RIGHTS MADE BY THE ACCUSEDAPPELLANTS.
Tulin, Loyola, Infante, and Cecilio narrate that Mr. Posadas entered his
appearance as counsel for all of them.
In the course of the proceedings, TC discovered that Mr. Posadas was not a
member of the Philippine Bar.
However, the record reveals that a manifestation was executed by accusedappellants February 11, 1991, stating that they were adopting the evidence
adduced when they were represented by a non-lawyer
Such waiver of the right to sufficient representation during the trial as
covered by the due process clause shall only be valid if made with the full
assistance of a bona fide lawyer
During the trial, accused-appellants, as represented by Atty. Abdul Basar,
made a categorical manifestation that said accused-appellants were apprised
of the nature and legal consequences of the subject manifestation, and that
they voluntarily and intelligently executed the same
They also affirmed the truthfulness of its contents when asked in open court
(2) What are the legal effects and implications of the absence of counsel during the
custodial investigation? EVIDENCE OBTAINED IS INADMISSIBLE.
In this case, the uncounselled extrajudicial confessions of accused-appellants,
without a valid waiver of the right to counsel, are inadmissible and whatever
information is derived therefrom shall be regarded as likewise inadmissible in
evidence against them.
However, regardless of the inadmissibility of the subject confessions, there is
sufficient evidence to convict accused-appellants with moral certainty

(3) Did the trial court err in finding that the prosecution was able to prove beyond
reasonable doubt that accused-appellants committed the crime of qualified piracy?
NO, THERE ARE WITNESSES, AND THEIR ALIBI WOULD NOT SUFFICE
The Prosecution presented to the Court an array of witnesses, officers and
members of the crew of the "M/T Tabangao" no less, who identified and pointed to
the said Accused as among those who attacked and seized, the "M/T Tabangao" on
March 2, 1991, and the said discharge of the cargo for the price of $500K on March
29 and 30
We also agree with the trial court's finding that accused-appellants' defense of
denial is not supported by any hard evidence but their bare testimony.
TCs evaluation of the credibility of a testimony is accorded the highest respect
Conspiracy issue was resolved by saying that even though they had different tasks,
as long as the accused all had the same objective, each would be liable as if
everyone had participated in all the acts (Criminal Law, really)
(4) Did Republic Act No. 7659 obliterate the crime committed by accused-appellant
Hiong?
Hiong argues that he can no longer be convicted of piracy in Philippine waters
under PD No. 532 because it was superseded by RA 7659
He reasons out that PD 532 has been rendered "superfluous or duplicitous"
because both Article 122 of the RPC, and PD 532 punish piracy committed in
Philippine waters.
He maintains that in order to reconcile the two laws, the word "any person"
mentioned in Section 1 [d] of PD 532 must be omitted such that PD 532 shall only
apply to offenders who are members of the complement or to passengers of the
vessel, whereas RA 7659 shall apply to offenders who are neither members of the
complement or passengers of the vessel, hence, excluding him from the coverage
of the law.
RA 7659 neither superseded nor amended the provisions on piracy under PD 532.
There is no contradiction between the two laws. There is likewise no ambiguity and
hence, there is no need to construe or interpret the law.
All the PD did was to widen the coverage of the law, in keeping with the intent to
protect the citizenry as well as neighboring states from crimes against the law of
nations.
As regards the contention that the TC did not acquire jurisdiction over Hiong since
the crime was committed outside Philippine waters, suffice it to state that
unquestionably, the attack on and seizure of "M/T Tabangao" and its cargo were
committed in Philippine waters
Although PD 532 requires that the attack and seizure of the vessel and its cargo be
committed in Philippine waters, the disposition by the pirates of the vessel and its
cargo is still deemed part of the act of piracy, hence, the same need not be
committed in Philippine waters.

Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As
such, it is an exception to the rule on territoriality in criminal law. The same
principle applies even if Hiong, in the instant case, were charged, not with a
violation of qualified piracy under the penal code but under a special law, PD 532
which penalizes piracy in Philippine waters.
It is likewise, well-settled that regardless of the law penalizing the same, piracy is
a reprehensible crime against the whole world
However, does this constitute a violation of accused-appellant's constitutional right
to be informed of the nature and cause of the accusation against him on the
ground that he was convicted as an accomplice under Section 4 of PD 532 even
though he was charged as a principal by direct participation under Section 2 of said
law?
TC found that there was insufficiency of evidence showing that Hiong directly
participated in the attack and seizure and that his act was indispensable to it.
But the finding by the TC that Hiongs participation was one, which aided or
abetted Emilio and his band of pirates in the disposition of the stolen cargo under
PD 532 was upheld
The ruling of the trial court is within well-settled jurisprudence that if there is lack
of complete evidence of conspiracy, the liability is that of an accomplice and not
as principal. Any doubt as to the participation of an individual in the commission of
the crime is always resolved in favor of lesser responsibility.
The record discloses that Hiong aided the pirates in disposing of the stolen
cargo. He profited therefrom by buying the hijacked cargo for Navi Marine
Services. He even tested the quality and verified the quantity of the petroleum
products, connived with Navi Marine Services personnel in falsifying the General
Declarations and Crew List to ensure that the illegal transfer went through,
undetected by Singapore Port Authorities, and supplied the pirates with food, beer,
and other provisions for their maintenance while in port

Dispositive Portion
WHEREFORE, finding the conviction of accused-appellants justified by the
evidence on record, the Court hereby AFFIRMS the judgment of the trial court in toto.
SO ORDERED.
Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.

JURISDICTION OVER PERSONS & ECONOMIC ACTIVITIES


(i) CRIMINAL AND CIVIL JURISDICTION
3. Govt of USA v Purganan
TOPIC: Exceptions to the general rule that right to bail in extradition is not available;
Extradition request must comply with extradition treaties.
TREATIES/LAWS:
G.R. No. 148571. September 24, 2002
Petitioner: GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the DOJ
Respondents: Hon. GUILLERMO G. PURGANAN, Morales, and Presiding Judge, RTC
Manila, Branch 42; and MARK B. JIMENEZ a.k.a. MARIO BATACAN CRESPO
Ponente: PANGANIBAN, J.:
SUMMARY: The Govt of USA requests for the extradition of Jimenez, who is the subject
of an arrest warrant in the USA for charges such as tax evasion, conspiracy to defraud
the US Govt, etc. Jimenez filed a petition in the RTC that he be granted a hearing re:
application of an arrest warrant. This was granted by the RTC. After hearing, the RTC
directed the issuance of an arrest warrant and allowed him to post for bail. USA
contends than an extraditee does not have the right to bail. The SC held that as a
general rule, right to bail is not granted to an extraditee. Extradition cases are sui
generis and does not fall under a criminal procedure. Constitutional rights are only
relevant to determine the guilt or innocence of an accused. There is no such
determination in an extradition case hence the constitutional right to bail cannot be
invoked by an extraditee. However, 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 SC did not rule
w/n he is entitled to bail. Rather, it ordered the extradition court (RTC of Manila) to
continue hearing evidence on the application for bail, which may be granted in
accordance with the guidelines in this Decision.
FACTS:

Pursuant to the RP-US Extradition Treaty, USA sent to the Philippine Government
Note Verbale and accompanied by duly authenticated documents requesting the
extradition of Mark B. Jimenez a.k.a. Mario Batacan Crespo.
The SFA transmitted the documents to the SOJ for appropriate action.
Upon learning of the request for his extradition, Jimenez sought and was granted a
TRO by the RTC of Manila.
o
The TRO prohibited the Department of Justice (DOJ) from filing with the RTC a
petition for his extradition.
The validity of the TRO was assailed by the SOJ.
o The Court dismissed the Petition of the SOJ but reconsidered and reversed its
decision.
o It held that Jimenez was bereft of the right to notice and hearing during the
evaluation stage of the extradition process.
o This Resolution has become final and executory.
The USA, through the DOJ, filed with the RTC the appropriate Petition for
Extradition.
o It alleged that Jimenez was the subject of an arrest warrant issued by the US
District Court for the Southern District of Florida.
o The warrant had been issued in connection with the following charges:
conspiracy to defraud the US, tax evasion, wire fraud, false statements and
illegal campaign contributions.
o In order to prevent the flight of Jimenez, the Petition prayed for the issuance
of an order for his immediate arrest.
Jimenez filed before the RTC an Urgent Manifestation/Ex-Parte Motion, which
prayed that the application for an arrest warrant be set for hearing.
RTC granted the Motion of Jimenez and set the case for hearing.
The USA manifested its reservations on the procedure adopted by the trial court
allowing the accused in an extradition case to be heard prior to the issuance of a
warrant of arrest.
After the hearing, the court required the parties to submit their respective
memoranda.
o Jimenez sought an alternative prayer: that in case a warrant should issue, he
be allowed to post bail in the amount of P100,000.
o The alternative prayer of Jimenez was also set for hearing.
o The court issued an order, directing the issuance of a warrant for his arrest
and fixing bail for his temporary liberty at P 1M in cash.
After he had surrendered his passport and posted the required cash bond, Jimenez
was granted provisional liberty.

MAIN ISSUE: W/N the Court committed GADALEJ in allowing Jimenez to post for bail
YES. (Please see sub-issues)

SUB-ISSUE/HELD 1: W/N the present petition was filed prematurely in the SCNO.
The SC can take cognizance of cases where exceptional circumstances are present.
The SC has original jurisdiction, concurrent with that of the RTC and CA, over
petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus,
and it entertains direct resort in cases where special and important reasons or
exceptional and compelling circumstances justify the same.
In the interest of justice and to settle once and for all the important issue of bail in
extradition proceedings, the SC deem it best to take cognizance of the present
case.
Such proceedings constitute a matter of first impression over which there is no
local jurisprudence to guide lower courts.

Five Postulates of Extradition


(Not sure how important this is, but just in case he asks)
The substantive issues raised in this case require an interpretation or construction
of the treaty and the law on extradition.
A cardinal rule in the interpretation of a treaty or a law is to ascertain and give
effect to its intent.
Since PD 1069 is intended as a guide for the implementation of extradition treaties
to which the Philippines is a signatory, understanding certain postulates of
extradition will aid us in properly deciding the issues raised here.

1.

Extradition Is a Major Instrument for the Suppression of Crime.


a. Through the facilitating of the arrest and the custodial transfer of a
fugitive from one state to the other.
b. Extradition 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.

2.
3.

The Requesting State Will Accord Due Process to the Accused


The Proceedings Are Sui Generis
a. It does not involve the determination of the guilt or innocence of an
accused.
b. Constitutional rights are only relevant to determine the guilt or
innocence of an accused cannot be invoked by an extraditee.
c. It is summary in nature.
d. The rules of evidence in an extradition proceeding allow admission of
evidence under less stringent standards.

e.
f.
g.

4.
5.

Quantum of evidence a fugitive may be ordered extradited upon


showing of the existence of a prima facie case.
Court may adjudge an individual extraditable but the President has the
final discretion to extradite him.
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.

Compliance Shall Be in Good Faith (pacta sunt servanda)


There Is an Underlying (presumption) Risk of Flight

SUBSTANTIVE ISSUES (If youre in a hurry, read the summation!!!)

SUB-ISSUE/HELD 2: W/N Respondent is Entitled to Notice and Hearing Before the


Issuance of a Warrant of Arrest? NO.
USA contends that the procedure adopted by the RTC --informing the accused, a
fugitive from justice, that an Extradition Petition has been filed against him, and
that petitioner is seeking his arrest -- gives him notice to escape and to avoid
extradition.
Jimenez argues that he should not be hurriedly and arbitrarily deprived of his
constitutional right to liberty without due process.
o That there is no specific law or rule setting forth the procedure prior to the
issuance of a warrant of arrest, after the petition for extradition has been filed
in court; ergo, the formulation of that procedure is within the discretion of the
presiding judge.
Both parties cite Section 6 of PD 1069 in support of their arguments. It states:
SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of
Notices.- (1) Immediately upon receipt of the petition, the presiding judge of
the court shall, as soon as practicable, summon the accused to appear and to
answer the petition on the day and hour fixed in the order. [H]e may issue a
warrant for the immediate arrest of the accused which may be served any
where within the Philippines if it appears to the presiding judge that the
immediate arrest and temporary detention of the accused will best serve the
ends of justice. Upon receipt of the answer, or should the accused after
having received the summons fail to answer within the time fixed, the
presiding judge shall hear the case or set another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest,
if issued, shall be promptly served each upon the accused and the attorney

having charge of the case. (Emphasis ours)

1. On the Basis of the Extradition Law


Hearing entails sending notices to the opposing parties, receiving facts and
arguments from them, and giving them time to prepare and present such facts and
arguments.
Arrest subsequent to a hearing can no longer be considered immediate.
By using the phrase if it appears, the law further conveys that accuracy is not as
important as speed at such early stage.
The court is expected merely to get a prima facie finding -- sufficient to make a
speedy initial determination as regards the arrest and detention of the accused.
It is evident that respondent judge could have already gotten an impression from
the records adequate for him to make an initial determination of whether the
accused was someone who should immediately be arrested in order to best
serve the ends of justice.
In point of fact, he actually concluded from these supporting documents that
probable cause did exist.
In connection with the matter of immediate arrest, however, the word hearing is
notably absent from the provision.
o Evidently, had the holding of a hearing at that stage been intended, the law
could have easily so provided.
o
It also bears emphasizing at this point that extradition proceedings are
summary in nature.
o The silence of the Law and the Treaty leans to the more reasonable
interpretation that there is no intention to punctuate with a hearing every
little step in the entire proceedings.
As argued by petitioner, sending to persons sought to be extradited a notice of the
request for their arrest and setting it for hearing at some future date would give
them ample opportunity to prepare and execute an escape.
Neither the Treaty nor the Law could have intended that consequence, for the very
purpose of both would have been defeated by the escape of the accused from the
requested state.

2. On the Basis of the Constitution


Even Section 2 of Article III of the Constitution does not require a notice or a
hearing before the issuance of a warrant of arrest.
To determine probable cause for the issuance of arrest warrants, the Constitution
itself requires only the examination -- under oath or affirmation -- of complainants
and the witnesses they may produce.

There is no requirement to notify and hear the accused before the issuance of
warrants of arrest.

SUB-ISSUE/HELD 3 (IMPT!!!): W/N Respondent Entitled to Bail? NO, unless he falls


under the exception.
Jimenez maintains that Art III Sec. 13 of the Constitution secures the right to bail of
all persons, including those sought to be extradited.
o Supposedly, the only exceptions are the ones charged with offenses
punishable with reclusion perpetua, when evidence of guilt is strong.
USA claims that there is no provision in the Philippine Constitution granting the
right to bail to a person who is the subject of an extradition request and arrest
warrant.

SC: Agree with USA.


The Consti provision on, as well as Section 4 of Rule 114 of the ROC, applies only
when a person has been arrested and detained for violation of Philippine criminal
laws.
o 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, unless his guilt be proved beyond reasonable
doubt.
o It follows that the constitutional provision on bail will not apply to a case
like extradition, where the presumption of innocence is not at issue.
His Right to due process is NOT violated.
o His detention prior to the conclusion of the extradition proceedings does not
amount to a violation of his right to due process.
o Jimenez will be given full opportunity to be heard subsequently, when the
extradition court hears the Petition for Extradition.
o It is also worth noting that before the US government requested the
extradition of respondent, proceedings had already been conducted in that
country.
But he left the jurisdiction of the requesting state before those
proceedings could be completed, which hindered the court from
continuing with the due processes prescribed under its laws.
His invocation of due process now has become hollow.
The denial of bail as a matter of course in extradition cases falls into place with and
gives life to Article 14[67] of the Treaty, since this practice would encourage the
accused to voluntarily surrender to the requesting state to cut short their detention
here.

Likewise, their detention pending the resolution of extradition proceedings would


fall into place with the emphasis of the Extradition Law on the summary nature of
extradition cases and the need for their speedy disposition.

Exceptions to the No Bail Rule


GR: bail is not a matter of right in extradition cases.
However, the SC believes that the right to due process is broad enough to include
the grant of basic fairness to extraditees.
E: 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
o (1) that, once granted bail, the applicant will not be a flight risk or a danger to
the community; and
o (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.
The exception 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.

Jimenez contends that there are special circumstances that are compelling enough for
the Court to grant his request for provisional release on bail.
(1) Alleged Disenfranchisement and (2) Anticipated Delay
o While his extradition was pending, Jimenez was elected as a member of the
House of Representatives.
o He claims that his detention will disenfranchise his Manila district of 600,000
residents.
o In People v. Jalosjos, the Court has already debunked the disenfranchisement
argument stating that the voters elected him with full awareness of the
limitations on his freedom of action.
o It must be noted that even before Jimenez ran for and won, it was already of
public knowledge that the United States was requesting his extradition.
o His constituents were or should have been prepared for the consequences of
the extradition case against their representative.
o Respondent Jimenez further contends that because the extradition
proceedings are lengthy, it would be unfair to confine him during the
pendency of the case.
o SC is not overruling the possibility that petitioner may, in bad faith, unduly
delay the proceedings but this is another matter that is not at issue in this case.
o Thus, any further discussion of this point would be merely anticipatory and

academic.

Not a Flight Risk?


o Jimenez further claims that he is not a flight risk.
o he stresses that he learned of the extradition request in June 1999; yet, he has
not fled the country.
o 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.

Summation (by the SC)


1.

2.
3.

4.

5.

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.
xxx
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. xxx
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.
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. xxx
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. xxx
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.

DISPOSITIVE: WHEREFORE, the Petition is GRANTED xxx The RTC of Manila is directed to
conduct the extradition proceedings before it, with all deliberate speed pursuant to the
spirit and the letter of our Extradition Treaty with the United States as well as our
Extradition Law

4. Govt of Hong Kong v Olalia [consti2 digest c/o


Charlemagne Chavez]
G.R. No. 153675, April 19, 2007
Petitioner: Govt of Hong Kong Special Administrative Region, represented by DOJ
Respondent: Olalia is the RTC judge that granted bail; Munoz is a prospective extraditee
Petition for Certiorari
SANDOVAL-GUTIERREZ, J.:
OhSHNAP: Juan Antonio Munoz was wanted in HK. He was arrested here in the
Philippines. He applied for bail which was initially denied but was granted by Judge
Olalia on reconsideration. A petition for certiorari was filed in the SC where the court

held that Judge Olalia did not err. Extradition is not a criminal proceeding but is an
administrative proceeding. Although the court in Puruganan ruled that bail only applies
to criminal proceeding, the decision was revised taking into consideration the various
treaty obligations of the Philippines in international law that uphold human rights.
Among the rights involved is the right to liberty. Although our extradition law does not
provide a grant for bail to an extraditee, it neither prohibits an application for bail.
Extradition proceeding is sui generis and partakes of an administrative nature. However,
extradition bears all the earmarks of a criminal proceeding. A potential extraditee may
be detained and arrested. While the Philippines must honor its extradition obligation to
HK, it should not diminish Munozs right to life, liberty, and due process which are
guaranteed not only by the constitution but also by the various international covenants
to which the Philippines is a party. Thus, Munoz is entitled to bail, provided that he
proves with clear and convincing evidence that he is not a flight risk. Case was
remanded to the trial court to see if there is clear and convincing evidence that Munoz
is not a flight risk.
FACTS:
An Agreement for the Surrender of Accused and Convicted Persons was entered
into by the Republic of the Philippines (hereinafter PHL) and then British Crown
Colony of Hong Kong (hereinafter HK) which took effect in 1997.
Private respondent Munoz was charged in HK for 3 counts of accepting an
advantage as agent and 7 counts of conspiracy to defraud. Warrants of arrest
were issued by HK court against Munoz in 1997 and 1999 and if convicted, faces jail
term of 7 to 14 years for each charge
Upon receipt of request for provisional arrest by PHL through the DOJ, the NBI filed
with the RTC an application for provisional arrest and the same was granted in Sept
23, 1999. On same date, NBI agents arrested and detained Munoz.
Initially, Munoz filed with the CA a petition questioning the validity of the order of
arrest in which the CA declared such as void. But, the SC reversed this and declared
the order of arrest valid. This decision became final and executor in April 2001.
Meanwhile, as early as Nov 22, 1999, HK has filed with the RTC of Manila a petition
for extradition of Munoz. In the same case, a petition for bail was filed by Munoz.
Judge Bernardo, Jr. (a.k.a Mr. NBA Fantasy) denied the petition for bail but upon
reconsideration, Judge Olalia granted bail subject to certain conditions on Oct. 30,
2001.
An urgent motion to vacate the order was denied by Judge Olalia, hence this instant
Petition.

o Petitioner HK contended that Judge Olalia committed GADAJEL and that there is
nothing in the constitution or statutory law providing that a potential extraditee
has a right to bail, the right being limited solely to criminal proceeding
o Private Respondent maintained that right to bail extends to prospective
extraditee and that extradition is a harsh process resulting in a prolonged
deprivation of liberty
ISSUES: (1) Whether the right to bail extends to a prospective extraditee (considering
that extradition is an administrative case and right to bail involves criminal cases).
HELD: YES, Case Dismissed
RATIO:
The court has previously ruled in Govt of USA v. Puraganan that the constitutional
provision on bail does not apply to extradition proceedings; it is available only in
criminal proceedings. The SC in that case reasoned:
o The use of word conviction in the constitution applies only to persons arrested
and detained for violation of Philippine criminal laws. Court does not render a
judgment of conviction in extradition
o The right to bail flows from the presumption of innocence in favour of every
accused before judgement. The presumption of innocence is not an issue in
extradition thus it follows that right to bail is not contemplated
HOWEVER, the court took note of the current trends in international law which
gives primacy on the worth of the individual person and the sanctity of human rights.
o There is growing importance of the individual in PIL
o Higher value is given to human rights in the international sphere
o There is corresponding duty of countries to observe these universal human rights
in treaty obligations
o There is the duty of the courts to balance the rights of the individual under our
constitution and the law on extradition on the other.
THUS, the court in light of the various international treaties re-examined the ruling
in Puragan.
o First, deprivation of liberty is not limited to criminal proceedings. Respondents in
admin cases such as deportation and quarantine have likewise been detained.
o Second, Philippine jurisprudence prior to Puragan has not limited the exercise to
bail to criminal proceedings only. There have been cases where right to bail was
granted in admin cases mostly deportation proceedings.
If bail can be granted in deportation cases, we see no justification why it should
not also be allowed in extradition cases.

o The court applied the Universal Declaration of Human Rights which the
constitution says is part of the law of the land
o Also, the right of an extraditee to apply for bail must be viewed in the light of
various treaty obligations of PHL. What is important is that the right to liberty
must not be impaired.
Extradition is the removal of an accused from PHL with the object of placing him at
the disposal of foreign authorities to enable the requesting state or govt to hold him
in connection with any criminal investigation directed against him or the execution
of a penalty imposed on him under penal or criminal law of the requesting state.
o It is a right of a foreign power created by a treaty
o It is NOT A CRIMINAL PROCEEDING even if the potential extraditee is a criminal
in another state
o IT IS SUI GENERIS tracing its existence on treaty obligation between states
It is neither a trial nor a civil action. It is merely administrative in character.
While ostensibly administrative, extradition bears all earmark of criminal process.
o Potential extraditee is subject to arrest, prolonged restraint of liberty, and forced
to transfer to the demanding state
o Extradition is characterized by (a) deprivation of liberty and (b) the means
employed to attain purpose of extradition is the machinery of criminal law
Records show that Munoz was arrested on Sept 23, 1999 and remained
incarcerated until Dec 20, 2001, a period of over 2 years without having been
convicted of any crime. This is a serious deprivation of his fundamental right to
liberty by any standard!
While the Philippines must honor its obligation under the extradition treaty, it
should not diminish a potential extraditees right to life, liberty and due process
which are guaranteed not only by the constitution but also by international
conventions to which the PHL is party thereto.
While our extradition law does not provide for the grant of bail to an extraditee,
neither is there a prohibition. Constitutional provision on due process however
guarantees this right.
o Since this is not a criminal proceeding where there is a presumption of innocence
and that in extradition proceedings, there is a presumption that an extraditee is
a fugitive from justice, Munoz (the prospective extraditee) has the burden of
proof of showing that he is not a flight risk and should be granted bail.
o An extradition proceeding being sui generis the standard of proof required is
clear and convincing evidence which is below proof beyond reasonable doubt
but above preponderance of evidence.
Thus Munoz must prove by clear and convincing evidence that he is not a flight risk
and will abide with all the orders and processes of extradition court.

WHEREFORE, case DISMISSED and REMANDED to trial court to determine if Munoz is


entitled to bail on the basis of clear and convincing evidence

(ii) IMMUNITY FROM JURISDICTION


5. Sanders v. Veridianio
TOPIC: Jurisdictional Immunity
G.R. No. L-46930
Petitioner: DALE SANDERS, AND A.S. MOREAU, JR
Respondent: HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court of First
Instance of Zambales, Olongapo City, ANTHONY M. ROSSI and RALPH L. WYERS
J. Cruz
Doctrine: Official acts of agents of another state(provided that they are granted
immunity) are covered by such priviledge; In order for a state to be sued it must consent
to it.
RRV:
Rossi and Wyers are game room attendants, they were regular employees but were
reverted to part time employees. Rossi and Wyers appealed such decision which was
granted and order a reinstatement of the two. Sanders wrote a letter to Moreau who
was the commanding officer of the Subic Naval Base, explaining his grievance to the
decision. Before a grievance meeting was commenced, a letter was sent, purportedly
from Moreau, ordered the reversal of the decision. Rossi and Wyers filed a case for
damages in the CFI. The issue is whether Sanders were acting in official capacity which
grants them immunity. The court ruled in favor or Sanders, it reasoned that the letters
written were within his official capacity. He was to report to his superior about
personnel under his supervision. Assuming arguendo that it was not, he had the right to
react to criticisms impugned directly upon him.
Facts:
o Sanders was, at the time the incident in question occurred, the special services
director of the U.S. Naval Station (NAVSTA) in Olongapo City, while Moreau
was the commanding officer of the Subic Naval Base.
o Respondents were both employed as gameroom attendants in the special
services department of the NAVSTA, the former having been hired in 1971 and
the latter in 1969. They were informed that they are now just part time

employees. They protested to the U.S. Department of Defense which ordered


their reinstatement to full-time status with back wages.
Sanders sent a letter to Moreau disagreed with this recommendation and
reported that Responders tend to alienate their co-workers and were difficult
to supervise.
Before the grievance hearing was was started, a letter purportedly coming
from Moreau as the commanding general of the U.S. Naval Station in Subic
Bay was sent to the Chief of Naval Personnel explaining the change of the
private respondent's employment status and requesting concurrence
therewith, but this was signed by Moore, by direction.
Respondents filed a case in the CFI for damages. Sanders and Moreau filed a
motion to dismiss arguing that the court has no jurisdiction because the said
acts were performed in the discharge of their duties.
The trial court ruled in favor of the respondent and ordered a writ of
preliminary attachment to the properties of Moreau. Hence this petition.

Issue:
Whether the petitioners were acting official capacities which merits them the grant of
jurisdictional immunity. YES
Ratio:
o

The mere allegation that a government functionary is being sued in his


personal capacity will not automatically remove him from the protection of
the law of public officers and, if appropriate, the doctrine of state immunity.
The mere invocation of official character will not suffice to insulate
him from suability and liability for an act imputed to him as a
personal tort committed without or in excess of his authority.
Baer v. Tizon, Syquia v. Almeda Lopez, United States of America v.
Ruiz, consistently held that the US has not consented to be sued and
the suit could not prosper because the acts complained of were
covered by the doctrine of state immunity
In the present case that the acts of the petitioners were performed by them in
the discharge of their official duties. Sanders, as director of the special services
department of NAVSTA, undoubtedly had supervision over its personnel,
including the private respondents, and had a hand in their employment, work
assignments, discipline, dismissal and other related matters.
It is not disputed that the letter Sanders had written was in fact a
reply to a request from his superior, the other petitioner, for more
information regarding the case of the private respondents.

Even in the absence of such request, he still was within his rights in
reacting to the hearing officer's criticismin effect a direct attack
against him-that Special Services was practicing "an autocratic
form of supervision.
o

Given the official character of the above-described letters, we have to


conclude that the petitioners were, legally speaking, being sued as officers of
the United States government
As they have acted on behalf of that government, and within the
scope of their authority, it is that government, and not the
petitioners personally, that is responsible for their acts.
There should be no question by now that such complaint cannot
prosper unless the government sought to be held ultimately liable
has given its consent to' be sued.
The SC , in a line of cases, upheld the doctrine of state immunity as
applicable not only to our own government but also to foreign states
sought to be subjected to the jurisdiction of our courts.
It would seem only proper for the courts of this country to refrain
from taking cognizance of this matter and to treat it as coming
under the internal administration of the said base.(Parties in this
case were Americans and Naval Base employees)

WHEREFORE, the petition is GRANTED. The challenged orders dated March 8,1977,
August 9,1977, and September 7, 1977, are SET ASIDE. The respondent court is directed
to DISMISS Civil Case No. 2077-O. Our Temporary restraining order of September
26,1977, is made PERMANENT. No costs.

action whatever or protest against the exercise of territorial rights by the


Netherlands over the Sangi Isles and their dependencies has been recorded.
The peaceful character of the display of Netherlands sovereignty for the entire
period to which the evidence concerning acts of display relates (1700-1906)
must be admitted.
There is moreover no evidence which would establish any act of display of
sovereignty over the island by Spain or another power, such as might counterbalance or annihilate the manifestations of Netherlands sovereignty.
The Netherlands title of sovereignty acquired by continuous and peaceful
display of state authority during a long period of time going probably back
beyond the year 1700, therefore holds good.

CHAPTER 3: JURISDICTION OF STATES


JURISDICTION OVER TERRITORY
A.

Title to Territory
1.

Island of Palmas Case (p. 1-6) (MT)

Facts:
st

Origin of dispute: the visit paid to the Island of Palmas on Jan 21 1906, by
general Leonard Wood who was then governor of the province of Moro.
US position: base their claim on the titles of discovery, of recognition by treaty
and of contiguity i.e. titles relating to acts or circumstances leading to the
acquisition of sovereignty; they have however not established the fact that
sovereignty so acquired was effectively displayed at any time.
Netherlands position: found their claim to sovereignty essentially on the title
of peaceful and continuous display of state authority over the island. Since this
title would in international law prevail over a title of acquisition of sovereignty
not followed by actual display of state authority, it is necessary to ascertain in
the first place, whether the contention of the Netherlands is sufficiently
established by evidence, and if so, for what period of time.
Issue: Who has sovereignty over the island Netherlands or USA?
Held and Ratio: Netherlands for the reasons below:
The islands of palmas is identical with an island designated by this or a similar
name , which has formed, at least since 1700, successively a part of two of the
native states of the island of Sangi.
These native states were from 1677 onwards connected with the East India
Company and thereby with the Netherlands, by contracts of suzerainty (form
of dependency), which conferred upon the suzerain such powers as would
justify his considering the vassal State as part of his territory.
Acts characteristic of state authority exercised either by the vassal state or by
the suzerain power in regard precisely to the Island of Palmas have been
established as occurring at different epochs between 1700 and 1898, as well as
in the period between 1898 and 1906.
The acts of indirect or direct display of the Netherlands sovereignty at Palmas,
th
th
especially in the 18 and 19 centuries are not numerous, and there are
considerable gaps in the evidence of continuous display.
It may suffice that such display existed in 1898, and had already existed as
continuous and peaceful before that date long enough to enable any power
who might have considered herself as possessing sovereignty over the island,
or having claim to sovereignty, to have according to local conditions, as a
reasonable possibility for ascertaining the existence of a state of things
contrary to her real or alleged rights.
It is not necessary that the display of sovereignty should be established as
having begun at a precise epoch; it suffices that it had existed at the critical
period preceding the year 1898.
Since the moment when the Spaniards, in withdrawing from the Moluccas in
1666, made express reservations as to the maintenance of their sovereign
rights, up to the contestation made by the US in 1906, no contestation or other

2.

Legal Status of Eastern Greenland (p. 6-12) (MT)

Facts:
July 10, 1931: the Norwegian Govt published a proclamation declaring that it
had proceeded to occupy certain territories in Eastern Greenland.
The Danish Govt contended that Eastern Greenland was subject to the
sovereignty of Denmark and on those grounds brought before the Permanent
Court of International Justice a suit against Norway.
th
th
In the course of the 19 century and the early years of the 20 century the
coasts of Greenland were entirely explored. For the purposes of the present
case, it is only necessary to note of 2 dates: in 1822 the Scottish whaler
Scoresby made the first landing by a European in the territory covered by the
Norwegian declaration of occupation and about 1900, thanks to the voyages of
the American Peary, the insular characted of Greenland was established. It is
admitted by the Norway that from the time of Scoresbys landing the East
Coast forms part of the known portion of Greenland.
1863: the Danish Govt granted to Mr. Tayler, an Englishman, an exclusive
concession for 30 yrs to enable him to establish on the East Coast of Greenland
stations for the purpose of trading with the natives, hunting, fishing or working
nay metalliferous or other mineral bearing mines there discovered or engaging
in any other business which he may consider to his advantage.this led to no
practical result.
Practice of Danish Govt in concluding bilateral commercial conventions or
when participating in multilateral conventions relating to economic
questionssuch as those concluded since 1921 under the auspices of the
League of Nationshas been to secure the insertion of a stipulation excepting
Greenland from the operation of the convention.
Norwegians actions: 1930; the Norwegian Govt conferred police powers on
certain Norwegian nationals for the inspection of the Norwegian hunting
stations in Eastern Greenland.
Norwegian Standpoint: the land is terra nullius meaning no one owns it.
Danish arguments: (you can use this in the ratio too) Denmark has claimed and
exercised sovereign rights over Greenland as a whole for a long time and has
obtained thereby a valid title to sovereignty. It is not necessary that
sovereignty over Greenland should have existed throughout the period during
which the Danish Govt maintains that it was being.
1

Issue: Who has sovereignty over Greenland?


Held and Ratio: Danish Govt.
Test (impt): a claim to sovereignty based not upon some particular act or title
such as a treaty of cession but merely upon continued display of authority,
involes two elements: intention and will to ask as sovereign and some actual
exercise or display of such authority.
Up to 1931 there was no claim by any power other than Denmark to the
sovereignty over Greenland.
No other power was putting forward any claim to territorial sovereignty in
Greenland, and in the absence of any competing claim the Kings pretentions
to be the sovereign of Greenland subsisted.
The conclusion to which the court is led is that, bearing in mind the absence of
any claim to sovereignty by another power and the arctic and inaccessible
character of the uncolonized parts of the country, the king of Denmark and
Norway displayed during the period from the founding of the colonies by Hans
Egede in 1721 up to 1814 his authority to an extent sufficient to give his
country a valid claim to sovereignty and that his rights over Greenland were
not limited to the colonized area
Counsel for Denmark have laid stress on the long series of conventions
mostly commercial in characterwhich have been concluded by Denmark and
in which, with the concurrence of the other contracting party, a stipulation has
been inserted to that effect that the convention shall not apply to Greenland.
Treaties may also be regarded as demonstrating sufficiently Denmarks will
and intention to exercise sovereignty over Greenland.
1925: legislation was enacted regulating the hunting and fishing and in the
same year Greenland was divided into provinces by a law which declared that
all commercial activity was reserved to the Danish state.
The character of there Danish acts is not altered by the protests or reserves
which were made by the Norwegian Govt.

3.

Western Sahara Case (p. 13-15) (MT)

Facts:
Brief Background: Morocco claimed that it had legal ties with Western Sahara
at the time of colonization of Spain in 1884.
Before going into issue the court needs to answer question 1: was Western
Sahara terra nullius(a territory belonging to no one)?
It shows that in the case of such territories the acquisition of sovereignty was
not generally considered as effected unilaterally through occupation of terra
nullius by original title but through agreements concluded with local rulers.
Such agreements with local rulers, whether or not considered as an actual
cession of the territory, were regarded as derivative roots of title, and not
original titles obtained by occupation of terra nullius.
Western Sahara was inhabited by peoples which if nomadic were socially and
politically organized in tribes and under chiefs competent to represent them.
Spain did not proceed on the basis that it was establishing its sovereignty on
terra nullius.

Moroccos claim: based on public display of sovereignty and uninterrupted and


uncontested for centuries.stretching back to the Arab conquest of North
America.
Issue: WON there were legal ties between Western Sahara and Morroco?
Held & Ratio: None.
Claims to ties of sovereignty with Western Sahara encounters certain
difficulties.
A claim to sovereignty based upon continued display of authority involves two
elements each of which must be shown to exist: the intention and will to act as
sovereign and some actual exercise or display of such authority.
The information before the court shows that the geographical unity of
Western Sahara with Morocco is somewhat debatable which also militates
against giving effect to the concept of contiguity. Even if the geographical
contiguity of Western Sahara with Morocco would be taken into account in the
present connection, it would only make the paucity of evidence of
unambiguous display of authority with respect to Western Sahara more
difficult to reconcile with Moroccos claim to immemorial possession.
The material and information presented to the Court show the existence at the
time of Spanish colonization of legal ties of allegiance between the Sultan of
Morocco and some of the tribes living in the territory of Western Sahara. They
equally show the existence of rights, including some rights relating to the land,
which constituted legal ties between the Mauritanian entity as understood by
the Court and the territory of Western Sahara.
Thus, the court has not found legal ties of such a nature as might affect the
application of resolution in the decolonization of Western Sahara and in
particular of the principle of self determination through the free and genuine
expression of the will of the peoples of the territory.

4.

SABAH article (p. 15a) (MT)

(not really a case so ill just summarize)


Sabah is situated in the northern part of the island of Borneo. It is bounded by
Brunei and Sarawak to the west and by Indonesian Kalimantan to the South.
The territory originally owed allegiance to the Sultan of Brunei but in 1704 the
land was ceded to the Sultan of Sulu.
In 1946, Sabah became a British Crown Colony.
1951: Philippine statute which emphasized that the establishment of a
Philippine Consulate in Singapore, with jurisdiction over North Borneo, did not
constitute a waiver of the claim.
In 1962, the heirs of the Sultan of Sulu formally transferred their claim to
Sabah to the Philippine Government.
1963, the Philippines and the UK held talks in London on the issue of the
Philippine claim to Sabah but did not arrive at a settlement. Meanwhile, Sabah
became a constituent part of the Federation of Malaysia. This development
was both challenged by the Philippines and Indonesia.
Philippines maintained that the predecessors of the Chartered Company of
British North Borneo were private lessees of the Sultan of Sulu and could not
2

have acquired dominion over the territory through the contract of 1878. The
Philippines also argued that the sovereignty of the sultan of sulu was not
extinguished by the unilateral act of Britain extending her protectorate over
the territory in 1888, nor because the territory was subject of an international
agreement between Spain, the US and Great Britain. Furthermore, the
Philippine government a satisfactory settlement of sabah question should
include a just and fair settlement of the proprietary claims of the heirs of the
Sultan of Sulu.
In August 1977, in the ASEAN heads of Government meeting, President Marcos
declared that the Philippines is taking definite steps to eliminate one of the
burdens of ASEANthe Philippine claim to Sabah.
Latest news in 1993: President Ramos and Prime Minister Mahathir reached an
understanding on normalizing the relations between the two countries despite
the Sabah questions. This understanding resulted in a surge in trade and
investment between the two countries. Active cooperation on Mindanao and
Sabah are being pursued by both countries through the Brunei Darussalam
Indonesia Malaysia Philippines East ASEAN Growth Area and bilateral
programs, such as cooperation on border crossing and patrol and assistance to
Muslim Filipinos and to Filipinos in Malaysia, more particularly in Sabah.

5.

Spratlys Article by Coquia (p. 15b) (MT)

(not really a case more two articles that I consolidated na lang kaya mej mahaba)
Introduction
A foreign policy to be set for the Philippines involves the national territory of
the Phils with vast potential for economic resources.
It involves the maintenance of peace with immediate neighbors. Such policy to
be valid must also be in accordance with the general principles of international
law.
Geographical setting
Surrounded by ten littoral states: China, Taiwan, Phils, Indonesia, Brunei,
Malaysia, Singapore, Thailand, Kampuchea and Vietnam.
The Paracels, a group of islands on the south east of China are claimed by
China and Vietnam. Some one hundred miles to the south of Paracels area
group of islands is called the Spratleys. Some of these are occupied by the
Philippines, Vietnam, Taiwan and China.
Nothing has been positively initiated to prevent unnecessary conflict until Jan
1990The first workshop: Managing Potential conflicts in the south china
sea in Bali. The objective was to elicit academic papers into some kind of
policy inputs to resolve the dispute.
Upon the suggestion of the Philippine participants the next workshop was held
in Bandung in 1991 attended by the representatives from the China, Taiwan
and Vietnam. A proposal was made by Indonesia with support of the
Philippines that an institutional mechanism be organized on an unofficial
status through which all issues can be ventilated periodically.
Each claimant state was given the opportunity to state the legal basis of their
territorial claims in the area. A joint statement was issued on July 1991 urging
the participants to recommend their respective governments to set aside in

the meantime territorial and jurisdictional claims and agree to explore areas of
cooperation.
Similar subjects were discussed in the third workshop held in Yogyakarta,
Indonesia on June 1992. The proposal of setting up an institutional mechanism
again failed to get a unanimous support. Even the suggestion to hold an official
conference was not favored.
It was during this workshop that the Chinese participants were confronted by
the Vietnamese participants on a law enacted on Feb 1992 by China declaring
its territorial waters and contiguous zone which eventually claimed sovereignty
over all the islands, waters, seabed and airspace stretching 12 nautical miles
from the coast of all the islands on the South China Sea. Under the said law,
foreign military ships must get approval from Beijing before entering China
waters.
ASEAN Reaction
The ASEAN council of foreign ministers, in their meeting in Manila in July
1992, issued a declaration that the disputes in the South China Sea must be
settled by peaceful means.
Claim of China
As early as the second century BC Chinese discoveries were claimed of the
Xisha and Nansha islands.
After the WW1, China was the only claimant of the Spratleys. The Chinese
th
claimed sovereignty over the Spratleys since the 13 century through
expeditions sent by the Yuan Govt in 1923.
The Chinese admit that there is no actual occupation and control of the totally
uninhabited islands. The Xisha and Nansha islands are very far away from the
mainland. One cannot expect to exercise in history actual occupation and
effective control over these islands. It was only on Feb 1992 when China
passed a law enclosing the Nansha islands within the territorial sea.
The Claim of Taiwan
The claim of Taiwan is the same as Chinas.
The Claim of Vietnam
The claim to the Paracels is primarily based on the state succession relying on
the dissolution of the French sovereignty in Indochina and on historical
grounds.
Upon the dissolution of its Indochina empire in 1954, France allegedly ceded
its control over the Paracels to Vietnam but retained its claim to the Sparetlys.
In 1959 and the later years, Vietnam continued to assert sovereignty over the
Paracels seizing fishing vessels of China in the area.
Vietnam also awarded oil explorations contracts to eight foreign companies in
the disputed area of the two island groups.
The Philippine Claim
Shortly after gaining independence from the US in 1946, the Philippines
asserted its claim to the Spratlys before the UN General Assembly.
On May 1956, Tomas Cloma, a Filipino navigator and his associates claimed
ownership by discovery and occupation of the territory identified as the
Freedom Land consisting of about 33 islands, cays, sandbars, and coral reefs on
the Spratlys.
3

A diplomatic note was sent by the Philippine Government to Taipei demanding


the withdrawal of a Chinese garrison on the island on the ground that the
Philippines has a legal title of the island.
Aside from the historical antecedents, Filipinos have domiciled peacefully on
the islands which led to a viable Filipino political, social and economic
community known as the Kalayaan Island Group. It is now a political
subdivision of the Province of Palawan island. Established residents of said
municipality have been registered as voters and participated in elections of
Philippine officials.
The Philippines had granted oil and hydrocarbon explorations to various
American firms within the Kalayaan island group.
The main legal basis of the Philippine claim over the Kalayaan island group is
that it is terra nullius followed by occupation and exercise of jurisdiction.
Claim of Malaysia
The area claimed by Malaysia overlapped the southern portion of the Kalayaan
Island Group. It was on this area that the 49 Filipino fishermen were
apprehended by Malaysian authorities 1988.
Value and importance of the islands on the South China Sea
Presumed huge oil deposits
Navigational and communication routes
Suggested foreign policy options
To pursue the Philippine claim by diplomatic negotiation through the ASEAN
To follow the initiative taken by Indonesia with the cooperation and support of
the CIDA in the workshops on managing potential conflicts in the south china
sea held in Indonesia
The suggestion of Professors Douglas Johnston and Mark Valencia, two
eminent scholars on the Law of the Sea, to organize an international authority
similar to the Treaty of Antarctic
A treaty establishing the Spratlys international authority would provide for
peaceful transit of all vessels through superjacent waters. The authority could
promote international cooperation in scientific research in cooperation with
relevant international organizations as provided in the UNCLOS.
Two factors to consider: the rigid position of China and Phil constitution art 12
par 2 because the kalayaan island group implies joint ownership.
Philippines option to resolve the Chinese expansion in the Spratlys
Regional arrangements under the ASEAN initiativeChina is not a member of
the ASEAN but is usually invited to the summit meetings.
The Philippines may also bring the matter to the attention of the UN security
council.
The difficulty with said option is the security council usually does not act unless
the situation actually endangers international peace and security of nations.
Assuming that the security council decides to take the case china can exercise
veto power as a permanent member of the security council.
The other option is to file the case in the ICJ. The creeping invasion of china
involves the international responsibility of a state and is also a question of
international law which are justiciable questions within the jurisdiction of the
ICJ. The problem with the ICJ is that both parties must agree to submit the case
to the court. The optional clause and reservations may be invoked by china.

The next option is to bring the matter to an arbitration body upon agreement
by both states.
The most feasible is to bring the case to the international tribunal of the law of
the sea. Recently china manifested its willingness to settle the issue applying
the provisions of the UN convention on the law of the sea. China is already a
state party to the convention.

6.

Claim to Kalayaan by Arizala (p.15c) (AC)

Basis of RP Claim:
x x x Uti Possidetis Juris and Occupation (p.7)
What is Uti Possidetis?
o It means literally, As you possess, you shall continue to possess.
(citing
Sovereignty
over
Certain
Frontier
Lands
Belgium/Netherlands)
What is its origin?
o The proceedings concerning the Award rendered by the King of Spain
in 1891 where it stated that: when Spanish colonies proclaimed their
independence, they adopted the principle of constitutional and
international law of which they gave the name uti possidetis juris of
1810 for the purpose of laying down the rule that the boundaries of
the newly established republics should be the frontiers of the Spanish
provinces which they were succeedingestablishing an absolute rule
that in law no territory of the former Spanish America was without
ownersThese territories, although not occupied in fact, were by
common agreement considered as being occupied in law by the new
republics from the very beginning.
ICJ in El Salvador Honduras Boundary Dispute:
o GR: TITLE > POSSESSION; As between the one possessing title (uti
possidetis) or one having possession (effective control or
administration), the one having title shall have preferential rights.
EX: IF territory unclear, TITLE < POSSESSION; BUT, when
the title does not indicate with exact precision the extent
of territory claimed, effective control could help in proving
ownership
ICJ in Palau case: one having effective control or occupation has sovereignty
over territory in the absence of clear title

B.

Airspace
1.

State Control of Airspace over the Territorial Sea and the Contiguous
Zone (p. 16-17) (RK)
th

Two conflicting theories of the 20 Century:


o Freedom of the Air
o National Sovereignty over the air
Paris Convention (Oct 13, 1919)
o Accepted the doctrine of national sovereignty over the air space
4

Article 1: every power has complete and exclusive


sovereignty
over
the
airspace
above
its
territoryunderstood asnational territoryand the
territorial waters adjacent thereto.
Chicago Convention 1944
o Same principle; contracting parties recognize that every state has
complete and exclusive sovereignty over the air space above its
territory.
o Territory of state shall be deemed to the the land areas and
territorial waters adjacent thereto..
Today however, there are some phases of sovereignty in the air space that still
remain obscure.
o Airspace over arctic region and territorial waters of state are difficult
problems.
o Chicago Convention had used the term air space without defining
it. Is sovereignty limited to areas upward where air is present?
o Do states have jurisdiction over areas where rockets fly?
Professor John Cobb Cooper suggests a change in terminology to include such
regions.
o Recommends the term Flight Space
Article 2 of Chicago convention likewise includes territorial waters adjacent to
land
o They refer to bodies of water that make up the territorial sphere of
validity of a state, where one state to the exclusion of other states
can carry out its coercive acts. They include the maritime belt and
inland waters.

2.

Convention on International Civil Aviation Signed at Chicago on Dec. 7,


1944 (p. 17-18) (RK)

(c) No state aircraft of a contracting State shall fly over the territory of another State or
land thereon without authorization by special agreement or otherwise, and in
accordance with the terms thereof.
(d) The contracting States undertake, when issuing regulations for their state aircraft,
that they will have due regard for the safety of navigation of civil aircraft.
Article 4 - Misuse of civil aviation
Each contracting State agrees not to use civil aviation for any purpose inconsistent with
the aims of this Convention.
Chapter II - Flight over territory of Contracting States
Article 5 - Right of non-scheduled flight
Each contracting State agrees that all aircraft of the other contracting States,
being aircraft not engaged in scheduled international air services shall have the right,
subject to the observance of the terms of this Convention, to make flights into or in
transit non-stop across its territory and to make stops for non-traffic purposes without
the necessity of obtaining prior permission, and subject to the right of the State flown
over to require landing. Each contracting State nevertheless reserves the right, for
reasons of safety of flight, to require aircraft desiring to proceed over regions which are
inaccessible or without adequate air navigation facilities to follow prescribed routes, or
to obtain special permission for such flights.
Such aircraft, if engaged in the carriage of passengers, cargo, or mail for
remuneration or hire on other than scheduled international air services, shall also,
subject to the provisions of Article 7, have the privilege of taking on or discharging
passengers, cargo, or mail, subject to the right of any State where such embarkation or
discharge takes place to impose such regulations, conditions or limitations as it may
consider desirable.

Part I - Air navigation


Chapter I - General Principles and Application of the Convention
Article 1 - Sovereignty
The contracting States recognize that every State has complete and exclusive
sovereignty over the airspace above its territory.
Article 2 - Territory
For the purposes of this Convention the territory of a State shall be deemed to be the
land areas and territorial waters adjacent thereto under the sovereignty, suzerainty,
protection or mandate of such State.
Article 3 - Civil and state aircraft
(a) This Convention shall be applicable only to civil aircraft, and shall not be applicable to
state aircraft.
(b) Aircraft used in military, customs and police services shall be deemed to be state
aircraft.

C.

International and Territorial Waters


1.

1982 Convention on the Law of the Sea (p. 18) (RK)

Article 2: Legal Stats of the territorial sea, of the air


space over the territorial sea, and of its bed and subsoil
1. The sovereignty of a coastal State extends, beyond its Land territory and
internal waters and, in the case of an archipelagic State, its archipelagic
waters, to an adjacent belt of seas, described as the territorial sea.
2. This sovereignty extends to the air space over the territorial sea as well as to
its bed and subsoil.
3. The sovereignty over the territorial seas is exercised subject to the Convention
and to other rules of international law.
Article 3: Breadth of territorial sea
Every State has the right to establish the breadth of its territorial seas up to a limit not
exceeding 12 nautical miles, measured from baselines determined in accordance with
this Convention.
5

2.

Fisheries Case, Judgment of Dec. 18, 1951, ICJ (p. 19-25) (RK)

TOPIC: Fishery Zone; Preferential Rights of Fishing in Adjacent Waters; Negotiations to


Delimit the Rights and Interests of States
TREATIES:
Exchange of Notes of 1961 between U.K. and Iceland regarding Icelands
fishery limits
Geneva Convention on the High Seas
1958 Resolution and 1960 joint amendment concerning preferential rights
Arrangement Relating to Fisheries in Waters Surrounding the Faroe Islandssigned in 1973 on behalf of Belgium, Denmark, France, Germany, Norway,
Poland, and the UK
Agreement on the Regulation of the Fishing of North-East Arctic (ArctoNorwegian) Cod signed in 1974 on behalf of the UK, Norway, and the Union
of Soviet Republics
FACTS:
The Government of Iceland promulgated Regulations in 1972, which
established a zone of exclusive fisheries jurisdiction extending to 50 nautical
miles from baselines around the coast of Iceland.
The 1958 Convention on the Territorial Sea and the Contiguous Zone did not
define the breadth of the territorial sea, but Article 24 of this Convention limits
the contiguous zone to 12 miles from the baseline from which the breadth of
the territorial sea is measured.
The question of the breadth of the territorial sea and that of the extent of the
coastal States fishery jurisdiction were referred to the Second Conference on
the Law of the Sea in 1960. Furthermore, the question of the extent of the
fisheries jurisdiction of the coastal State became gradually separated from the
notion of the territorial sea.
The 1960 Conference failed by one vote to adopt a text governing the two
questions of the breadth of the territorial sea and the extent of fishery rights.
Two concepts have crystallized as customary law from the general consensus
at the Conference:
o Fishery Zone the area in which a State may claim exclusive fishery
jurisdiction independently of its territorial sea; the extension of that
fishery zone up to a 12-mile limit from the baselines appears now to
be generally accepted.
o Preferential Rights of Fishing in Adjacent Waters in favour of the
coastal State in a situation of special dependence on its coastal
fisheries.
The concept of a 12-mile fishery zone has been accepted with regard to
Iceland in the substantive provisions of the 1961 Exchange of Notes, and the
United Kingdom has also applied the same fishery limits to its own coastal
waters since 1964. U.K. has also expressly recognized Icelands preferential
rights in the undisputed waters and at the same time has invoked its own
historic fishing rights, on the ground that reasonable regard must be had to
such traditional rights by the coastal State in accordance with the generally

recognized principles embodied in Article 2 of the Geneva Convention on the


High Seas Convention, which declares that the high seas being open to all
nations, no State may validly purport to subject any part of them to its
sovereignty and goes on to provide that freedom of the high seas comprises
freedom of navigation and freedom of fishing. The freedoms of the high seas
are however made subject to the consideration that they shall be exercised by
all States with reasonable regard to the interests of other States in their
exercise of the freedom of the high seas.
ISSUES:
1. Whether or not Iceland is entitled to claim preferential rights? YES
2. Whether or not it may unilaterally exclude the U.K. fishing vessels from all fishing
activity in the waters beyond the limits agreed to in the 1961 Exchange of Notes? NO
HELD/RATIO:
Essentially, the Court held that:
o Iceland is entitled to preferential rights
o However, its legislation in 1972 was illegal; Iceland was not entitled
unilaterally to exclude United Kingdom fishing vessels
o The two governments were under mutual obligations to negotiate
an equitable solution
o The preferential rights of Iceland and the established rights of the
U.K. as well as the interests of other States should be taken into
account in the negotiations.
There can be no doubt of the exceptional dependence of Iceland on its
fisheries. That exceptional dependence was explicitly recognized by the U.K. in
the Exchange of Notes of March 11, 1961.
The preferential rights of the coastal State come into play only at the moment
when an intensification in the exploitation of fishery resources makes it
imperative to introduce some system of catch-limitation and sharing of those
resources, to preserve the fish stocks in the interests of their rational and
economic exploitation. This situation appears in the present case.
The concept of preferential rights is not incompatible with the exclusion of all
fishing activities of other States. A coastal State entitled to preferential rights is
not free, unilaterally and according to its own uncontrolled discretion, to
determine the extent of those rights.
Accordingly, the fact that Iceland is entitled to claim preferential rights does
not justify its claim to unilaterally exclude U.K. fishing vessels from all fishing
activity in the waters.
The provisions of the Icelandic Regulations of 1972 and the manner of their
implementation disregard the fishing rights of UK. Icelands unilateral action
thus constitutes an infringement of Article 2 of the 1958 Geneva Convention
on the High Seas, which requires that all States, including coastal States, in
exercising their freedom of fishing, pay reasonable regard to the interests of
other States.
The most appropriate method for the solution of the dispute is negotiation. Its
objective should be the delimitation of the rights and interests of the Parties,
6

the preferential rights of the coastal State on the one hand, and the rights of
the other State (i.e. UK) on the other, to balance and regulate equitably
questions such as those of catch-limitation, share allocations and related
restrictions concerning areas closed to fishing, number and type of vessels
allowed and forms control of the agreed provisions. The obligation to
negotiate flows form the very nature of the respective rights of the Parties and
is in accordance with the provisions of the UN Charter concerning peaceful
settlement of disputes.

3.

1982 Convention on the Law of the Sea (p. 25-26) (RK)

Article10
Bays
1. This article relates only to bays the coasts of which belong to a single State.
2. For the purposes of this Convention, a bay is a well-marked indentation whose
penetration is in such proportion to the width of its mouth as to contain land-locked
waters and constitute more than a mere curvature of the coast. An indentation shall not,
however, be regarded as a bay unless its area is as large as, or larger than, that of the
semi-circle whose diameter is a line drawn across the mouth of that indentation.
3. For the purpose of measurement, the area of an indentation is that lying between the
low-water mark around the shore of the indentation and a line joining the low-water
mark of its natural entrance points. Where, because of the presence of islands, an
indentation has more than one mouth, the semi-circle shall be drawn on a line as long as
the sum total of the lengths of the lines across the different mouths. Islands within an
indentation shall be included as if they were part of the water area of the indentation.
4. If the distance between the low-water marks of the natural entrance points of a bay
does not exceed 24 nautical miles, a closing line may be drawn between these two lowwater marks, and the waters enclosed thereby shall be considered as internal waters.
5. Where the distance between the low-water marks of the natural entrance points of a
bay exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn
within the bay in such a manner as to enclose the maximum area of water that is
possible with a line of that length.
6. The foregoing provisions do not apply to so-called "historic" bays, or in any case
where the system of straight baselines provided for in article 7 is applied.
Article12
Roadsteads
Roadsteads which are normally used for the loading, unloading and anchoring of ships,
and which would otherwise be situated wholly or partly outside the outer limit of the
territorial sea, are included in the territorial sea.

Article15
Delimitation of the territorial sea between States
with opposite or adjacent coasts
Where the coasts of two States are opposite or adjacent to each other, neither of the
two States is entitled, failing agreement between them to the contrary, to extend its
territorial sea beyond the median line every point of which is equidistant from the
nearest points on the baselines from which the breadth of the territorial seas of each of
the two States is measured. The above provision does not apply, however, where it is
necessary by reason of historic title or other special circumstances to delimit the
territorial seas of the two States in a way which is at variance therewith.
SECTION 3. INNOCENT PASSAGE
Article45
Innocent passage
1. The regime of innocent passage, in accordance with Part II, section 3, shall apply in
straits used for international navigation:
(a) excluded from the application of the regime of transit
passage under article 38, paragraph 1; or
(b) between a part of the high seas or an exclusive
economic zone and the territorial sea of a foreign State.
2. There shall be no suspension of innocent passage through such straits.
Article89
Invalidity of claims of sovereignty over the high seas
No State may validly purport to subject any part of the high seas to its sovereignty.

4.

The Corfu Channel Case (p. 27-29) (RC)

Topic: Test for classification of a strait as a highway for international navigation; Safe
passage of vessels passing innocently
Treaties: Generally accepted principles of international law that states innocent passage
thru straits is a right recognized by intl law.
ICJ 1949 REP.4
Petitioner: United Kingdom of Britain
Respondent: Albania
ANTECEDENT FACTS:
Greece and Albania are disputing territory along the Corfu Channel (not really
discussed in case). Greek claims it because of historical and cultural
significance. Albania claims it using baselines as their basis (from what I
understood). Because of this Albania has been very uptight when it comes to
passage thru the Channel
May 1946, an Albanian battery fired at 2 British Cruisers (Orion and Superb).
Firing ceased when the cruisers were out of range. Luckily neither ship was
7

damaged. This incident lead to an exchange of diplomatic notes. The


conclusion of such exchange was: North Corfu Strait may now be used by
ships of your (UK) fleet, but only when essential and with armament in fore
and aft position. If coastal guns fire at ships passing thru the strait, ships
should fire back.
After the shooting incidents, Brit ships were discouraged from passing. No
ships passed thru that area until.
FACTS OF CASE:
October 1946, 2 cruisers (Maritius and Leander) and 2 destroyers (Saumarez
and Volage) leaving the port of Corfu were passing thru the Strait. Saumarez
hit a mine. Volage then proceeded to tow it, in the process it hit another mine.
Both ships sustained heavy damage but Volage had managed to get them both
back to the port of Corfu.
The main issue of the case was whether or not Albania was liable for the
damage and should compensate UK since it would have had knowledge of the
placement or was even responsible for the placement of such mines. But
Cande cut the case to only focus on the issue of
ISSUE/HELD:
W/N the Corfu Strait qualifies as a channel for international navigation as it
forms a route between to parts of the high seas? YES.
o This is important because if it is such a channel then vessels can pass
thru, as long as its innocent passage, without having to get prior
authorization from Albania.
RATIO:
Albania does not dispute that the North Corfu Channel is a strait in the
geographical sense, but it denies that this channel belongs to the class of
international highways trhu which a right of right exists on the grounds that it
is only of secondary importance and not even a necessary route between 2
parts of the high seas and that it is used almost exclusively for local traffic.
They claim that volume of traffic is most essential qualification
But is it the opinion of the Court that the decisive criterion is its geographical
situation as connecting 2 parts of the high seas and the fact of its being used
for international navigation. Nor can it be decisive that this straight is not a
necessary route since it links the Egean and Adriatic Seas. In regard to the
volume, it was shown that 2,884 ships, over the course of 1 year 9 months,
were registered with Albanian Customs in Corfu port as seeking passage. This is
very high and does not account for ships that did not pass thru Customs.
Further, UK has being using this route for 80 years.
DISPOSITIVE:
For these reasons the Court is unable to accept Albanian contention that the UK has
violated Albanian sovereignty by sending the warships through the straight without
having obtained previous authorization.

5.

Territorial Sea and Fishing Zone Act (p. 30-32) (RC)

Topic: definition of baseline, territorial sea and internal waters


Treaty: NONE
BASELINE
Straight lines joining the consecutive geographical coordinates of points determined by
the Governor in Council based on low tide elevations (which are naturally formed areas
of land that are surrounded by and above water at low tide but are submerged at high
tide)
TERRITORIAL SEA
Waters from the baseline to 12 nautical miles measured seaward and equidistant.
INTERNAL WATERS
Waters landward from the baseline
FISHING ZONE
Such areas adjacent to the Canadian coast as provided by the Governor in Council

6.

Fishing Zones of Canada (Zone 6) Order (p. 33) (RC)

***PLEASE READ P. 3-33. ITS TECHNICAL AND I CANT SUMMARIZE IT.

7.

Territorial Sea Geographical Coordinates Order (p. 33) (RC)

8.

Artic Waters and Canadian Sovereignty by McRae (p. 34-43) (RC)

Topic: drawing baselines for coastal and mid-ocean archipelagoes; effect of baselines on
sovereignty
Treaty: UNCLOS, Arctic Waters Pollution Prevention Act (Canadian legislation)
38 Intl J. 476 (1983)
(Its unclear who are parties. Not discussed in the materials)
SUMMARY OF ARTICLE:
Introduction:
Canada passed the Arctic Waters Pollution Prevention Act that imposes
sanctions on vessels passing thru those waters violating standards imposed by
Canada to protect the ecology. The US protested to such measures,
emphasizing questions on the extent of territorial sea, the exclusive economic
zone, passage thru international straits and the outer limit of continental shelf.
Article 234 of UNCLOS permits coastal states to adopt and enforce nondiscriminatory laws and regulations for the prevention, reduction and control
of marine pollution from vessels in ice-covered areas within the limits of the
exclusive economic zone. The Arctic Waters Act seeks to assert only the limited
jurisdiction required to achieve the specific purpose of environmental
protection, this is separate from the total bundle of jurisdiction that
constitutes sovereignty.
8

On the UNCLOS, specifically ARTICLE 234:


The Law of the Sea Convention consists of both a codification of existing rules
of intl law and progressive developments of new rules:
o Existing rules have the status of rules of intl law whether or not
the convention becomes a treaty in force (generally accepted
principles)
o Progressive Developments depends upon the convention to
become binding; Article 234 is one of these
What is problematic about this Article is the ambiguity of the allowable
exercise of jurisdiction over such ice-covered areas.
Also raised was the issue of whether Canada was claiming sovereignty over the
Arctic waters.
On Canadas claim over the Arctic waters
Under international law, a state exercises absolute jurisdiction over its
territorial waters subject only to the right of safe passage. This means that a
state is oblige to provide innocent passage to foreign ships and cannot impose
requirements that would deny or impair the right of innocent passage.
Territorial waters can be established thru:
o Historic title
This is based on SECTOR THEORY which isnt widely
accepted. According to the sector theory, Canadian
territory covers a sector formed by extending the existing
boundaries, sea and land, in the east and west to the North
Pole based on CONTIGUITY. But this is inadequate
o Waters lying behind the baselines
Traditionally in drawing baselines, you follow the low water
mark along the sinuosities (curves) of the coast, crossing
the mouths of rivers and bays that have relatively narrow
entrances. This also applies to islands that lie off the coast.
All waters behind this line are considered territorial waters.
BUT! The Fisheries Case (between Norway and UK) upheld
the validity of the straight baselines that do not follow the
sinuosities and were drawn from point to point on its coast
and to its offlying islands because of the particular
geography of Norway.
On the ramifications of the Fisheries Case
How far can the application of the exception granted to Norway go? And how
will this affect COASTAL ARCHIPELAGOS?
o COASTAL ARCHIPELAGO small islands lying off the mainland, as in
this case. The use of straight baselines for coastal archipelagos arose
from the Fisheries Case and was based on the relationship or closelink of the archipelago to the coastal mainland
o Versus MID-OCEAN ARCHIPELAGO what the Philippines is. The
straight baselines have been applied to mid-ocean archipelagos since

they form a single political and economic unit. The 1982 Law of the
Sea made straight baselines applicable to this kind of archipelago.
Canada is saying that is a Coastal Archipelago with the islands in the Northern
Passage/Arctic Waters
The close-link between the islands and mainland is being questioned because
of the area of the water separating them. But according to the Fisheries Case,
the close-link is to be liberally construed.
BUT THE MAIN CONCERN IS WHAT FOLLOWS
On the effect of allowing Canada to draw straight baselines
EXPANDS THE COASTAL STATES JURISDICTION OVER WHAT WOULD HAVE
BEEN HIGH SEAS
o This concern was rendered practically inutile with the advent of the
200-mile exclusive economic zone. Because of this only a small part
of the Canadian coastline is actually enhanced
WILL IMPEDE NAVIGATION BY ENHANCING THE SREA OF INTERNAL WATERS
AND THEREBY CLOSING OFF AREAS THRU WHICH OTHERWISE THERE WOULD
BE A RIGHT OF SAFE PASSAGE
o It is provided in the 1958 Convention on the Territorial Sea and
Contiguous Zone that where the use of straight baselines has the
effect of enclosing as internal waters areas previously regarded as
territorial seas or high seas, a right of innocent passage remains in
those waters. This also exists in the 1982 Law of the Sea and is taken
to represent a position of generally accepted in customary intl law.
o This isnt really a concern though because the waters involved have
never been use for international navigation because they are frozen
most of the time.
o However, practice could eventually change this if the passage is
going to used in the future. Until then Canada is still ok doing this

9.

The Northwest Passage in IL by Pharand (p. 44-52) (RC)

Topic: International Strait, Innocent passage


Treaty: Law of the Sea Conference
Definition of International Straight
GEOGRAPHIC ELEMENT
o Any narrow passage between land connecting two seas or large
bodies of water
o Not controlling
FUNCTIONAL ELEMENT OR USE
o Used of international navigation
o BRUEL TEST (made by Danish jurist, so only a suggestion)
# of ships passing, total tonnage, value of cargo, average
size of ships, # of Nations using
o ICJ test in North Corfu Channel Case
Gave importance to the geographic element.

Expounded that it was a useful route for international


maritime traffic as seen in # of flags/Nations using and #
of ships crossing (2,884)
The 1958 Law of the Sea codified this 1940 decision, giving
precedence to usage of the strait, hence the FUNCTIONAL
USE
Is the Northern Passage an International Strait?
GEOGRAPHIC ELEMENT
o It is squarely in the 12 mile territorial sea of Canada
o Joins 2 parts of the high seas
FUNCTIONAL ELEMENT/USE
o So far only 18 crossings were made, all of which were EXPERIMENTAL
and were done with the permission and consent of Canada.
o Based on geography, there is definitely a POTENTIAL functional use,
but there is as of yet, no actual use of the Northern Passage since it is
iced over
IT IS NOT AN INTERNATIONAL STRAIGHT
Is the Right of Innocen Passage Applicable?
Innocent passage applies to territorial seas. An exception would be newly
enclosed internal waters that were previously subject to right of innocent
passage.
Right of innocent passage may be suspended when it is for the protection of
nations
o Exception: immunity afforded to warships and submarines
submerged
Conclusions:
1. The Northwest Passage is a legal straight and the right of innocent passage
applies
2. It is not an international straight since it has never been used for international
navigation as such, right of innocent passage may be suspended
3. If it becomes an international straight, the right of innocent passage can no
longer be suspended
4. But Canada will retain the right to establish and enforce regulations for the
prevention of marine pollution

10. 1982 Convention on the Law of the Sea (p. 52a-b) (JG)

1.

Article 76
Definition of the Continental Shelf
The continental shelf of a coastal State
comprises the sea-bed and subsoil of the submarine areas that
extend beyond its territorial sea throughout the natural
prolongation of its land territory
o to the outer edge of the continental margin, or
o to a distance of 200 nautical miles from the baselines
from which the breadth of the territorial sea is
measured

2.
3.

4.

5.

6.

7.

8.

where the outer edge of the continental margin


does not extend up to that distance.
The continental shelf of a coastal State shall not extend beyond the limits
provided for in paragraphs 4 to 6.
The continental margin
comprises the submerged prolongation of the land mass of the
coastal State, and
consists of the sea-bed and subsoil of the shelf, the slope and the
rise.
It does not include the deep ocean floor with its oceanic ridges or the
subsoil thereof.
(a) The coastal State shall establish the outer edge of the continental margin
extending beyond 200 nautical miles from the baselines, by either:
(i)
a line delineated in accordance with paragraph 7 by reference to the
outermost fixed points at each of which the thickness of sedimentary
rocks is at least 1 per cent of the shortest distance from such point to
the foot of the continental slope; or
(ii)
a line delineated in accordance with paragraph 7 by reference to
fixed points not more than 60 nautical miles from the foot of the
continental slope.
(b) In the absence of evidence to the contrary, the foot of the continental
slope shall be determined as the point of maximum change in the gradient as
its base.
The fixed points comprising the line of the outer limits of the continental shelf
on the sea-bed, drawn in accordance with paragraph 4(a)(i) and (ii), either
shall not exceed 350 nautical miles from the baselines from which
the breadth of the territorial sea is measured, or
shall not exceed 100 nautical miles from the 2,500 metre isobaths,
which is a line connecting the depth of 2,500 metres.
Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer
limit of the continental shelf
shall not exceed 350 nautical miles from the baselines from which
the breadth of the territorial sea is measured.
This paragraph does not apply
to submarine elevations that are natural components of the
continental margin
o such as its plateau, rises, caps, banks, and spurs
The coastal State
shall delineate the outer limits of its continental shelf
o where that shelf extends beyond 200 nautical miles from
the baselines
o by straight lines not exceeding 60 nautical miles in length
connecting fixed points
defined by co-ordinates of latitude and longitude.
Information on the limits of the continental shelf beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured
shall be submitted by the coastal State to the Commission on the
Limits of the Continental Shelf set up under Annex II
10

o on the basis of equitable geographical representation.


The Commission
shall make recommendations to coastal States
o on matters related to the establishment of the outer limits
of their continental shelf.
The limits of the shelf
established by a coastal State on the basis of these
recommendations
o shall be final and binding.
9. The coastal State
shall deposit with the Secretary-General of the United Nations
o charts and relevant information
including geodetic data
permanently describing the outer limits of its
continental shelf.
The Secretary-General
shall give due publicity thereto.
10. The provisions of this article
are without prejudice to the question of delimitation of the
continental shelf between States with opposite or adjacent coasts.

JURISDICTION OVER ADJACENT MARITIME SEAS


A.

Continental Shelf
1.

North Sea Continental Shelf Case (p. 53-57) (JG)

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal
Republic of Germany v. Netherlands)
8 Intl. Leg. Mat. 340
1969, International Court of Justice
TOPIC: Jurisdiction Over Adjacent Maritime Seas; Continental Shelf
Petitioner: Federal Republic of Germany
Respondents: Denmark and Netherlands
FACTS: (copied from previous digest by RC)
Germany, Denmark and the Netherlands had made lateral line agreements
delimiting the North Sea continental shelves.
Denmark and the Netherlands said that the equidistant-special circumstances
principle in Article 6(2) of Geneva Convention applied. By applying this,
Germany will have a smaller portion.
Germany argued that the doctrine of just and equitable share applied.
ICJ ruled against Germany. But also stated that the equidistant rule was only
customary international law that was not crystallized by the Geneva
Convention.

ISSUE/HELD:
Whether or not the equidistant principle is necessary in the field of delimitation of the
accepted doctrine of the exclusive appurtenance of the continental shelf to the nearby
coastal State, and therefore having a priori character to juristic inevitability. - NO
N.B. a priori means relating to reasoning or knowledge that proceeds from theoretical
deduction
RATIO:
The doctrine of just and equitable share appears to be wholly inconsistent
with what the Court considers as the most fundamental of all the rules of law
relating to the continental shelf o that the rights of the coastal State in respect of the area of the
continental shelf that constitutes a natural prolongation of its land
territory into and under the sea exist ipso facto and ab initio, by
virtue of its sovereignty over the land, and as an extension of it in an
exercise of sovereign rights for the purpose of exploring the seabed
and exploiting its natural resources
o in short, there is an inherent right. In order to exercise it, no special
legal process has to be gone through.
o The right does not depend on its being exercised
It is exclusive in the sense that if the coastal State does
not choose to explore or exploit the areas of the shelf
appertaining to it, that is its own affair, but no one else
may also do it without its express consent.
The equidistant-special circumstances rule, as maintained by Denmark and the
Netherlands, should govern, because
o The use of this method is not in the nature of a merely conventional
obligation, but is part of a corpus of general international law, which
is binding on the Federal Republic of Germany automatically and
independently of any special assent, direct or indirect, given by the
latter.
o This involves both a positive law and a more fundamentalist aspect
As a matter of positive law, it is based on the work done by
the international legal bodies, on State practice, and on
the influence attributed to the Geneva Convention itself.
These various factors have cumulatively evidenced of the
opinion juris sive necessitates, requisite for the formation
of new rules of customary international law.
In its fundamentalist aspect, the view is based on the
natural law of the continental shelf, in the sense that the
equidistant principle is seen as a necessary expression in
the field of delimitation of the accepted doctrine of the
exclusive appurtenance of the continental shelf to the
nearby coastal State, and therefore as having an a priori
character to juristic inevitability.
The a priori argument starts from the position that the right of the coastal
State in its continental shelf area is based on its sovereignty over the land
domain, of which the shelf area is the natural prolongation into and under
11

the sea. The Court accepts that the coastal States rights exist ipso facto and ab
initio without any question of there having to be made a good claim to the
area concerned, or of any apportionment of the continental shelf between
different States.
Denmark and the Netherlands claim that the test of appurtenance must be
closer proximity, all those parts of the shelf being considered as appurtenant
to a particular coastal State which are (but only if they are) closer to it than
they are to any point on the coast of another State.
o However, the Court said that there seems to be no necessary and no
complete identity between the notions of adjacency and proximity;
and therefore the question of which parts of the continental shelf
adjacent to a coastline bordering more than one State fall within
the appurtenance of which of them, remains an open one, not to be
determined exclusively on the basis of proximity.
What confers the ipso jure title which international law attributes to the
coastal State in respect of its continental shelf, is the fact that the submarine
areas concerned may be deemed to be actually part of the territory over which
the coastal State already has dominion in the sense that although covered
with water, they are a prolongation or continuation of that territory, an
extension of it under the sea.
o Whenever a given submarine area does not constitute a natural
extension of the land territory of a coastal State, even though that
area may be closer to it than it I to the territory of any other State, it
cannot be regarded as appertaining to that State.
In the present case, although both sides relied on the prolongation principle
and regarded it as fundamental, they interpreted it quite differently. Both
interpretations appear to the Court to be incorrect
o Denmark and the Netherlands identified natural prolongation with
closest proximity and argued that it called for an equidistance line
o The Federal Republic seemed to think it implied the notion of just
and equitable share, although the connection is distinctly remote.
As regards equidistance, it clearly cannot be identified with natural
prolongation or extension, since the method would frequently cause areas
which are the natural prolongation or extension of the territory of one State to
be attributed to another, when the configuration of the latters coast makes
the equidistance line swing out laterally across the formers coastal front,
cutting it off from areas situated directly before that front.
o In the Norwegian Trough case, the Court held that the shelf areas in
the North Sea separated from the Norwegian coast by the 80-100
kilometers of the Trough cannot in any physical sense be said to be
adjacent to it, nor to be its natural prolongation.
The conclusion drawn by the Court is that the notion of equidistance as being
logically necessary, in the sense of being an inescapable a priori
accompaniment of basic continental shelf doctrine, is incorrect.
o The Court cannot accept the view that there is a rule of law ascribing
certain areas to a State as a matter of inherent and original right,
without also admitting the existence of some rule by which those
areas can be obligatorily delimited.

2.

1982 Convention on the Law of the Sea (p. 58) (JG)

Article 234
Ice-covered Areas
Coastal States
have the right to adopt and enforce non-discriminatory laws and regulations
o for the prevention, reduction and control of marine pollution
from vessels in ice-covered areas within the limits of the
exclusive economic zone
where particularly severe climatic conditions and the
presence of ice covering such areas for most of the year
create obstructions or exceptional hazards to navigation
and pollution of the marine environment could cause
major harm to or irreversible disturbance of the ecological
balance.
o Such laws and regulations shall have due regard to navigation and
the protection and preservation of the marine environment
based on the best available scientific evidence.

3.

Gulf Maine Case (p. 58(1)-(2)) (JG)

Gulf of Maine Case (Canada/U.S.A.)


1984 I.C.J. Rep. 246
TOPIC: Jurisdiction Over Adjacent Maritime Seas; Continental Shelf
Petitioner: Canada
Respondent: U.S.A.
FACTS:
Although both Parties had more disagreements, they agreed that:
o the rules and principles of international law should govern
maritime delimitations.
o They were at one in believing in the existence of a fundamental
norm of international law.
This norm must apply to any delimitation and a fortiori
(with stronger reason) to the drawing of a single maritime
boundary like that sought in the Gulf of Maine area.
According to Canadas definition, the fundamental norm requires that this
course be determined according to the applicable law, in conformity with
equitable principles, having regard to all relevant circumstances in order to
achieve an equitable result.
The United States stated explicitly that it also believed that delimitation should
be effected on the basis of the applicable principles and rules of international
law.
The common conclusion of the Parties as to the fundamental norm governing
the question of maritime delimitations seems to be closely related to
international case law and the Third Conference on the Law of the Sea.

12

ISSUE:
Whether or not the mere natural fact of adjacency of a shelf or zone produces legal
effect, which could be a basis for a title conferred on the State - NO

It signifies that greater importance must be attributed to elements


such as distance from the coast, which are common to both
concepts.
For Malta, the reference to distance in Article 76 of the 1982 Convention
represents a consecration of the distance principle.
For Libya, only the reference to natural prolongation corresponds to
customary international law.
It is the Courts view that the institution of the exclusive economic zone is
shown by the practice of States to have become a part of customary law.
Although the institutions of the continental shelf and the exclusive zone are
different and distinct, the rights which the exclusive economic zone entails
over the sea-bed of the zone are defined by reference to the regime laid down
for the continental shelf.
o Although there can be a continental shelf where there is no exclusive
economic zone, there cannot be an exclusive economic one without
a corresponding continental shelf.
It follows that, for juridical and practical reasons, the distance criterion must
now apply to the continental shelf as well as to the exclusive economic zone.
o This is not to suggest that the idea of natural prolongation is now
superseded by that of distance.
o What it does mean is that where the continental margin does not
extend as far as 200 miles from the shore, natural prolongation is in
part defined by distance from the shore, irrespective of the physical
nature of the intervening sea-bed and subsoil.
o The concepts of natural prolongation and distance are therefore not
opposed but complementary; and both remain essential elements in
the juridical concept of the continental shelf.
Thus, the Court is unable to accept the Libyan contention that distance from
the coast is not a relevant element for the decision of the present case.

HELD:
Canada concentrated its efforts on deducing these other rules of maritime
delimitation from the concept of geographic adjacency, since it was convinced
that this concept constituted the basis of the title of the coastal State to the
partial extension of its jurisdiction to the continental shelf and the waters of
which it formed the bed
Regarding adjacency, the Chamber acknowledges that in most cases this
concept can be related with the ability to express the link between a States
sovereignty and its sovereign rights to adjacent submerged land.
It should not be forgotten, however, that legal title to certain maritime or
submarine areas is always and exclusively the effect of a legal operation.
That boundary results from a rule of law, and not from any intrinsic merit in
the purely physical fact. In the Chambers opinion, it is therefore correct to say
that international law confers on the coastal State a legal title to an adjacent
continental shelf or to a maritime zone adjacent to its coasts; it would not be
correct to say that international law recognizes the title conferred on the State
by the adjacency of that shelf or that zone as if the mere natural fact of
adjacency produced legal consequences.
The Court in the North Sea Continental Shelf cases refused to imply any
fundamental or inherent rule, the ultimate effect of which would be to
prohibit any State (otherwise than by agreement) from exercising continental
shelf rights in respect of areas closer to the coast of another State.
o At that time, the Court stressed that the submarine areas
appertaining to the coastal State were not always those closest to its
coasts.

4.

Libya/Malta Continental Shelf Case (p. 58(2)-(3)) (JG)

Libya/Malta Continental Shelf Case


1985
I.C.J. Rep. 13
Topic: Jurisdiction Over Adjacent Maritime Seas; Continental Shelf
Petitioner: Libya
Respondent: Malta
The two institutions demonstrated by the 1982 Convention the continental
shelf and exclusive economic zone are linked together in modern law.
o Since the rights enjoyed by a State over its continental shelf would
also be possessed by it over the sea-bed and subsoil of any exclusive
economic zone which it might proclaim, one of the relevant
circumstances to be taken into account for the delimitation of the
continental shelf of a State is the legally permissible extent of the
exclusive economic zone appertaining to that same State.

5.

1982 Convention on the Law of Seas (p. 58(3)) (JG)


Article 234
Ice-covered Areas

Coastal States
have the right to adopt and enforce non-discriminatory laws and regulations
o for the prevention, reduction and control of marine pollution
from vessels in ice-covered areas within the limits of the
exclusive economic zone
where particularly severe climatic conditions and the
presence of ice covering such areas for most of the year
create obstructions or exceptional hazards to navigation
and pollution of the marine environment could cause
major harm to or irreversible disturbance of the ecological
balance.
o Such laws and regulations shall have due regard to navigation and
the protection and preservation of the marine environment
based on the best available scientific evidence.
13

B.

Exclusive Economic Zone


1.

Fisheries Jurisdiction (p. 59-75) (CG)

UK VS. ICELAND, 1974


Facts:
In 1948, the Althing (the Parliament of Iceland) passed a law entitled Law
concerning the Scientific Conservation of the Continental Shelf Fisheries containing
the following:
o Ministry of Fisheries shall issue regulations establishing explicitly bounded
conservation zones within the limits of the continental shelf of Iceland;
wherein all fisheries shall be subject to Icelandic rules and control
o Regulations promulgated shall be to the extent compatible with
agreements with other countries to which Iceland is or may become a
party
As explained by the Icelandic Government in its expose des motifs, such law was
passed because of Icelands dependency on fishing in the vicinity of its coasts, and
that measures to protect fisheries ought to be extended in proportion to the
growing efficiency of fishing equipment
In view of this, Iceland gave notice to its denunciation of the Anglo-Danish
Convention, which applied to fisheries in the waters around Iceland and established
a 3-mile limit for the exclusive right of fishery, under its own right of termination
with a 2-yr prior notice
In 1952, Iceland informed UK of its intention to issue new fishery regulations in
accordance with the 1948 Law, which provides for a fishery zone whose outer limit
was to be a line drawn 4 miles to seaward of straight baselines traced along the
outermost points of the coasts, islands and rocks and across the opening of bays,
and prohibiting all foreign fishing activities within that zone
The 1952 Fisheries Regulation met with protests from the UK
After various attempts to resolve the dispute, a modus vivendi was reached in 1956
under which there was to be no further extension of Icelands fishery limits pending
discussion by the UN GA
This discussion resulted in the convening at Geneva in 1948 of the first UNCLOS
The 1958 Conference also failed to reach an agreement, and instead adopted a
nd
resolution requesting the GA to study the advisability of convening a 2 Law of the
Sea Conference
After the conclusion of the 1958 Conference, Iceland made a preliminary
announcement of its intention to reserve the right of fishing within an area of 12
nautical miles from the baselines exclusively to Icelandic fishermen, and to extend
the fishing zone also by modification of the baselines
UK did not accept the validity of the new Regulations, and its fishing vessels
continued to fish inside the 12-mile limit, and thus disputes arose
The Althing issued a resolution stressing that the 12-mile limit asserted that
recognition should be obtained of Icelands right to the entire continental shelf area
in conformity with the policy adopted by the Law of 1948. It even said that it was
merely a further step in Icelands progress towards its objective of a fishery zone
extending over the whole of the continental shelf area
nd
After the 2 UNCLOS, Iceland and UK embarked on a series of negotiations

Proposals were submitted concerning preferential rights


A settlement was reached, which set out:
o UK would no longer object to a 12-mile fishery zone around Iceland
measured from the baselines accepted solely for the purpose of
delimitation of that zone
o For 3 years, Iceland would not object to UK vessels fishing within certain
specified areas and during certain stated months of the year
o During that 3-year period, however, UK vessels would not fish within the
outer 6 miles of the 12-mile zone in 7 specified areas
o Iceland will continue to work for the implementation of the Althing
Resolution of 1959, but shall give UK 6 months prior notice, and in case of
disputes, the matter shall be referred to the ICJ
In 1971, Iceland issued a policy statement which says that an extension of fisheries
st
jurisdiction to 50 nautical miles from base lines be effective not later than 1 of
Sept 1972
This led UK to emphasize that the Exchange of Notes was not open to unilateral
denunciation or termination. It said that such an extension of the fishery zone
around Iceland would have no basis in international law
UK expressed its readiness to negotiate any arrangements for the limitation of
catches that scientific evidence might show to be necessary, and in which any
preferential requirements of the coastal state resulting from its dependence on
fisheries would be recognized. It further proposed that pending the arrangement,
to limit its annual catch of demersal fish in Icelandic Waters to 185,000 tons
The Icelandic Government was not, however, prepared to negotiate further on this
basis
This prompted UK to submit the case before the Court. The Court issued provisional
measures for Iceland to refrain from taking any measures to enforce the
Regulations and for UK to limit the annual catch of its vessels
At first, Iceland refused to recognize the binding effect of the provisional remedies
of the Court because of its lack of jurisdiction over it. But the Court said that the
delimitation of sea areas has always an international aspect.
st
nd
The 1 and 2 UNCLOS failed to adopt a text governing the questions of the
breadth of territorial sea and the extent of fishery rights. But two concepts have
nd
crystallized through customary law after the 2 UNCLOS. First is the concept of
fishery zone, the area in which a State may claim exclusive fishery jurisdiction.
Second, the concept of preferential rights of fishing in adjacent waters in favor of
the coastal state.
Issues:
a. WON the claim by Iceland to be entitled to a zone of exclusive fisheries jurisdiction
extending 50 nautical miles from baselines around the coast of Iceland is without
foundation in international law and is invalid - YES
b. WON Iceland is entitled unilaterally to assert an exclusive fisheries jurisdiction
beyond the limits agreed to in the Exchange of Notes of 1961 - NO
c. WON Iceland is not entitled unilaterally to exclude British fishing vessels from the
area of the high seas beyond the limits agreed to in the Exchange of Notes in 1961
or unilaterally to impose restrictions on the activities of such vessels in that area NO
14

d.

WON Iceland and UK are under a duty to examine together in good faith the
existence and extent of that need and to negotiate for the establishment of such a
regime for the fisheries of the area - YES

Ruling:
Preferential Rights for the Coastal State
The coastal State had the faculty of claiming preferential fishing rights in any area of
the high seas adjacent to its exclusive fishing zone when it is scientifically
established that a special situation or condition and makes the exploitation of the
living resources of the high seas on that area of fundamental importance to the
economic development of the coastal State or the feeding of its population
Special conditions are defined as (1) the fisheries and the economic development of
the coastal state are so manifestly interrelated that, in consequence, that State is
greatly dependent on the living resources of the high seas; or (2) it becomes
necessary to limit the total catch of a stock or stocks of fish in such areas
This will be implemented by agreement between the States concerned, either
bilateral or multilateral, and, in case of disagreement, through the means for the
peaceful settlement of disputes provided for in Art 33 of the UN Charter
There can be no doubt of exceptional dependence of Iceland on its fisheries
The preferential rights of the coastal State come into play only at the moment when
an intensification in the exploitation of fishery resources makes it imperative to
introduce some System of catch-limitation and sharing of those resources, to
preserve the fish stocks in the interests of their rational and economic exploitation
Discussion of Issues (a) to (c)
The concept of preferential rights is not compatible with the exclusion of all fishing
activities of other States
A coastal State entitled to preferential rights is not free, unilaterally and according
to its own uncontrolled discretion, to determine the extent of those rights
It only implies a certain priority, but cannot imply the extinction of the concurrent
rights of other States, which are also engaged in fishing in the waters in question
The fact that Iceland is entitled to preferential rights does not suffice to justify its
claim unilaterally to exclude UKs fishing vessels from all activity in the waters
beyond the limits agreed to in the 1961 Exchange of Notes
UK also established their dependence on the Icelandic waters for centuries and
proved that the waters in question constitute the most important of the Applicants
distant-water fishing grounds for demersal species
A coastal States exceptional dependence on fisheries may relate not only to the
livelihood of its people but to its economic development as well
If UK would be deprived access to those waters, the UK vessels would be diverted at
economic levels to other fishing grounds in the North Atlantic and it would have
very serious adverse consequences
Even Iceland acknowledges the existence of the interests of UK since time
immemorial
Icelands unilateral action constitutes an infringement of the principle enshrined in
Article 2 of the 1958 Geneva Convention on the High Seas which requires that all
States, including coastal States, in exercising their freedom of fishing, pay
reasonable regard to the interests of other States

Its necessary that the preferential fishing rights of Iceland, as a State specially
dependent on coastal fisheries, be reconciled with the traditional fishing rights of
UK
The preferential rights of the coastal State and the established rights of other
States were considered as, in principle, continuing to co-exist
Preferential right is not an absolute one. It is limited according to the extent of its
special dependence on the fisheries and by its obligations to take account of the
rights of other States and the needs of conservation
Both parties have the obligation to keep under review the fishery resources in the
disputed waters and to examine together, the measures required for the
conservation and development, and equitable exploitation, of those resources,
taking into account any international agreement in force between them
Issue (d)
Most appropriate method for the solution of the dispute is clearly that of
negotiation
Its objective should be delimitation of the rights and interests of the parties, the
preferential rights of the coastal State and the rights of UK, to balance and regulate
equitably questions such as those of catch-limitation, share allocations and related
restrictions
It need detailed scientific knowledge of the fishing grounds
Negotiations are required in order to define or delimit the extent of those rights
It is not a matter of finding simply an equitable solution, but an equitable solution
derived from the applicable law

2.

1982 Convention on the Law of the Sea (p. 75) (JG)


Article 55
Specific legal regime of the exclusive economic zone

The exclusive economic zone is an area beyond and adjacent to the territorial sea,
subject to the specific legal regime established in this Part, under which the rights and
jurisdiction of the coastal State and the rights and freedoms of other States are governed
by the relevant provisions of this Convention.
Article 56
Rights, jurisdiction and duties of the coastal State in the exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the waters
superjacent to the seabed and of the seabed and its subsoil, and with regard to
other activities for the economic exploitation and exploration of the zone, such
as the production of energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention
with regard to:
15

(i) the establishment and use of artificial islands, installations and


structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;

cooperative arrangements, to furnish, upon the request of that State, information as to


whether it is proceeding to a State of the same region participating in such cooperative
arrangements and, if so, to indicate whether it complies with the port entry
requirements of that State. This article is without prejudice to the continued exercise by
a vessel of its right of innocent passage or to the application of article 25, paragraph 2.

(c) other rights and duties provided for in this Convention.


2. In exercising its rights and performing its duties under this Convention in the exclusive
economic zone, the coastal State shall have due regard to the rights and duties of other
States and shall act in a manner compatible with the provisions of this Convention.
3. The rights set out in this article with respect to the seabed and subsoil shall be
exercised in accordance with Part VI.
Article 57
Breadth of the exclusive economic zone
The exclusive economic zone shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured.

3.

1982 Convention on the Law of the Sea (p. 93-94) (JG


Article 211
Pollution from vessels

1.
States, acting through the competent international organization or general
diplomatic conference, shall establish international rules and standards to prevent,
reduce and control pollution of the marine environment from vessels and promote the
adoption, in the same manner, wherever appropriate, of routeing systems designed to
minimize the threat of accidents which might cause pollution of the marine
environment, including the coastline, and pollution damage to the related interests of
coastal States. Such rules and standards shall, in the same manner, be re-examined from
time to time as necessary.
2.
States shall adopt laws and regulations for the prevention, reduction and
control of pollution of the marine environment from vessels flying their flag or of their
registry. Such laws and regulations shall at least have the same effect as that of generally
accepted international rules and standards established through the competent
international organization or general diplomatic conference.
3.
States which establish particular requirements for the prevention, reduction
and control of pollution of the marine environment as a condition for the entry of
foreign vessels into their ports or internal waters or for a call at their off-shore terminals
shall give due publicity to such requirements and shall communicate them to the
competent international organization. Whenever such requirements are established in
identical form by two or more coastal States in an endeavour to harmonize policy, the
communication shall indicate which States are participating in such cooperative
arrangements. Every State shall require the master of a vessel flying its flag or of its
registry, when navigating within the territorial sea of a State participating in such

4.
Coastal States may, in the exercise of their sovereignty within their territorial
sea, adopt laws and regulations for the prevention, reduction and control of marine
pollution from foreign vessels, including vessels exercising the right of innocent passage.
Such laws and regulations shall, in accordance with Part II, section 3, not hamper
innocent passage of foreign vessels.
5.
Coastal States, for the purpose of enforcement as provided for in section 6,
may in respect of their exclusive economic zones adopt laws and regulations for the
prevention, reduction and control of pollution from vessels conforming to and giving
effect to generally accepted international rules and standards established through the
competent international organization or general diplomatic conference.
6. (a) Where the international rules and standards referred to in paragraph 1 are
inadequate to meet special circumstances and coastal States have reasonable grounds
for believing that a particular, clearly defined area of their respective exclusive economic
zones is an area where the adoption of special mandatory measures for the prevention
of pollution from vessels is required for recognized technical reasons in relation to its
oceanographical and ecological conditions, as well as its utilization or the protection of
its resources and the particular character of its traffic, the coastal States, after
appropriate consultations through the competent international organization with any
other States concerned, may, for that area, direct a communication to that organization,
submitting scientific and technical evidence in support and information on necessary
reception facilities. Within 12 months after receiving such a communication, the
organization shall determine whether the conditions in that area correspond to the
requirements set out above. If the organization so determines, the coastal States may,
for that area, adopt laws and regulations for the prevention, reduction and control of
pollution from vessels implementing such international rules and standards or
navigational practices as are made applicable, through the organization, for special
areas. These laws and regulations shall not become applicable to foreign vessels until 15
months after the submission of the communication to the organization.
(b) The coastal States shall publish the limits of any such particular, clearly defined area.
(c) If the coastal States intend to adopt additional laws and regulations for the same area
for the prevention, reduction and control of pollution from vessels, they shall, when
submitting the aforesaid communication, at the same time notify the organization
thereof. Such additional laws and regulations may relate to discharges or navigational
practices but shall not require foreign vessels to observe design, construction, manning
or equipment standards other than generally accepted international rules and standards;
they shall become applicable to foreign vessels 15 months after the submission of the
communication to the organization, provided that the organization agrees within 12
months after the submission of the communication.
16

7.
The international rules and standards referred to in this article should include
inter alia those relating to prompt notification to coastal States, whose coastline or
related interests may be affected by incidents, including maritime casualties, which
involve discharges or probability of discharges.

Demons was sentenced with 80 days of imprisonment and a fine of


72 pounds
o Hassan Beys was sentenced with a more severe penalty (not
specified).
o Note: the decision was not yet final and executory.
The French Government protested against the arrest of Lt. Demons or had a
view that the case should be transferred to the French Courts.
As a result, the parties opted to submit the matter to the ICJ for resolution.
France now contends that Turkey has no jurisdiction to try the case.
o Further, it argues that breaches of navigation regulations fall
exclusively within the jurisdiction of the State under whose flag the
vessel sails (so dapat daw sa France).

Article123
Cooperation of States bordering enclosed or semi-enclosed seas
States bordering an enclosed or semi-enclosed sea should cooperate with each other in
the exercise of their rights and in the performance of their duties under this Convention.
To this end they shall endeavour, directly or through an appropriate regional
organization:
(a) to coordinate the management, conservation, exploration and exploitation of the
living resources of the sea;
(b) to coordinate the implementation of their rights and duties with respect to the
protection and preservation of the marine environment;
(c) to coordinate their scientific research policies and undertake where appropriate joint
programmes of scientific research in the area;
(d) to invite, as appropriate, other interested States or international organizations to
cooperate with them in furtherance of the provisions of this article.

JURISDICTION OVER PERSONS AND ECONOMIC ACTIVITY


A.

Criminal Jurisdiction
1.

The SS Lotus Case (p. 95-105) (RL)

TOPIC: Jurisdiction over crimes that occurred in High Seas


1920
Petitioner: French Government
Respondents: Turkish Government
FACTS:
Before 12mn of Aug. 2, 1926, a collision occurred between the French steamer
LOTUS on its way to Constantinople and the Turkish collier BOS-KOURT.
The latter ship was cut into two, sank and 8 Turkish Nationals on board
perished.
The survivors were rescued and the Lotus proceeded to its destination
(Constantinople, Turkey).
Upon arrival, Lieutenant Demons (of Lotus) and Capt. Hassan Bey (of BosKourt), who were both the officers of the watch of their respective ships at the
time of the collision, were arrested and tried for, and subsequently convicted
of involuntary manslaughter. (all of these were done in Turkey, invoking the
Turkish law)

ISSUES/HELD: W/N Turkey has jurisdiction to try the criminal caseYES, Turkey has
jurisdiction. There is nothing in IL that prohibits Turkey from assuming jurisdiction to
try the case.
RATIO:
France claims that there is a need for Turkey to point to some title to
jurisdiction recognized by IL in favor of the latter. Turkey, on the other hand,
argues that Art. 15 of the Convention of Lausanne allows it jurisdiction
whenever such jurisdiction does not come into conflict with a principle of IL.
o The ICJ agrees with Turkey.
IL imposes a restriction upon a State to exercise its power in any form in the
territory of another State if there is no permissive rule, which would otherwise
allow it to do so.
o This means that jurisdiction is territorial and that it cannot be
exercised by a State outside its territory.
o However, it does not follow that IL prohibits a State from exercising
jurisdiction in its own territory, in respect of any case which relates
to acts which have taken abroad, and in which it cannot rely on
some permissive rule of IL.
o As such, if there is no prohibitive rule that exists, States have the
discretion to try such cases.
o Turkey need not prove to France that there is a principle of IL that
exists, which would allow it to exercise jurisdiction over the matter.
Further, while it is true thatapart from certain special cases which are
defined by ILvessels on the high seas are subject to no authority except
that of the States whose flag they fly, it does not follow that a State can
never on its own territory exercise jurisdiction over acts which have occurred
on board a foreign ship on high seas.
o What occurs on board a vessel on the high seas must be regarded as
if it occurred on the territory of the State whose flag the ship flies.
o If therefore, a guilty act committed on the high seas produces its
effects on a vessel flying another flag or in a foreign territory, the
same principles must be applied as if the territories of two different
states were concerned.
17

However, there is no rule of IL in regard to collision cases to the


effect that criminal proceedings are exclusively w/in the jurisdiction
of the State whose flag is flown.
The offence for which Lt. Demons appears to have been prosecuted was an act
having its origin on board the Lotus, while the effects made themselves felt on
board the Boz-Kourt.
o These two elements are, legally, entirely inseparable, so much so
that their separation renders the offence non-existent.
o Hence, it is but natural that either country should be able to exercise
jurisdiction and to do so in respect of the whole.
o Turkey and France have concurrent jurisdiction over the case.

2.

In this case, the crimes dealt with are not crimes under Israel law alone, but
are in essence offences against the law of nations.
The case also reiterated that the UNGA has already passed a resolution
declaring genocide to be a crime against the law of nations, and has been
consistently reaffirmed by the UN.
As such, one who commits genocide, which is a crime against the law of
nations, becomes a hostis humani generis (enemy to all mankind) and places
himself beyond the protection of any state.
It follows then that under the principles of IL, the jurisdiction to try such
crimes is universal.
Hence, Israel has the jurisdiction to try Eichmann for the crime he has
committed.

The Attorney General of Israel v. Eichmann (p, 106-110) (RL)

TOPIC: Genocide as a crime against the law of nations; Hostis Humani Generis; Universal
jurisdiction
1962
Petitioner: Government of Israel through its Atty. General
Respondent: Eichmann
FACTS: (Not in McRae)
Eichmann, a high-ranking general of Hitler, played a central role in the
persecution of the Jews in WWII.
He escaped to Argentina after the war and was abducted by Israeli agents.
He was then tried before a court in Israel for the crimes he allegedly
committed, particularly that of genocide.
Counsel of Eichmann now assails the jurisdiction of the Israeli Court on the
ground that there was no wrong done to the State of Israel.
ISSUES/HELD: W/N Israel has jurisdiction to try the case even if the crime was
committed elsewhere?YES. The jurisdiction to try crimes under IL is universal.
RATIO:
(Note: The excerpt in McRae is more of the development on how genocide was
considered as a crime under IL, which gave a universal jurisdiction to States to try such
cases)
Grotis (Father of IL) raised the question of ones right to punish.
o It is the moral duty of every state to enforce the natural right to
punish, possessed by victims of the crime whoever they may be,
against criminal whose acts have violated in extreme form the law
of nature or the law of nations.
o This laid the foundations for the future definition of the crime
against humanity as a crime under the law of nations and to
universal jurisdiction in such crimes.
Hyde (another author) said that: in order to justify the criminal prosecution by
a State of an alien on account of an act committed and consummated by him
in a place outside of its territory it needs to be established that there is a
close and definite connection between the act and the prosecutor on which is
commonly acknowledged to excuse the exercise of jurisdiction.

3.

Princeton Principles on Universal Jurisdiction (p. 154a) (NO)

Principle 1 -- Fundamentals of Universal Jurisdiction


1. For purposes of these Principles, universal jurisdiction is criminal jurisdiction based
solely on the nature of the crime, without regard to where the crime was committed,
the nationality of the alleged or convicted perpetrator, the nationality of the victim, or
any other connection to the state exercising such jurisdiction.
2. May be exercised by a competent and ordinary judicial body of any state in order to
try a person duly accused of committing serious crimes under international law as
specified in Principle 2(1).
3. A state may rely on this principle as basis for extradition of a person accused or
convicted of committing a serious crime under international law specified in Principle
2(1), provided that it has established a prima facie case of the person's guilt and it will be
tried or the punishment carried out in accordance with international norms and
standards.
4. In exercising or in relying upon universal jurisdiction as a basis for seeking extradition,
a state and its judicial organs shall observe international due process norms including
but not limited to those involving the rights of the accused and victims, the fairness of
the proceedings, and the independence and impartiality of the judiciary (hereinafter
referred to as "international due process norms").

Principle 2 -- Serious Crimes Under International Law


1. For purposes of these Principles, serious crimes under international law include: (1)
piracy; (2) slavery; (3) war crimes; (4) crimes against peace; (5) crimes against humanity;
(6) genocide; and (7) torture.
2. Without prejudice to the application of universal jurisdiction to other crimes under
international law.
18

Principle 3 -- Reliance on Universal Jurisdiction in the Absence of National Legislation

(b) the place of commission of the crime;

With respect to serious crimes under international law as specified in Principle 2(1),
national judicial organs may rely on universal jurisdiction even if their national legislation
does not specifically provide for it.

(c) the nationality connection of the alleged perpetrator to the requesting


state;
(d) the nationality connection of the victim to the requesting state;

Principle 4 -- Obligation to Support Accountability


1. A state shall comply with all international obligations that are applicable to:
prosecuting or extraditing persons in accordance with a legal process that complies with
international due process norms, providing other states investigating or prosecuting, and
under-taking such other necessary and appropriate measures as are consistent with
international norms and standards.

(e) any other connection between the requesting state and the alleged
perpetrator, the crime, or the victim;
(f) the likelihood, good faith, and effectiveness of the prosecution in
the requesting state;

2. A state, in the exercise of universal jurisdiction, may, for purposes of prosecution, seek
judicial assistance to obtain evidence from another state, provided that the requesting
state has a good faith basis and that the evidence sought will be used in accordance with
international due process norms.

(g) the fairness and impartiality of the proceedings in the requesting state;

Principle 5 -- Immunities

(i) the interests of justice.

With respect to serious crimes under international law, the official position of any
accused person, whether as head of state or government or as a responsible
government official, shall not relieve such person of criminal responsibility nor mitigate
punishment.
Principle 6 -- Statutes of Limitations
Statutes of limitations or other forms of prescription shall not apply to aerious crimes
specified in Principle 2(1).
Principle 7 -- Amnesties
1. Amnesties are generally inconsistent with the obligation of states to provide
accountability for crimes specified in Principle in 2(1).
2. The exercise of universal jurisdiction with respect to serious crimes under
international law as specified in Principle 2(1) shall not be precluded by amnesties which
are incompatible with the international legal obligations of the granting state.
Principle 8 -- Resolution of Competing National Jurisdictions
Where more than one state has or may assert jurisdiction over a person and where the
state that has custody of the person has no basis for jurisdiction other than the principle
of universality, that state or its judicial organs shall, in deciding whether to prosecute or
extradite, base their decision on an aggregate balance of the following criteria:
(a) multilateral or bilateral treaty obligations;

(h) convenience to the parties and witnesses, as well as the availability of


evidence in the requesting state; and

Principle 9 -- Non Bis In Idem/ Double Jeopardy


1. In the exercise of universal jurisdiction, a state shall ensure that a person who is
subject to criminal proceedings shall not be exposed to multiple prosecutions or
punishment for the same criminal conduct where the prior criminal proceedings or other
accountability proceedings have been conducted in good faith and in accordance with
international norms and standards.
Sham prosecutions or derisory punishment resulting from a conviction or other
accountability proceedings shall not be recognized as falling within the scope of this
Principle.
2. A state shall recognize the validity of a proper exercise of universal jurisdiction by
another state and shall recognize the final judgment of a competent and ordinary
national judicial body.
3. Any person tried or convicted by a state exercising universal jurisdiction for serious
crimes specified in Principle 2(1) shall have the right and legal standing to raise before
any national or international judicial body the claim of non bis in idem in opposition to
any further criminal proceedings.
Principle 10 -- Grounds for Refusal of Extradition
1. A state or its judicial organs shall refuse to entertain a request for extradition if the
person sought is likely to face a death penalty sentence or to be subjected to torture or
any other cruel, degrading, or inhuman punishment or treatment, or if it is likely that the
person sought will be subjected to sham proceedings in which international due process
norms will be violated and no satisfactory assurances to the contrary are provided.
19

It must noted that there are considerable variations in the extradition


arrangements with various countries.
o These treaties between countries provide for the more formal
procedural requirements.
o However, these treaties have been by-passed nowadays to conform
with less formal style of present day diplomacy.
o Some of the non-formal aspects of extradition procedures have been
ledt to be worked out on a practical levelgiven that time is of the
essence in such cases and the workings of the treaties should not be
impaired by fixed or cumbersome rules.
The judicial proceedings for determining whether the evidence to apprehend
or surrender a fugitive is sufficient are governed by the domestic law of each
country, which may vary from state to state.

2. A state which refuses to extradite on the basis of this Principle shall, when permitted
by international law, prosecute the individual accused of a serious crime or extradite
such person to another state where this can be done without exposing him or her to the
risks referred to in paragraph 1.
Principle 11 -- Adoption of National Legislation
A state shall, where necessary, enact national legislation to enable the exercise of
universal jurisdiction and the enforcement of these Principles.
Principle 12 -- Inclusion of Universal Jurisdiction in Future Treaties
In all future treaties, and in protocols, concerned with serious crimes under international
law, states shall include provisions for universal jurisdiction.
Principle 13 -- Strengthening Accountability and Universal Jurisdiction
1. National judicial organs shall construe national law in a manner that is consistent with
these Principles.
2. Nothing in these Principles shall be construed to limit the rights and obligations of a
state to prevent or punish, by lawful means recognized under international law, the
commission of crimes under international law.
3. These Principles shall not be construed as limiting the continued development of
universal jurisdiction in international law.
Principle 14 -- Settlement of Disputes
1. Consistent with international law and the Charter of the United Nations, states should
settle their disputes arising out of the exercise of universal jurisdiction by all available
means of peaceful settlement of disputes and in particular by submitting the dispute to
the International Court of Justice.
2. Pending the determination of the issue in dispute, a state seeking to exercise universal
jurisdiction shall not detain the accused person nor seek to have that person detained by
another state unless there is a reasonable risk of flight and no other reasonable means
can be found to ensure that person's eventual appearance before the judicial organs of
the state seeking to exercise its jurisdiction.

4.

Extradition To and From Canada (p. 111) (RL)

G.V. La Forest and Sharon Williams (1977)


Test of extradition invokes two questions:
1. W/N there is an extradition treaty with that country and
2. Whether the crime is listed in the treaty.

5.

Extradition Act (p. 112) (RL)

(I dont think this is relevant. This is the old law eh. Nonetheless)
It talks about the procedure on how requisition for the surrender of a fugitive
criminal of a foreign state, who is believed to be in Canada, should be made; as
well as the procedure on how a Canadian fugitive may be extradited.
o The Ministry of Justice is the key figure to whom the requisition must
be addressed.
o He determines the offence and the proceedings that should be taken
to try the fugitive, and may refuse to order for the surrender of said
fugitive.
o If there is an existing extradition arrangement between Her Majesty
and another State, and the crime is not listed, it is still within the
authority of the Minister to issue a warrant for the surrender to the
other State any offender from that other State.

6.

Treaty on Extradition between Canada and the US (p. 113-114) (RL)

(Only included the pertinent provisions)


Offenses should be punishable by both US and Canada by a term of
imprisonment exceeding one year. (Art. 2 (1)
Conspiracy to commit any of the offenses listed in the annex of the treaty is
also punishable (Art. 2(2))
Extradition shall not be granted when (Art. 4):
o The person is being proceeded against, or has been tried and
discharged or punished in the territory of the requested State;
o The prosecution for the offense has become barred by prescription
according to the laws of the requesting State;
o The offense is political in character.
However if the offense is political in character and it
involves kidnapping, murder or other assault upon a
person which the contracting party has a duty under the IL
to protect or those committed on board an aircraft

20

7.

engaged in commercial services, then extradition may be


granted.
The determination that extradition should/should not be granted shall be
made in accordance with the law of the requested State and the person whose
extradition is sought shall have the right to use all remedies and recourses
provided by law. (Art. 8)
Extradition will be granted ONLY if there is sufficient evidence according to the
laws of the place where the person sought shall be found (Art. 10)

8.

In the Matter of the Requested Extradition of Joseph Doherty (p. 115)


(RL)

9.

TOPIC:
DEC. 12, 1984
Petitioner: US, on behalf of UK
Respondent: Doherty
FACTS:
Doherty participated in a Provisional Irish Republican Army (PIRA) (its a rebel
group) organized ambush of a British Army convoy wherein a British soldier
was shot and killed.
He was arrested and charged with murder and related offenses.
After completion of the trial but before the issuance of the verdict, Doherty
escaped prison and fled to the US.
UK sought to extradite him pursuant to the Treaty of Extradition between US
and UK.
Doherty contended that his conduct was not an extraditable offense under the
Treatys political offense exception.
ISSUES/HELD: W/N Doherty may be extradited based on his conducts.NO, the US
Court said that his acts were political in nature, hence it denied the extradition
request. (Acts which are political in nature is not a ground for extradition)
RATIO:
Operative factors identified by the court to determine w/n it would fall
under the political offense exception:
o Nature of the act
o Context in which it is committed
o Status of the party committing the act
o Nature of the organization on whose behalf it is committed
o Particularized circumstances of the place where the act takes place
The court concluded that Dohertys actions fell w/in the exception because
they:
o Took place in the area where change was to be effected
o Did not clearly violate the Geneva Convention & International Law
o Were directed in furtherance of military objectives
o Were not aimed at civilians.
PIRAs structure and internal system illustrated its political character

UK-US: Extradition Treaty Supplement Limiting Scope of Political


Offenses to Exclude Acts of Terrorism and Letter of Transmittal to the
the U.S. Senate (p. 116) (EM)

Excludes from the scope of political offense exception serious offenses typically
committed by terrorists
Narrows the application of the political offense exception to extradition

UK-US Extradition Treaty Supplement [Supplementary Treaty


Concerning the Extradition Treaty between Government of the U.S.A.
And the government of the U.K. Of Great Britain and Northern Ireland
(1972)] (p. 117-120) (EM)

Article 1
o None of the following offenses shall be regarded as an offense of a political
character
Offense within the scope of the Convention for the Suppression of
Unlawful Seizure of Aircraft
Offense within the scope of the Convention for the Suppression of
Unlawful Acts against the safety of Civil Aviation
Offense within the scope of the Convention of the Prevention and
Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents
Offense within the scope of the International Convention against the
Taking of Hostages
Murder
Manslaughter
Maliciously wounding or inflicting grievous bodily harm
Kidnapping, abduction, false imprisonment or unlawful detention,
including the taking of a hostage
The following offenses relating to explosives
Causing of an explosion likely to endanger life or property
Conspiracy to cause such explosion
Making or possession of an explosive substance by a person
who intends either himself or through another person to
endanger life or cause serious damage to property
Following offenses relating to firearms
Possession or ammunition with the intention to endanger life
Use of firearm with intent to resist or prevent the arrest or
detention
Damaging property with intent to endanger life or with reckless
disregard as to whether the life of another would thereby be
endangered
Attempt to commit any of the foregoing offenses

21

Article 2
o Prosecution for the offense for which extradition is requested has become
barred by lapse of time according to the law of the requesting party
Article 3
o A person arrested shall be set at liberty upon the expiration of 60 days from
the date of his arrest if a request for his extradition shall not have been
received.
Article 4
o This treaty shall apply to any offense committed before or after this
supplementary treaty enters into force except offenses not considered an
offense under the laws of both Parties at the time of commission
Article 5
o This supplementary treaty shall form an integral part of the Extradition
treaty and shall apply
To U.K.
To U.S.
Article 6
o This supplementary treaty shall be subject to ratification
o Only after ratification may this treaty come into force

10. Offences and Certain Other Acts Committed on Board Aircraft: The
Tokyo Convention of 1963 (p. 121-122) (EM)
Two objectives of the convention
To ensure that, the case of offense against penal law committed on board aircraft,
there will always be a jurisdiction in which a suspected offender may be tried, and
To authorize the aircraft commander and other to take certain steps such as
restraint of persons who commit, or are about to commit on board an aircraft an
offense which jeopardizes the safety of the aircraft or persons or property therein
Dual Rules:
The convention applies if the offense or other act takes place on board of any
aircraft registered in a contracting state while it is in flight or on the surface of the
high seas or in any other area outside the territory of any state the power of the
aircraft commander will not apply to offenses committed or about to be committed
by a person on board in the airspace of the state of registration, or over the high
seas, or any other area outside the territory of any state
Uniform Rule on jurisdiction in the Rome Draft:
The state of registration may exercise jurisdiction over both offenses and acts
committed on board an aircraft. "Acts" pertain to civil violations of air regulations.

Existing extradition arrangements are affected. Offense committed on aircraft


registered to a contracting state are to be treated for the purpose of extradition as
if they had been committed not only in the place where they occurred but also in
the territory of the state of registration. The Convention does not create an
obligation to grant extradition.
A crime may be considered as having been committed in the state of registry of the
aircraft , but the jurisdiction in another state may be had if the offense:
o Has an effect in its territory
o Has been committed by or against its national or permanent resident
o Against its national security
o Is a subject of an exercise of jurisdiction and necessary to ensure the
observance of an obligation of such state under multilateral agreement

11. Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation (p. 123-127) (EM)
Article 1
Any person commits an offence if he unlawfully and intentionally
o Performs an act of violence against a person on board an aircraft
o Destroys an aircraft
o Places a device in an aircraft that is likely to endanger the latter
o Destroys or damages air navigation facilities
o Communicates information which he knows to be false, thereby
endangering the aircraft's safety
Any person also commits an offense if he:
o Attempts to commit any of the above
o Is an accomplice to the offenses above
Article 2
Aircraft is in flight - at any time from the moment its external doors are closed
following embarkation until the moment when any such door is opened for
disembarkation
Aircraft in service - from the beginning of the preflight preparation of the aircraft
until 24 hours after any landing
Article 3
Each of the offenses in Article 1 is punishable by severe penalties
Article 4
This convention shall not apply to aircraft used in military, customs or polic services
This convention applies when (1) the aircraft is outside the territory of the State of
registration, (2) the offender is found in the territory other than the State of
registration

22

Article 5
Each Contracting State shall take such measures as may be necessary to establish its
jurisdiction over the offences when (1) the offence is committed within their
jurisdiction, (2) when the offense is committed in an aircraft registered in that
State, (3) when the aircraft lands on the territory of the State and the offender is
still on board, (4) when the offence is committed against a staff who has their
principal place as the State

Sherman Act was supplemented in 1914by the Federal Trade Commission Act and
the Clayton Act - these three statutes form the antitrust legislation for the
promotion of competition in open markets
Since many great monopolies do not operate merely within the territory of one
State, the antitrust law has been given an extraterritorial application
Chapter 1: The Territorial Principle of Jurisdiction

Article 6
A Contracting State must take the offender into custody, make preliminary factual
enquiries

First principle of jurisdiction - in general, every State is competent to punish crimes


committed upon its own territory
Extra territorium jus dicenti impune non paratur - a national, when abroad, is
beyond the range of his country's criminal law

Article 7
The State, if no extradition is contemplated, must submit the offender's case to
competent authorities for prosecution

However, this is not an absolute principle


This has not commanded the general assent of States, and has never therefore
been a rule of international law

Article 8 (impt.)
The offences shall be deemed to be included as extraditable offences in any
extradition treaty existing between Contracting States. Contracting States
undertake to include the offences as extraditable offences in every extradition
treaty to be concluded between them
If a contracting State which makes extradition conditional on the existence of a
treaty receives a request for extradition from another Contracting State with which
rrrre5t55rit has no extradition treaty, it may at its option consider this Convention
as the legal basis for extradition in respect of the offences. Extradition shall be
subject to other conditions provided by law of the requested State.
Contracting States which do not make extradition conditional on the existence of a
treaty shall recognize the offences as extraditable offences between themselves
subject to the conditions provided by the law of the requested State.

B.

State practice is against the idea that extraterritorial jurisdiction is a matter just
left to the discretion of each Sovereign State and not governed by international
law
Extraterritoriality of jurisdiction us not a matter of sovereign discretion
The countervailing principle limiting extraterritorial jurisdiction: extraterritorial
jurisdiction may not be exercised in a way contradicting local law at the place
where the alleged offense was committed
Local law must be preferred
More difficult question: when there is no direct collision between the local and
external laws BUT the act, though unlawful for the external law, was perfectly
lawful in the place where it was done
Local law must still be preferred since a person should not be put in jeopardy of a
criminal law to which he has never owed allegiance to
However, there are certain exceptions:
o A State may exercise jurisdiction if the unlawful act done in another
country is affecting it ("common crime")

Civil Jurisdiction
1.

Extraterritorial Jurisdiction and the US Anti-trust Laws (p. 128-137)


(EM)
United States Antitrust laws
"distinctive American means for assuring competitive economy on which our
political and social freedom under representative government in par depend"
Elaborate and highly technical body of legislation and cases
Sherman Act of 1890 (sec. 1)
Every contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with foreign nations is
declared illegal

Burden of proof - the burden of proof is on the State claiming a right to


extraterritorial jurisdiction
o States may claim extraterritorial jurisdiction in cases where they believe
their legitimate interests are concerned
Chapter II: Principles of Extraterritorial Jurisdiction
1.

The Nationality Principle - international law permits a State to claim jurisdiction


over its nationals without territorial limit
23

2.

The Passive Personality Principle - a State claims the right to punish aliens for
committed abroad to the injury of their own nationals (sometimes called the
"protection principle")
The Security Principle - a State may exercise extraterritorial jurisdiction over
crimes of aliens directed against its security, credit, political independence, or
territorial integrity
The universality principle - suppression of crime is an interest common to all States
and to all humankind
Extensions of the territorial principle - applies when different elements of the
offence take place in different State
o Subjective territorial principle - jurisdiction of a State to prosecute and
punish crimes commenced within the State by completed or consummated
abroad
o Objective territorial principle - jurisdiction of the State to prosecute and
punish crimes commenced without the State but consummated within its
territory
Lotus case - many countries regard offences as having been committed in their
territory "if one of the constituent elements of the offence, and more especially its
effects, have taken place there"
"effects" - those effects which are a constituent element in the crime

3.

4.
5.

(a) the conduct and its effect are constituent elements of activity to which the rule
applies
(b) the effect within the territory is substantial and
(c) it occurs as a direct and primarily intended result of the conduct outside the
territory.
Article 7
In the event of there being concurrent jurisdiction of two or more States so as to create
a conflict with respect to the conduct of any person:
(a) no State shall require conduct within the territory of another State which is
contrary to the law of the latter, and
(b) each State shall, in applying its own law to conduct in another State, pay due
respect to the major interests and economic policies of such other State.
Note:
Anti-Trust regulation by which a State is entitled to prescribe rules governing the
conduct outside of its territory which threatens its security as a State (Protective
principle) is applicable only in the most exceptional circumstances.

3.
2.

Resolution adopted by the ILA: Extraterritorial application of the Antitrust Legislation (p. 138-139) (NO)

Extra territorial application of Anti-Trust Legislation


Article 3
(1) A State has jurisdiction to prescribe rules governing the conduct of an alien
outside its territory provided
(a) part of the conduct being constituent the element of the offence occurs
within the territory and
(b) acts or omissions occurring outside the territory are constituent elements
of the same offence
(2) Whereas municipal law is the sole authority for the purpose of ascertaining the
constituent elements of a particular offences, international law retains a
residual but overriding authority to specify what is or is not capable of being a
constituent element for the purpose of determining jurisdictional competence.
Article 5
A State has jurisdiction to prescribe rules of law governing conduct that occurs outside
its territory and causes an effect within its territory if:

US v. FNCB (p. 139-143) (NO)

379 U.S.
J. Douglas

Facts:
Omar, S.A. is an Uruguayan company seeking a $10,000 credit from a regulated
investment company.
When the IRS investigated, it revealed that Omar possibly owed the US a large
amount of taxes.
o Omar maintained several accounts in New York
o The lawyer contended that the transactions have no tax
liability because Omar was not a personal holding
company.
o He added that if the IRS continues the such action, Omar
might liquidate and send the money out the US
IRS issued a jeopardy assessment against Omar totaling to $19,300,000.00 and
filed a case in the District court of New York.
o It impleaded Omar as well as several banks including the
First National City Bank(Citibank)
Omar liquidated a large part of its securities and sent out its funds. Some were
transferred to Citibank in Uruguay and deposited there on the day when the
complaint was filed.
NY District court froze the account until jurisdiction could be obtained over
Omar.

24

Citibank contests the authority of the Court on the ground that it lacks
jurisdiction because the accounts situs is in Montevideo(Uruguay) and
personal jurisdiction over Omar was not obtained.
Issue:
WON the creditor (US) may by injunction protect whatever rights the debtor(Omar) may
have against respondent(Citibank) who is before the court on personal service. Yes
Held:
Citibank argues that the US can assert only those rights that Omar has against
Citibank in New York and under NY law and that a depositor in a foreign branch
has an action against the head office only when there has been a demand and
wrongful refusal at the foreign branch.
The opportunity to make that collection should not be lost merely because
Omar has not made the agreed-upon demand on Citibank at the time and
place and manner in the contract.
Citibank(Respondent) has actual control and practical control over its
branches; it is organized under federal statutes which authorizes it to be sued
or to sue, defend as one entity and not branch by branch.
o The branch bank is therefore within the reach of the in
personam order by the Court as are those of the home
office.
o Once personal jurisdiction has been acquired, the court has
the authority to order it(Citibank) to freeze property under
its control, whether within or without the country.
The temporary injunction is appropriate to prevent further dissipation of
assets.
o If its was beyond the courts jurisdiction, foreign tax payers facing
jeopardy assessments may simply transfer funds abroad before
personal service on the tax payer could be made.
o
Dispositive: We conclude that this temporary injunction is a reasonable measure to
preserve status quo pending service of process on Omar and an adjudication on merits.
CA decision is reversed.

25

Regardless of whether the organ is part of the formal structure of the


government,solongastheorganisempoweredbyinternallawtoexercise
suchauthority

RESPONSIBILITYOFSTATES(Pt.I)

A. GENERALPRINCIPLESOFRESPONSIBILITY
1. ILCDraftArticlesonSR(Arts.14)(RC)

ExamplesofInternationalcrimesanddelicts:
breachofinternationalobligation

Topic:GeneralPrinciplesofStateResponsibility

committinganactrecognizedasacrimebytheinternationalcommunity

committingaggression

Summary:

impedingtherighttoselfdetermination

For every international wrongful act of a State entails the international


responsibilityofthatState.

Internationally wrongful act: based on international law and cannot be affected


bythecharacterizationofthesameasalawfulactininternallaw.

actsofslavery,genocide,apartheid
actsendangeringtheenvironment

B. RESPONSIBILITYFORACTSAFFECTINGINDIVIDUALS

I. TRADITIONALINTERNATIONALLIABILITY
1. USv.Mexico(RC)

2. SecondReportonSR(RC)
Topic:InternationallyWrongfulAct

An internationally wrongful act is based on the actual existence of an


internationallegalorderandinthelegalnatureoftheobligationsitimposeson
its subject. Whenever a State is guilty of an internationally wrongful act against
anotherState,internationalresponsibilityisestablishedimmediatelyasbetween
thetwostates.

3. ILCDraftArticlesonSR(Arts.58and19)(RC)

Topic:StateResponsibility,actofjudiciaryisdirectgovernmentalresponsibility

FACTS:
B.E. Chattin was an American citizen working for the Southern Pacific Railroad
Company of Mexico as a passenger conductor. He was arrested for allegedly
pocketingmoneyfrompassengersinsteadofremittingthemtothecompany.

Thereafter, he proceeded to trial and was found guilty. He was imprisoned but
was able to escape when there was rebellion. He returned to the US and now
claims damages against Mexican state for having been deprived of due process
andbeingtreatedinhumanely.

Topic:AttributionofStateResponsibility.

ISSUE:W/NMexicoisliabletopay$50,000asdamagestoChattin?YES!

TheStateisresponsibleforactsdonebyitsORGANSwhen:

Theorganwasactingwithinitscapacity

RATIO:

Regardless of whether the organ is part of the constituent, legislative,


executive,judicialorotherpower

Evidence and court records showed that Chattin was indeed deprived of due
process.Whenhewenttotrial,hewasnotallowedtoconfronthisaccusers.The
accusers only had to submit anonymous testimony. Furthermore, his trial was
delayed.Hehadbeenimprisonedforafewmonthsbeforehesawtheinsideof
thecourtroom.Lastly,thetrialhadonlylastedlikeaday.
1

Mexicoisliablebecauseitisthestate'sresponsibilitytoensurethatitsjudiciary
keepsupwiththeinternationalstandards.

Criticism#4:TheDeclarationpaysscantregardtoeconomicrights.

II. INTERNATIONALPROTECTIONOFHUMANRIGHTS
1. UDHR(pleaselookattheoriginaltext )
2. UDHRAT35:WesternPasseorAliveandUniversal(JG)
Since the adoption by the UN General Assembly of the Universal Declaration of
HumanRightsin1948,therehavebeenmanycriticismsandopinionsagainstits
th
statusandvalidity.Onthe35 yearoftheDeclarationandinviewofthefactthat
itcontinuestoserveasacornerstonefortheactivitiesbothoftheUNandofthe
most nongovernmental organizations in the field of human rights, it seems
timelytoassessthevalidityofthesecompetingperspectives.

Criticism #1: Third World participation in the drafting of the Declaration was
negligible

UDHRDefense:Despitethefactthatthedevelopmentoftheprotectionofsuch
rightscamemuchlater,itequallyprioritizeseconomic,social,andculturalrights.

Criticism #5: The Declaration does not take adequate account of the traditions
andneedsoftheThirdWorld.
UDHR Defense: Efforts are bring undertaken to the effect that in the
implementation of human rights, methods used should take into account the
traditions and culture of each society as well as of its legal system. Moreover,
contributiontotheimplementationofinternationalstandardsonhumanrightsat
the domestic level may also be made through various bodies such as human
rightscommissions,peoplesorganizations,andvillagetribunals.

Criticism #6: The Declaration overlooks the importance of international


solidarity.

UDHRDefense:ThecontributionbytheThirdWorldwasbynomeansnegligible.
Indeed,themainproponentswereChile,Cuba,andPanama.AttheGAin1948,
Egypt, Ethiopia, Liberia, Afghanistan, the Philippines, Thailand, India, and
Pakistan,aswellasalloftheCentralandLatinAmericanStateswereamongthe
48votinginfavoroftheDeclaration.

UDHR Defense: Article 28 of the Declaration provides that everyone is entitled


toasocialandinternationalorderinwhichtherightsandfreedomssetforthin
thisDeclarationcanbefullyrealized.TheresponsibilitiesofStatesinthisregard
arealsoprovidedinArticles55and56,whichrequirecooperationamongStates
for the promotion of both respect for human rights and economic and social
progressanddevelopment.

Criticism #2: The Declarations philosophical roots are exclusively Western and
itsvaluesarethereforeinapplicabletoothersocieties.

Conclusion: There is a large and growing body of evidence to support that in


additiontotheiradmittedmoralandpoliticalauthority,thejusticiableprovisions
oftheDeclarationhaveacquiredtheforceoflawaspartofthecustomarylawof
nations.

UDHR Defense: The Declaration cannot reasonably be said to be the exclusive


reflection of any one ideological conception. The Eastern European input was
sufficient to ensure the inclusion of economic, social, and cultural rights. In the
implementationofrights,thereisdueregardfortheculturesofeachsociety.

Criticism #3 The Declaration enshrines an individualistic approach to human


rightswhichisunacceptableinnonWesternsocieties.
UDHR Defense: It is true that the UDHR places emphasis on the rights of the
individual,butitequallyprotectscollectiveorpeoplesrights.Thelanguageused
isflexible;infact,aprocedurewasestablishedbyECOSOCresolution1503which
focuses on situations involving gross violations of human rights rather than on
individualcases.

3. CharteroftheUN(Art.2)
The Organization and its Members, in pursuit of the Purposes stated in Art. 1,
shallactinaccordancewiththeffPrinciples:
xxx
7.NothingcontainedinthepresentChartershallauthorizetheUNtointervenein
matterswhichareessentiallywithinthedomesticjurisdictionofanystateorshall
require Members to submit such matters to settlement under the present
2

Charter; but this principle shall not prejudice the application of enforcement
measuresunderChapterVII.

4. SouthWestAfricaCases(CG)
(Ethiopiav.SouthAfrica);(Liberiav.SouthAfrica)
DissentingOpinionofJudgeTanaka

Issue:WONthepolicyofracialdiscriminationorseparatedevelopmentisperse
incompatible with the wellbeing and social progress of the inhabitants, or
whetherthepolicyofapartheidisillegalandconstitutesabreachoftheMandate
YES

Discussion:
1.

2.

WhatisApartheid?
The status, rights, duties, opportunities and burdens of the population are
determinedandallottedarbitrarilyonthebasisofrace,colorandtribe,ina
pattern which ignores the needs and capabilities of the groups and
individuals affected, and subordinates the interest and rights of the great
majorityofthepeopletothepreferencesoftheminority
From the standpoint of the Applicants, the violation of the norm of non
discrimination is established if there exists a simple fact of discrimination
withoutregardtotheintentofoppressiononthepartoftheMandatory
Meanwhile,therespondentdoesnotrecognizetheexistenceofthenormof
nondiscriminationofanabsolutecharacterandseekstoprovethenecessity
ofgroupdifferentiationintheadministrationofadiversecommunity

PrincipleofEquality
Mostfundamentalprinciplesofmoderndemocracyandisthestartingpoint
ofallotherliberties
Itisphilosophicallyrelatedtotheconceptsoffreedomandjustice
Allhumanbeingsaspersonshaveanequalvalueinthemselves,thattheyare
theaimitselfandnotmeansforothers,andthat,therefore,slaveryisdenied
Thisidea,however,doesnotexcludethedifferenttreatmentofpersonsfrom
the consideration of the differences of factual circumstances such as sex,
age,language,religion,etc.
Theremustbereasonabledistinctions

3.

RelativeEquality
Theprincipletotreatequallywhatareequalandunequallywhatareunequal
Adifferenttreatmentispermittedwhenitcanbejustifiedbythecriterionof
justice,whichlogicallyexcludesarbitrariness

4.

WhyApartheidisviolativeofthebasicrightsagainstdiscrimination
Forthis,freedomofchoiceofoccupationsshallbeconsidered
There are certain jobs specifically reserved for Europeans or the Whites,
whileNativesareconfinedtounskilledlabor
This, itself, is a form of discrimination because they contend that some
Whites,ingeneral,donotdesiretoserveundertheauthorityoftheNatives
onthehierarchyofindustrialsystems
It is admitted that there is friction, conflict and animosity, and it cannot be
prevented,butitmustbeovercome,notapproved
To take into consideration the psychological effect upon the Whites who
wouldbesubjectedtothesupervisionoftheNativesifaceilingdidnotexist,
thatisnothingelsebutthejustificationorofficialrecognitiononthepartof
theWhitepopulationwhichdoesharmtothedignityofman
Furthermore,individualswhocouldhaveadvancedbytheirpersonalmeritsif
there existed no ceiling are unduly deprived of their opportunity for
promotion
Respondenttriestojustifythisasanecessarysacrificeforthemaintenance
ofsocialsecurity,butitisunjusttorequireasacrificeforthesakeofsocial
securitywhenthisisofsuchimportanceashumiliationofthedignityofthe
personality

Summary:

Theprincipleofequalitybeforethelawrequiresthatwhatareequalareto
betreatedequallyandwhataredifferentaretobetreateddifferently
All human beings, notwithstanding the differences in their appearance and
other minor points, are equal in their dignity as persons. Accordingly, from
thepointofviewofhumanrightsandfundamentalfreedoms,theymustbe
treatedequally.
The principle of equality does not mean absolute equality, but recognizes
relative equality, namely different treatment proportionate to concrete
individualcircumstances.Differenttreatmentmustnotbegivenarbitrarily;it
requires reasonableness, or must be in conformity with justice, as in the
3

treatment of minorities, different treatment of sexes regarding public


conveniences, etc. In these cases, the differentiation is aimed at the
protection of those concerned, and it is not detrimental and therefore not
againsttheirwill.
Discrimination according to the criterion of race, color, national or tribal
origininestablishingtherightsanddutiesoftheinhabitantsoftheterritory
isnotconsideredreasonableandjust
Consequently, the practice of apartheid is fundamentally unreasonable and
unjust
As to the alleged violation by the Respondent of the obligations incumbent
uponitunderArticle2,paragraph2,oftheMandate,thepolicyofapartheid
including in itself elements not consistent with the principle of equality
before the law, constitutes a violation of the said Article, because the
observanceoftheprincipleofequalitybeforethelawmustbeconsideredas
anecessaryconditionofthepromotionofthematerialandmoralwellbeing
andthesocialprogressoftheinhabitantsoftheterritory
TheCourtcannot,however,examineandpronouncethelegalityorillegality
of the policy of apartheid as a whole; it can decide that there exist some
elements in the apartheid policy which are not in conformity with the
principleofequalitybeforethelaworinternationalstandardornormofnon
discriminationandnonseparation
For the purpose of the present cases, the foregoing consideration of a few
points as illustrations may be sufficient to establish the Respondents
violation of the principle of equality, and accordingly its obligations
incumbentuponitbyArticle2,paragraph2oftheMandateandArticle22of
theCovenant

5. InterAmericanCourtofHR(RL)
ThomasBuergenthal

(1982)
[SalientpointsoftheArticle]

TheCourtwasestablishedbytheAmericanConventiononHRwhichentered
intoforcein1978
It has been ratified by 17 out of 29 member states of the Organization of
AmericanStates(OAS).

Ithas7judges,witharegulartermof6years,nominatedandelectedbythe
stateparties.
The President, Vice President and another judge, who is designated by the
President,composethePermanentCommission.
o ItactsastheCourtsbureauordirectorate,andassistsandadvisesthe
Presidentintheexerciseofhisfunctions.
Jurisdiction:
o CONTENTIOUS JURISDICTION the jurisdiction to decide disputes
involving charges that a state party has violated the HR guaranteed by
theConvention.
o ADVISORY JURISDICTION empowers the court to interpret the
convention and other HR instruments at the request of OAS member
states.
o Its power to decide a case referred to it is conditioned on the
acceptanceofitsjurisdictionbythestatespartiestothedispute;being
meresignatorytotheconventionisinsufficient.
o A state that ratifies the convention is deemed ipso facto to have
accepted the right of any person/group or persons, or any non
governmental entity legally recognized in one or more OAS member
statestofileapetitionwiththeCommission.
But, both states must recognize the competence of the
Commissiontoreceiveandexamineinterstatecomplaints.
o Amicablesettlementsarepreferred.
JudgmentsandPreliminaryDecisions:
o It has the power to enter a declaratory judgment and to award
damages.
o It has the power to grant an extraordinary remedy in the nature of a
temporaryinjunctionincases(1)pendingbeforetheCourtand(2)for
cases being dealt with by the Commission that have not yet been
referredtotheCourtforadjudication.
EnforcementofJudgments:
o The Convention does not establish a formal procedure to enforce the
rulingsoftheCourtagainstrecalcitrantstates.
Thecourtmayalsoissueadvisoryopinions.

III. TAKING OF PROPERTY:


EXPROPRIATION

NATIONALIZATION

1. UN Declaration on Permanent Sovereignty Over Natural


Resources(EM)
-

As a basic constituent of the right to selfdetermination, due regard should


bepaidtotherightsanddutiesofStatesunderinternationallawandtothe
importance of encouraging international cooperation in the economic
developmentofdevelopingcountries.

Any measure in this respect must be based on the recognition of the


inalienablerightofallStatesfreelytodisposeoftheirnaturalwealthand
resourcesinaccordancewiththeirnationalinterests,andonrespectforthe
economicindependenceofStates.

It is desirable to promote international cooperation for the economic


developmentofdevelopingcountries.

Nationalization,expropriationorrequisitioningshallbebasedongroundsor
reasons of public utility, security or the national interest which are
recognizedasoverridingpurelyindividualorprivateinterests,bothdomestic
andforeign.

Ownershallbepaidappropriatecompensationinaccordancewiththerules
in force in the State taking such measures in the exercise of its sovereignty
andinaccordancewithinternationallaw.
When question of compensation gives rise to a controversy, the national
jurisdictionoftheStatetakingsuchmeasuresshallbeexhausted.However,
upon agreement, settlement may be made through arbitration or
internationaladjudication.

2. UNResolution3171(EM)
1.

Strongly reaffirmstheinalienable rights of States to permanent sovereignty


overitsnaturalresources.

2.

SupportstheeffortsofdevelopedStatesandthoseundercolonialandracial
denomination, or foreign occupation to regain effective control over their
naturalresources.

3.

to determine the amount of possible compensation and the mode of


payment, and that any disputes that might arise should be settled in
accordance with the national legislation of each State carrying out such
measures.

AND

Affirms the application of nationalization as an expression of States


sovereigntyinordertosafeguardtheirinterests.AssuchStatesareimplied

4.

Deplores the use of force, aggression, economic coercion, and other


illegal/improper means in resolving disputes concerning the exercise of its
sovereignrights.

5.

EmphasizesthatactionsaimedatcoercingotherStatesareviolationsofthe
UNCharter

6.

EmphasizesthedutyofStatestorefrainfrommilitary,political,oreconomic
coercion.

7.

Recognizes that one of the most effective ways for developing States to
protect their natural resources is through establishing, promoting, or
strengtheningtheirmachineriesforcooperation

3. CharterofEconomicRights&DutiesofStates(EM)
Economic,politicalandotherrelationsamongStatesshallbegovernedby:
a.

Sovereignty,territorialintegrityandpoliticalindependenceofStates

b.

SovereignequalityofallStates

c.

Nonaggression

d.

Nonintervention

e.

Mutualandequitablebenefit

f.

Peacefulcoexistence

g.

Equalrightsandselfdeterminationofpeoples

h.

Peacefulsettlementofdisputes

i.

Remedyingofinjusticebroughtaboutbyforceandwhichdepriveanationof
thenaturalmeansforitsnormaldevelopment

j.

Fulfillmentingoodfaithofinternationalobligations

k.

Respectforhumanrightsandfundamentalfreedoms

l.

Noattempttoseekhegemonyandspheresofinfluence

m. Promotionofinternationalsocialjustice
n.

Internationalcooperationfordevelopment

o.

Freeaccesstoandfromtheseabylandlockedcountries

Article2
-

EveryStatehasandshallfreelyexercisefullpermanentsovereigntyoverall
itswealth,naturalresources,andeconomicactivities

Libyaopposedthispractice,sayingthatwasinvolvedweresovereignacts
ofLibya,thusnotsubjecttoarbitration

The president of the ICJ appointed Dupuy to be the sole arbitrator in the
proceedings,which,however,Libyadidnotgoto

EachStatehastheright

To regulate and exercise authority over foreign investment within its


national jurisdiction in accordance with its national objectives and
priorities.NoStateshallbecompelledtograntpreferentialtreatment
toforeigninvestment

Issue: WON the issues in this case may be subject to arbitration; WON there
wasabreachofcontractonthepartofLibya

To regulate and supervise the activities of transnational corporations


withinitsjurisdiction

Held:Yes,casemaybesubjecttoarbitration;Yes,Libyabreacheditsobligations
underthecontract

Tonationalize,expropriate,ortransferownershipofforeignproperty,
in which case APPROPRIATE COMPENSATION should be paid by the
Stateadoptingsuchmeasures

Ratio:
On jurisdiction for arbitration the 14 deeds of concession were
internationalizedcontracts
-

The deeds of concession contained a provision saying that the concession


would be governed by general principles of Libyan law COMMON TO
PRINCIPLES OF INTERNATIONAL LAW, and that in the absence of such
common principles, then they would be governed by and in accordance
with THE GENERAL PRINCIPLES OF LAW, including those applied by
internationaltribunals

This supported the conclusion that the nature of the deeds of concession
madeitaninternationalizedcontract

4. ProposedAmendmenttoArt.2(EM)
In this amendment, it was proposed that appropriate compensation be
changedtojustcompensation.However,thisproposalwasrejectedbyavote
of19infavorvs87against.

5. Dispute
Between
Texaco
Overseas
Petroleum
Company/California Asiatic Oil Company and Govt of
LibyanArabRepublic(EM)
Facts:
-

In 1973 and 1974, Libya issued decrees nationalizing all of the rights,
interests, and property, of Texaco Overseas Petroleum Company (TOPCO)
andCaliforniaAsiaticOilCompany(CAOC)inLibyathathadbeengrantedto
themunder14deedsofconcession

In response to such action, TOPCO and CAOC requested for arbitration and
thusappointedanarbitrator.

However,Libyarefusedtosubmittoarbitration.

Subsequently,thepresidentoftheInternationalCourtofJusticeappointeda
solearbitratortohearthedispute

OnBreachofContract
-

Libya was legally bound to perform the deeds of concession according to


theirterms

Aninternationalizedcontracthaseffectsandconsequencesontherightsof
the parties they may enter into arbitration if their rights in the contracts
are breached. This gives the party a specific, but limited, international
capacity

The injured parties were entitled to restitutio in integrum and that the
sovereign State was obliged to perform in accordance with its contractual
obligations

ThetribunalalsosaidthattheUNGeneralAssembliesregardingpermanent
sovereigntyovernaturalwealthandresourcescouldnotbeusedbytheState
toviolateitscontractualobligationsincommercialtransactions.

PIL McRAE Digest: Responsibility of States (part 2)

RESPONSIBILITYOFSTATES(Pt.II)

C. RESPONSIBILITYFORENVIRONMENTALHARM
1. TrailSmelterArbitration(NO)
Facts:

A smelter (for lead and zinc) was started by the American Auspices in
1896andlatertakenoverbyaCanadiancompanyin1906.
o In 1925 and 1927 two stacks were erected to increase the
output.
o From 1925 to 1931 damages to Washington was due to the
sulphurdioxidefromtheTrailSmelter

The International Joint Commission recommended that $350,000 to be


paidtotheUSbutanarbitrationconventionwassignedin1935.

Issue:
1.

Whether the Trail Smelter caused the damages in Washington therefor


meriting for payment of indemnity and should the Trail Smelter refrain
fromcausingsuchdamagesinthefuture.

Facts

2. CorfuChannelCase(NO)

Held:

The Tribunal finds that the above decisions taken as a whole,


constitute an adequate basis for its conclusions, namely that
undertheprinciplesofinternationallaw,aswellsastheUSlaw:

noStatehastherighttouseorpermittheuseofitsterritory
in such a manner as to cause injury by fumes in or or to the
territoryofanotherorthepropertiesorpersonstherein,when
the case is of serious consequence and the injury is
establishedbyclearandconvincingevidence
ThetribunalholdsthatCanadaisresponsibleininternationallawforthe
conductofTrailSmelter

Futuredamages

SolongasthepresentconditionintheColumbiaRiverprevails,Canada
isshallberequiredtorefrainfromcausingfurtherdamage.
o Thedamagereferredtoanditsextentbeingsuchaswouldbe
recoverableunderthedecisionsofthecourtsoftheUSinsuits
betweenprivateindividuals.
The tribunal decided to impose a regime or measure of control which
shallremaininforceunlessanduntilmodified.
o

A State owes at all times the duty to protect other States against
injuriousactsbyindividualsfromwithinitsjurisdiction
The difficulty rises when it comes to determining the pro subjecta
materiethatisdeemedtobeaninjuriousact.
o Howevertherehasbeenyetacasethatbroughtintoattention
airpollutionthemostanalogouscaseiswaterpollutiondecided
byUSlaw.
o Ittookintoconsiderationsuchdecisions,whichmayserveasa
guideininternationallaw.

nd

OnOctober22 ,1946,twoBritishcruisersandtwodestroyers,coming
from the south, entered the North Corfu Strait. The channel they were
following, which was in Albanian waters, was regarded as safe: it had
beensweptin1944andchecksweptin1945.
One of the destroyers, the Saumarez, when off Saranda, struck a mine
andwasgravelydamaged.
The other destroyer, the Volage, was sent to her assistance and, while
towingher,struckanothermineandwasalsoseriouslydamaged.Forty
fiveBritishofficersandsailorslosttheirlives,andfortytwootherswere
wounded.

Issue
DeanCandelaria1213

PIL McRAE Digest: Responsibility of States (part 2)

1.

WhetherornotAlbaniashouldbeheldliable.Yes

Held

The court draws the conclusion that the laying of the minefield that
caused the explosions could not have been accomplished without the
knowledgeoftheAlbaniangovernment.
o If Albania had been of the British operation and warned the
Britishvesselsoftheexistenceofaminefieldherresponsibility
wouldbeinvolved
TheobligationsincumbentuponAlbaniawastonotify,forthebenefitof
shippingingeneral,theexistenceofaminefieldinAlbanianwaterandin
warningtheBritishwarshipsapproaching

Based on elementary considerations of humanity, the freedom of maritime


communicationandStatesobligationnottoallowknowinglytoitsterritorytobe
usedforactscontrarytotherightsofotherstates.

3. StockholmPrinciples(NO)
SeefulltextinMcRaebutherearetheimportantprovisions

Principle4
Manhasaspecialresponsibilitytosafeguardandwiselymanagetheheritageof
wildlife and its habitat, which are now gravely imperilled by a combination of
adverse factors. Nature conservation, including wildlife, must therefore receive
importanceinplanningforeconomicdevelopment.

Principle5
Thenonrenewableresourcesoftheearthmustbeemployedinsuchawayasto
guard against the danger of their future exhaustion and to ensure that benefits
fromsuchemploymentaresharedbyallmankind.

Principle6

DeanCandelaria1213

Thedischargeoftoxicsubstancesorofothersubstancesandthereleaseofheat,
insuchquantitiesorconcentrationsastoexceedthecapacityoftheenvironment
to render them harmless, must be halted in order to ensure that serious or
irreversible damage is not inflicted upon ecosystems. The just struggle of the
peoplesofillcountriesagainstpollutionshouldbesupported.

Principle11
TheenvironmentalpoliciesofallStatesshouldenhanceandnotadverselyaffect
thepresentorfuturedevelopmentpotentialofdevelopingcountries,norshould
they hamper the attainment of better living conditions for all, and appropriate
steps should be taken by States and international organizations with a view to
reachingagreementonmeetingthepossiblenationalandinternationaleconomic
consequencesresultingfromtheapplicationofenvironmentalmeasures.
Principle16
Demographic policies which are without prejudice to basic human rights and
whicharedeemedappropriatebyGovernmentsconcernedshouldbeappliedin
those regions where the rate of population growth or excessive population
concentrations are likely to have adverse effects on the environment of the
humanenvironmentandimpededevelopment.
Principle20
Scientific research and development in the context of environmental problems,
bothnationalandmultinational,mustbepromotedinallcountries,especiallythe
developing countries. In this connection, the free flow of uptodate scientific
information and transfer of experience must be supported and assisted, to
facilitate the solution of environmental problems; environmental technologies
should be made available to developing countries on terms which would
encouragetheirwidedisseminationwithoutconstitutinganeconomicburdenon
thedevelopingcountries.
Principle21
States have, in accordance with the Charter of the United Nations and the
principlesofinternationallaw,thesovereignrighttoexploittheirownresources
pursuant to their own environmental policies, and the responsibility to ensure
that activities within their jurisdiction or control do not cause damage to the
environmentofotherStatesorofareasbeyondthelimitsofnationaljurisdiction.
Principle22
Statesshallcooperatetodevelopfurthertheinternationallawregardingliability
andcompensationforthevictimsofpollutionandotherenvironmentaldamage
2

PIL McRAE Digest: Responsibility of States (part 2)


caused by activities within the jurisdiction or control of such States to areas
beyondtheirjurisdiction.

4. StatementbyJABeesley(NO)
TheCanadiangovernmentconsidersprinciple21reflectscustomaryinternational
lawandprinciple22assecondaryconsequentialprinciplereflectsanexistingduty
ofstates.Italsoconsidersthedutytoinformstatesoftheenvironmentalimpact
oftheiractionsbeyondtheirjurisdictionasatertiaryconsequentialprinciple.

5. Resolution Adopted by the GA: Cooperation Between


StatesinthefieldoftheEnvironment;ResolutionAdopted
by the GA: Intl Responsibility of States in Regard to the
Environment; Resolution Adopted by the GA: Cooperation
in the Field of the Environment Concerning Natural
ResourcesSharedbytwoormoreStates(NO)
A/8901/2995
Recognizing principle 20 of the Stockholm principles, it emphasizes that states
must not produce significant harmful effects in zones situated outside their
nationaljurisdiction
Cooperationwillbeachievedifofficialandpublicknowledgeisprovidedofthe
technicaldatarelatingtoworkcarriedoutbystateswithintheirterritory.

6. TheFreedomoftheSeas(NO)
Theexistinglawofthesearestsontwotraditionalconcepts,thehighseaswhere
freedomoftheseasprevailandtheterritorialseawhichisunderthesovereignty
ofthecoastalstate.Ononehand,shipshavebeenontheexclusivejurisdictionof
the flag state while the other the coastal states have jurisdiction over the ship
whatever the flag is. While the prevention and control of marine pollution is a
universal concern, it nevertheless falls naturally within the category of coastal
states. The general distinction between global and coastal interest is neither
absolutenorallembracing.
DeanCandelaria1213

Ofallpollutantsofthesea,oilhasreceivedthegreatestpublicityinrecentyears.
Large quantities of oil have been regularly dumped into the sea by tankers and
othershipsinthecourseofdeballastingandtankcleaningoperations.
The first efforts to stop pollution by oil discharge was made at a conference in
Washington, however, it failed to achieve ratification. A second conference
convened in London and later became the 1954 London Convention for the
PreventionofPollutionoftheSeabyOilwhichcameintoforcein1958.
The London convention prohibited the intentional discharge of oil and oily
mixturesintotheseawithincertainzonesextendinggenerally50milesfromland.
These zones encompassed both territorial and high seas. Violations of the
convention were made punishable only under the laws of the flag state of the
offendingship,exceptthatthecoastalstateremainedfreetotakeenforcement
actionagainstallshipswithinitsterritorialsea.
In 1958, the Intergovernmental Maritime Consultative Organization (IMCO), a
second conference on oil pollution was held at London in 1962 amending the
1954 convention. The most notable revision was the extension of prohibited
zonesfrom50100milesandareductionoftheclassesofshipsexemptedfrom
thesaidconvention.
The convention was however not without defect. The central defect relates to
enforcement and involves problems of both detection and jurisdiction. For
instance, the detection of a particular oil discharge created posed the
enforcement with great difficulty. A further problem was whether or not a
particular discharge exceeded the limits under the convention. Finally, the
convention does not make compulsory the adoption of techniques and use of
equipmentthatcouldeliminatethedischargeofoil.
The1954LondonConventionandthe1958GenevaConventionsontheHighSeas
on the Continental Shelf were the only multilateral agreements directed to the
problemofoilpollutionuntil1969.The1969BrusselsConferencewasprompted
bythe1967TorreyCanyondisaster.
BrusselsConference
Aspublicinternational,theInternationalConventionRelatingtoInterventionon
the High Seas in Cases of Oil Pollution Casualties was born. The convention
providesthatstatesmaytakesuchmeasureonthehighseasasmaybenecessary
to protect their coastline or related interests from pollution of the sea by oil,
followinguponamaritimecasualtywhichmayreasonablybeexpectedtoresult
inmajorharmfulconsequences.
Suchconventionrelatestooilpollutiononly,whereasCanadaurgedthatitshould
3

PIL McRAE Digest: Responsibility of States (part 2)


extendtoallpollutants.TheConventionalsoprovidesthatthemeasuretakenby
the coastal state must be such as are, in the circumstances, reasonable or
proportionate to the actual or threatened damage; the coastal state is made
liablefordamagecausedbyitspreventivemeasures.
AsregardstheprivatelawconventionatBrusselstheInternationalConventionon
CivilLiabilityforOilPollutionDamage.Theconventionimposesstrictliabilityon
theownerofanyoilcarryingshipfromwhichoilhasescapedafteranincidentat
sea.Theconventionisrestrictedtoliabilityfordamageoccurringontheterritory
orintheterritorialwatersofacontractingstate.
Nevertheless the two conventions adopted at Brussels in certain respects
representsomeforwardmovementinthedevelopmentofthelawoftheseaand
maritimelaw.
Thepubliclawconventioncodifiestherightofthecoastalstatetointerveneon
the high seas against a ship threatening to pollute its coastal environment, and
servestoestablishaprincipleapplicabletoanypollutionincidentdespitethefact
that the convention is limited to pollution by oil. While the private convention,
doesnotprovidefortheinnocentvictimsofoilpollutionincidentsanddoesnot
cover damage suffered to important interests beyond the territorial sea,
nevertheless fixes the liability of ships for oil pollution damage at double the
amountformerlyavailableunderthe1957conventionrelatingtoTankerOwners.

7. Resolution Adopted by the ILA: Draft Articles on Marine


PollutionofContinentalOrigin(NO)
ArtII
A state shall prevent any new form of continental seawater pollution or any
increaseinthedegreeoftheexistingpollutionwhichcausesubstantialinjuryin
theterritoryofanotherstateortoitsrights
ArtIII
Statesshouldestablishassoonaspossibleinternationalstandardsforcontrolsof
seawaterpollution.
Until such standards are established, the existence of substantial injury from
pollutionshallbedeterminedbytakingintoaccountallrelevantfactors.

8. UN Environment Program: Governing Council Decisions


ConcerningPolicyObjectives(NO)
Having considered a number of reports, the following decisions have been
adopted:
1.

Criticisms on the conventions were that it is remedial and liability oriented.


Furthermore,itisonlyenforceablebetweenparties.TheAuthorpositsthatwhat
is needed is a legal framework which would provide for effective preventive
measures and would not leave it to the potential perpetrators to decide if they
wanttosubmittosuchmeasures.

2.

Inareportofpanelofexpertsonthedisposalofradioactivewastesinfreshwater
statedthatItisageneralruleofinternationallawthatastatemustnotabuseits
rightsunderinternationallawbyallowingalterationofthenaturalconditionsof
its own territory to the disadvantage of natural conditions of the territory of
anotherstate.

Generalpolicyobjectives:provideimprovedknowledgeformanagement
of the resources of the biosphere, encourage and support to the
planning and management of development to achieve maximum
benefits, assist all countries to deal with their environmental problems
and provide assistance with a view of the enhancement and
preservationoftheenvironment
Particular policy objectives: Anticipate and prevent threat to human
health, detect and prevent serious threats to the health of the ocean,
improve the quality of water for human use, help governments in
improving the quality of life, prevent the loss of productive soil, help
governmentinmanagingforestresources,anticipatedisasters,helpgain
publicawareness

What is required in the new legal order for the seas is a better balance of
interests,abalancebetweenexploitationandconservation,asbetweenfreeseas
and clean seas, as between peaceful uses and strategic considerations, and as
betweencoastalinterestsandflaginterests.

Principle24

9. EuropeanEnvironmentalLaw(MT)

DeanCandelaria1213

International matters concerning the protection and improvement of the


environmentshouldbehandledinacooperativespiritbyallcountries,bigor
4

PIL McRAE Digest: Responsibility of States (part 2)


small, on an equal footing. Cooperation through multilateral or bilateral
arrangementsorotherappropriatemeansisessentialtoeffectivelycontrol,
prevent, reduce and climate adverse environmental effects resulting from
activitiesconductedinallspheres,insuchawaythatdueaccountistakenof
thesovereigntyandinterestofallstates.

Principle13

10. RioDeclarationonEnvironmentandDevelopment(MT)
AdoptedonJune141992

Principle2

States have in accordance with the charter of the UN and the principles of
internationallaw,thesovereignrighttoexploittheirownresourcespursuant
totheirownenvironmentalanddevelopmentpolicies,andtheresponsibility
to ensure activities and within their jurisdiction or control do not cause
damagetotheenvironmentofotherstatesorofareasbeyondthelimitsof
nationaljurisdiction.

Principle14

The right to development must be fulfilled so as to equitably meet


developmentalandenvironmentalneedsofpresentandfuturegenerations.

Principle6
Thespecialsituationandneedsofdevelopingcountries,particularlytheleast
developedandthosemostenvironmentallyvulnerable,shallbegivenspecial
priority. International actions in the field of environment and development
shouldalsoaddresstheinterestsandneedsofallcountries.

D. INTERNATIONALCLAIMS
1. North American Dredging Co. of Texas v. United Mexican
States(MT)

Principle12
States should cooperate to promote supportive and open international
economic system that would lead to economic growth and sustainable
development in all countries, to better address the problems of
environmental degradation. Trade policy measures for environmental
purposes should not constitutes a means of arbitrary or unjustifiable
discriminationoradisguisedrestrictiononinternationaltrade.

DeanCandelaria1213

Statesshallimmediatelynotifyotherstatesofanynaturaldisastersorother
emergencies that are likely to produce sudden harmful effects on the
environmentofthosestates.Everyeffortshallbemadebytheinternational
communitytohelpstatessoafflicted.

Environmental impact assessment as a national instrument shall be


undertaken for proposed activities that are likely to have a significant and
adverse impact on the environment and are subject to a decision of a
competentnationalauthority.

Principle18

States should effectively cooperate to discourage or prevent the relocation


and transfer to other states of any activities and substances that cause
severe environmental degradation or are found to be harmful to human
health.

Principle16

Principle3

Statesshalldevelopnationallawregardingliabilityandcompensationforthe
victims of pollution and other environmental damage. States shall also
cooperate in an expeditious and more determined manner to develop
further international law regarding liability and compensation for adverse
effectsofenvironmentaldamagecausedbyactivitieswithintheirjurisdiction
orcontroltoareasbeyondtheirjurisdiction.

Facts:

This case is before this commission on a motion of the Mexican agent to


dismiss.
ItisputforwardbytheUSonbehalfofNorthAmericanDredgingCompany
ofTexas,anAmericanCorporationfortherecoveryofthesumof$233,523
with interest thereon, the amount of losses and damages alleged to have
5

PIL McRAE Digest: Responsibility of States (part 2)

beensufferedbyclaimantforbreachesofacontractfordredgingattheport
of Salina Cruz, which contract was entered into between the claimant and
thegovtofMexico(1912).
ThecontractwassignedatMexico.ThegovtofMexicowaspartytoit.Ithad
foritssubjectmatterservicestoberenderedbytheclaimantinMexico.
Art 18 (the basis of contention of this whole case) (also called the Calvo
clause)incorporatedbyMexicoasanindispensibleprovision,notseparable
fromtheotherprovisionsofthecontractswassubscribedtobytheclaimant
forthepurposeofsecuringtheawardofthecontract.
Its translation is as follows: The contractor and all persons who as
employeesorinanyothercapacity,maybeengagedintheexecutionofthe
work under this contract either directly or indirectly shall be considered as
Mexicans in all matters, within the Republic of Mexico, concerning the
execution of such work and the fulfillment of the contract. They shall not
claim, nor shall they have, with regard to the interests of the business
connectedwiththiscontract,anyotherrightsormeanstoenforcethesame
than those granted by the laws of the republic to Mexicans, nor shall they
enjoyanyotherrightsthanthoseestablishedinfavorofMexicans.Theyare
consequentlydeprivedofanyrightsasaliensandundernoconditionsshall
the intervention of foreign diplomatic agents be permitted, in any matter
relatedtothiscontract.
Basically, it says, that the corporation agreed to have no other rights or
meansofenforcementthanthoseconferreduponMexicansandthatunder
no conditions shall the intervention of foreign diplomatic agents be
permittedinanymatterrelatingtothecontract.

an alleged violation of any rule or principle of international law, the


commission will take jurisdiction notwithstanding the existence of such
clause in a contract subscribed by the claimant. But where a claimant has
expressly agreed in writing, attested by his signature, that in all matters
pertainingtotheexecution,fulfillmentandinterpretationofthecontracthe
will have to resort to local tribunals remedies and authorities and then
willfullyignoresthembyapplyinginsuchmatterstohisgovt,hewillbeheld
boundbyhiscontractandthecommissionwillnottakejurisdictionofsuch
claim
Thecalvoclauseisneitherupheldbyalloutstandinginternationalauthorities
and by the soundest among international awards nor it is universally
rejected.
Calvo clause can be entered into but the commission holds that it cannot
deprive the government of his nation (meaning the govt of the person
damaged) of its undoubted right of applying international remedies to
violationsofinternationallawcommittedtohisdamage.
Inshort,inthiscasethecalvoclauseisupheld.Thoughitdependsonacase
to case basis. Also note that it should not violate any principle of
international law if not the commission can interject. Lastly, that such
agreementcannotdeprivethegovernmentofthepersondamagedtoapply
internationalremedies.Theremustbeabalancedaw

2. IntheSubsequentInternationalFisheriesCo.Case(MT)

(NielsensDissent)

Issue&Held:Isthecorporationboundbythecalvoclause?YES

WON international law really contains a rule prohibiting contract provisions


attemptingtoaccomplishthepurposeofthecalvoclause?NO

Ratio:

The commission decides that the case as presented is not within its
jurisdictionandmotionoftheMexicanagenttodismississustainedandthe
case is hereby dismissed without prejudiced to the claimant to pursue his
remedieselsewhere
Each case involving application of a valid clause partaking of the nature of
thecalvoclausewillbedecidedonitsownmerits.Whereaclaimisbasedon

DeanCandelaria1213

ThisisadissenttothedecisionmadeintheDredgingcaseoftheUSagainst
Mexico.
The commissions discussion of the restriction on interposition was
characterized by failure of recognition and application of fundamental
principlesoflawwithrespecttoseveralsubjects.Amongthemare:
1. The nature of international law as a law between nations whose
operationisnotcontrolledbyactsofprivateindividuals.
2. The nature of international reclamation as a demand of a govt for
redressfromanothergovtandnotaprivatelitigation.
3. A remarkable confusion between substantive rules of international law
that a nation may invoke in behalf of itself or its nationals against
another nation, and jurisdictional questions before international
6

PIL McRAE Digest: Responsibility of States (part 2)

tribunals which are regulated by covenants between nations and of


coursenotbyrulesofinternationallaworbyactsofprivateindividuals
orbycontactbetweenprivatepersons.
Internationallawrecognizestherightofthenationtointervenetoprotectits
national in foreign countries through diplomatic channels and through
instrumentalitiessuchasareaffordedbyinternationalstribunals.
The question presented for determination in considering the effect of local
laws or contractual obligations between a govt and a private individual to
restrictthatrightthereforeiswhetherthereisevidenceofgeneralassentto
suchrestrictions.Althoughthecasewasdismissedonjurisdictionalgrounds,
thecommissionmadereferencetointernationallawbutdidnotciteaword
oftheevidenceofthatlaw
The commission seemed to indicate some view to the effect that the
contractualstipulationsinquestionwereinharmonywithinternationallaw
because they required the exhaustion of local remedies and that therefore
theclaimmightberejected.Thecommissionignoredtheeffectofarticle5
oftheconventionbetweenUSandMexicototheeffectthatnoclaimshall
bedismissedduetononexhaustionoflocalremedies.
No rule can be abolished, or amplified or restricted in its operation by a
single nation or by a few nations or by private individuals or by private
individualsactinginconjunctionwithagovt.
Andassuredlynonationcanbycontractwithaprivateindividualrelieveitself
ofitsobligationsunderinternationallawnornullifyrightsofanothernation
underthatlaw
Domestic law cannot destroy rights secured by international law. domestic
lawsarenotfinallydeterminativeofanaliensrights.Ashavebeenobserved,
violationsofthelawofnationsoccurbyfailureofanationtoliveuptothe
obligationsoftherequirementsofthatlaw.Whilethesigningofthecontract
with a private concern would scarcely in precise language be declared a
violation of international law, certainly any attempt to frustrate another
nationsrightsofinterpositionsecuredbyinternationallawwouldnotbein
harmonywiththat
Itisquitepossiblethecommissionsaidtorecognizeasvalidsomeformsof
waiving the right of foreign protection without thereby recognizing as valid
and lawful every form of doing so. It is difficult to perceive however since
internationallawisalawmadebygeneralconsentofnationsandthereforea
lawwhichcanbemodifiedonlybythesameprocessofconsentamongthe
nations, how the contract of a private individual with a single nation could

DeanCandelaria1213

havetheeffecteitherofmakingofmodifyinginternationallawwithrespect
todiplomaticprotection
Except by expatriation a private person can by no act of his own forfeit or
destroy his govts right to protect him. His acts may of course give rise to
considerations of policy which may influence the attitude of his govt with
respecttohisappealforassistance
It was the duty of the commission to give effect to the clearly expressed
intent of article 5 of the arbitration agreement. The intent and clear legal
effect of that article is that claims shall not be dismissed for failure of
claimants to resort to local remedies. Therefore to reject the claim was to
nullify the clear intent and legal effect of provisions by which two govts
stipulated that claims should not be rejected on the ground that there had
notbeenaresorttolegalremedies.Aclaimantsrighttoprotectionfromhis
govtisdeterminedbythelawofthatgovt.

3. TheTattler(USv.GreatBritain)(MT)
Facts:

This is a claim for $2,028 with interest on account of a seizure of the said
schoonerTattleranditsdetentionforsixdaysbytheCanadianauthoritiesin
Liverpool(onchargeofallegedviolationofCanadianfisherieslawsandofthe
treatyof1818betweentheUSandGB)
The owners of the schooner entered into the following undertaking: in
consideration of the release of the American schooner Tattler (on payment
offineof$500)weherebyguaranteehisMajestyKingEdward,hissuccessors
andassignsandallwhomitdoesormayconcern,againstallclaimsmade
ortobemadeonaccountoforinrespecttosuchdetentionherebywaiving
allsuchclaimsandrighttolibelorotherwisebeforeanycourtortribunalin
respecttosaiddetentionortosuchoranysuchclaimsorlossordamagein
thepremises.
Thepaymentwasunderprotest.

Issue:WONtheclaimiswaivable?
HeldandRatio:withrespecttotheYES.WithrespecttotheUSgovtNO.

Ithasbeenobjectedthattherenunciationofandtheguaranteeagainstany
claimsarenotbindinguponthegovtoftheUSwhichpresentstheclaim.

PIL McRAE Digest: Responsibility of States (part 2)

InthiscaseonlytherightoftheUSissupportingisthatofitsnationalwho
waivedhisrightandconsequentlyinpresentingthisclaimbeforethetribunal
itcanrelyonnolegalgroundotherthanthosewhichwouldhavebeenopen
toitsnational.
Forthesereasons,thistribunaldecidesthattheclaimmustbedismissed.

4. ThePanezys(Estoniav.Lithuania)(MT)
Pleasebearwithmethefactsofthecaseinmcraearereallylongandconfusing.
Facts:

In1892,acompanywasfoundedatSt.PetersburgunderthenameFirst
Company of Secondary Railways in Russia. They were allowed to
constructrailwaysundertheirstatutesandanimperialdecree.
Then the Bolshevist revolution took place. Almost immediately
afterwards,adecreeoftheCentralExecutiveCommitteeconcerningthe
nationalization of banks placed in the hands of the Soviet Govt, the
shares, assets and liabilities of companies existing in Russia. Among
thesecompanieswastheFirstCompanyofSecondaryRailways.
Political events them followed: Lithuania proclaimed itself an
independentstate,thesamethinghappenedinEstoniaandsomedays
later, the Treaty of BrestLitovsk between Germany and her allies and
Russia confirmed the abandonment of Russian sovereignty over the
former Baltic provinces and Lithuania which however remained in the
occupationofGermantroops.
Furthermore, the Bolshevist leaders hurried on measures intended to
establish the communist Soviet regime confiscating private property
throughoutRussianterritory.Adecreewaspromulgateddeclaringtobe
the property of the Russian Socialist Federated Soviet Republic all
industrialandcommercialundertakingsinSovietRussiaincludingallthe
undertakings of private and secondary railway companies, whether in
operationorunderconstruction.
Shortlyafterwards asecond Soviet decree was promulgated which was
designed to supplement the preceding decree, particularly with regard
to railways. The boards of former private railways which now became
thepropertyoftheRepublicwereabolishedandreplacedbyasocalled
liquidationcommissionforeachline.
Somemonthslater,athirdSovietdecreewhichprovidesthattheshares
and foundation shared of joint stock companies the undertakings of

DeanCandelaria1213

whichhavebeennationalizedorsequestratedareannulledevenincases
where such undertakings have not yet passed under the control of
governmental boards and where they have been leased to the former
ownersrentfree.
The Lithuanian Govt took possession of the PanevezysSventziany
railwaywhichwassituatedinterritorywhichhadbecomepartofthe
state of Lithuania. Months later,the Russian Socialist Federated Soviet
Republic signed its first treaty with the new Baltic states: the treaty of
TartuwithEstoniasometreatiesfollowedafterbutnotrelevanttothe
case.
Inthepresentcase(sorryforthelongbutnecessarybuildup),theTreaty
of Tartu concluded between the Soviet Republic and Estonia merits
specialattentionforthereasonthat,itcontainsdetailedprovisionsasto
thefateofprivatepropertysituatedinEstonianterritoryparticularlyas
topropertyofjointstockcompanies.
Under Art. 11 of which the meaning and translation are disputed
between the parties, Russia renounces all the rights of the Russian
Treasury to the movable and immovable property of individuals, which
previously did not belong to her, in so far as such property may be
situatedinEstonianterritory.Allsuchpropertybecamethepropertyof
Estonia and was freed from obligations as the date of nationalizing the
banks.
Further, an article supplementary provides that the Russian Govt will
hand over to the Estonian Govt the shares of those joint stock
companieswhichhadundertakingsinEstonianterritory,insofarassuch
shares may be at the disposal of the Russian Govt as a result of the
decree of the Central Executive Committee. But the treaty points out
that the above mentioned shares shall only confer on Estonia rights in
respectofthoseundertakingsofthejointstockcompanieswhichmaybe
situated in Estonian territory and that in no case shall rights of Estonia
extend to undertakings of the same companies outside the confers of
Estonia. The treaty then expressly mentions the First Co. of Secondary
Railwaysasincludedamongstthesejointstockcompanies.
Aftercomingintoforceofthetreaty..theyweredirectedtoholdgeneral
meetingsiftheydidnotdosothenallthepowersoftheboardwouldbe
heldastohavelapsedandthatcuratorsappointedbythecourtswould
undertaketheadministration
8

PIL McRAE Digest: Responsibility of States (part 2)

The First Co. of Secondary Railways in Russia which had been


sequesteredwasplacedundercuratorshipbyorderoftheDistrictCourt
of TallinnHospital. It does not appear that any general meeting of this
company was held and it was even said that a meeting was held in
Latvia.Thatatthismeetingtheboardwasinstructedtotakenecessary
steps to reacquire possession of and to operate the property of the
companyinLithuaniaandPoland.
On August 1923, a law was promulgated in Estonia declaring that the
concession of the First Company of Secondary Railways in Russia all
railwaysofthiscompanyintheterritoryoftheEstonianRepublicshallbe
boughtoutandbecomepropertyoftheTreasury.
But then the next thing that happened was that the Estonian Govt
authorizedaholdingofthemeeting.Itproceededtoreviseandamend
the statutes in accordance with Estonian law and with a view to the
exerciseofthepowersthenceforwardtobeenjoyedbytheCompanyin
Estonia.ChangedthenameofthecompanyintoEsimeneforshort.
A general meeting was then held in Tallinn authorizing the board of
directorstosellthelinesituatedinLithuaniaandthelinesinLatviaand
Poland. Another general meeting was held to which particular
considerationwasgiventothequestionofPanevezysSaldutikisrailway.
A request was then sent on behalf of the board of Esimene to the
LithuanianGovtaskingittogiveinstructionsforthenecessarystepsto
be taken for the handling over of the PanevezysSaldutiskis line to its
legal owners. It does not appear that any answer was made to this
petition and several years elapsed in the course of which several more
petitionsweremade.
On November 1931, a memorandum accompanied by a petition from
the board of Esimene was transmitted to the Lithuanian Govt stating
that former Russian company transformed into an Estonian company
withthesametitlesandaccordinglyitclaimedfaircompensationforthe
Panevezysline,whichbelongedtoitofwhichithadbeendeprived.
OnJanuary1933,theLithuaniangovtreferredtoitscouncilofstate,the
questionwhethertheEsimenecompanywasjustifiedinputtingforward
aclaimagainsttheLithuanianGovtinrespectofthePanevezysrailway.
Thereplywasinthenegative.TheLithuaniandeniedtheirclaimandsaid
thatitnolongerexisted.

DeanCandelaria1213

Negotiations continued for the purchase by the Lithuanian Govt. The


Lithuanian Govt said that it was a matter of their jurisdiction and a
matterofcivillaw.
The Estonian Govt renewed its representations the dispute stating the
question of recognition of the Esimene as entitled to the Russian
CompanyandonthequestionofjurisdictionoftheLithuanianCourts.It
also argued that there had been a violation of the Commercial
ConventionbetweenEstoniaandLithuaniaanddenialofjustice.
LithuanianGovtrepliedthatitcouldnotentertaintheEstonianclaim.
TheEstonianGovtinformedtheLithuanianGovtthatitintendedtobring
the case before the Permanent Court of International Justice. The
Lithuanian govt replied that the friendly relations between the two
states might make it possible to reach a friendly settlement of the
dispute should the Esimene not win its case before the Lithuanian
Courts.

Issue:WONEstioniangovtshouldhavefirstexhausteditsremediesinLithuanian
CourtsandnotautomaticallymoveituptotheICJ?
HeldandRatio:Theyshouldveexhaustedtheirremediesfirst.

The rule on international law on the first Lithuanian objection is based


thatintakingupthecaseofoneofitsnationals,resortingtodiplomatic
action or international judicial proceedings on his behalf, a state is in
reality asserting its own right, the right to ensure in the person of its
nationalsrespectfortherulesofinternationallaw.
TheLithuanianagentisthereforerightinmaintainingthatEstoniamust
prove that at the time when the injury occurred which is alleged to
involve international responsibility of Lithuania the company suffering
theinjurypossessedEstoniannationality.Thisisbecausethegroundson
whichLithuaniadisputesEstoniasrighttotakeupthecaseonbehalfof
the company that the claim lacks national character, cannot be
separatedfromthoseonwhichLithuaniadisputesthecompanysalleged
righttothePanevezysSaldutikisrailway.
ThesecondLithuanianobjectionisbasedonthenonobservancebythe
Estoniangovtoftheruleofinternationallawrequiringtheexhaustionof
remediesof internationallaw requiring the exhaustion of the remedies
afforded by municipal law. In principle, the property rights and
contractualrightsofindividualsdependineverystateonmunicipallaw
and fall therefore more particularly within the jurisdiction of municipal
9

PIL McRAE Digest: Responsibility of States (part 2)

tribunals.ThequestionastowhetherornottheLithuaniancourtshave
jurisdictiontoentertainaparticularsuitdependsonLithuanianlawand
isonewhichtheLithuaniancourtsalonecanpronounceafinaldecision.
Until it has been clearly shown that Lithuanian courts have no
jurisdictiontoentertainasuitbytheEsimenecompanyastoitstitleto
the PanevezysSaldutiskis railway, the court cannot accept the
contentionoftheEstionianagentthattheruleastoexhaustionoflocal
remediesdoesnotapply.
Alsotheruleofinternationallawastoexhaustionoflocalremedieshas
neverbeenheldtorequirethataclaimantshouldbeboundtoinstitute
proceedings on a point on which the highest court has already given a
decision.
Important to note that the Estonian Company has not instituted any
legal proceedings before the Lithuanian Courts in order to establish its
titletothePanevezysSaldutikisrailway.
Thecourtthendeclaresthattheobjectionregardingthenonexhaustion
oftheremediesaffordedbymunicipallawiswellfoundedanddeclares
thattheclaimpresentedbytheEstonianGovtcannotbeentertained.

waslaterextraditedtotheU.S.,wherehewasheldataninternmentcampuntil
theendofthewar.AllhispossessionsinGuatemalawereconfiscated.Afterhis
release,helivedouttherestofhislifeinLiechtenstein.
LiechtensteinofferedNottebohmprotectionagainstthe government of
Guatemala and sued Guatemala in the International Court of Justice. Basically,
LiechtensteinissayingthatbecauseofNottebohmsnaturalization,Liechtenstein
isentitledtoclaimfromGuatemalainhisbehalf.
However,thegovernmentofGuatemalaarguedthatNottebohmdidnot
gainLiechtensteincitizenshipforthepurposesofinternationallaw.

ISSUE:
The issue here is the admissibility of Liechtensteins application but in
ordertodeterminethis,thequestionwhichtheICJneedstoansweriswhether
thenationalityconferredonNottebohmbyLiechtensteinthroughnaturalization
canbevalidlyinvokedagainstGuatemala.

HELD:NO

5. NottebohmCase(Liechtensteinv.Guatemala)(RK)
Liechtenstein claims restitution and compensation on the ground that
Guatemala had acted towards the person and property of Mr. Friedrich
Nottebohm (naughty bum), a citizen of Liechtenstein, in a manner contrary to
internationallaw.

FACTS:
NottebohmwasborninGermany,andwasaGermancitizen,althoughh
elivedinGuatemalasince1903,andconductedaprosperousbusinessthere,but
never became acitizen ofGuatemala.In 1939,he appliedto becomea citizenof
Liechtenstein.
Theapplicationwasapprovedeventhougharequirementwasthat he
be in residence there for at least 3 years, but there was an exception and he
becameacitizenofLiechtenstein.
When hetried toreenter Guatemala in1943, he was refused entry
(probably because of his original German citizenship and becauseofWWII).He
DeanCandelaria1213

Noproofwasadduced that Guatemala has recognized the naturalization of


Nottebohm (in which case Guatemala would have been ESTOPPED from
denying).
So, the ICJ had to determine whether the act of granting nationality by
Liechtenstein directly entails an obligation on the part of Guatemala to
recognize its effect, namely, Liechtensteins right to exercise its protection.
(NO)
Although the Court stated that it is the sovereign right of all states to
determine its own citizens and criteria for becoming one in municipal law,
suchaprocesswouldhavetobescrutinizedontheinternationalplanewhere
the question is of diplomatic protection. (in other words, yes, citizen si
Nottebohmaccordingtoyourlaw,peroyouareclaiminghisprotectionand
seekingreparationagainstGuatemala,andthisisgovernedbyIntllaw)

The Court upheld the principle ofeffective nationality, (later on termed as


theNottebohmprinciple) where the national must prove a meaningful
connectiontothestateinquestion.:>
o Different factors to consider include: habitual residence, centre of
interests,familyties,participationinpubliclife,attachmentshownby
himforagivencountry
10

PIL McRAE Digest: Responsibility of States (part 2)


IthasbeenapracticeofStatestorefrainfromexercisingprotectionin
favour of a naturalized person when the latter has, in fact, by his
prolonged absence, severed his links with what is no longer for him
anythingbuthisnominalcountry.
THUS,nationalitymustcorrespondtothefactualsituation
o Essential Facts Why Nottebohm failed to establish meaningful
connectiontoLiechtenstein:
Germannationalfromtimeofhisbirth
Alwaysretainedconnectionswithfamilymember
HadbusinessconnectionswithGermany
Germany was at war for more than a month when he applied
for naturalization and there was nothing to show that he was
motivated by any desire to dissociate himself form the
governmentofGermany
He settled in Guatemala for 34 years and had carried on
activities there prior to the war. He returned there after his
naturalization until his removal as a result of war measures in
1943. He subsequently tried to return there but Guatemala
refusedadmission.
INCONTRAST,hisconnectionwithLiechtensteinwasextremely
tenuous.
No settled abode, no prolonged residence, his visit there was
transientincharacter.Hehadnointentionofsettlingthere.He
returnedtoGuatemalashortlyafternaturalization.
NoevidencealsoofanyeconomicinterestinLiechtenstein.

Basically,foraclaimofaStateinbehalfofanaturalizedcitizentoprosper,
there must be a meaningful connection between the State and the
Naturalizedcitizen.Meaningfulconnectionisaquestionoffactanddecided
onacasetocasebasis.

Thus,theclaimsubmittedbytheGovernmentofthePrincipalityofLiechtenstein
isInadmissible.

DeanCandelaria1213

6. Case Concerning the Barcelona Traction, Light and Power


Company,Ltd(RK)
ProceduralHistory:
Action

for

damages

for

the

expropriation

of

corporation.

Overview:
Belgium (P) brought an action for damages against Spain (D) on the
ground that its nationals as shareholders of the Barcelona Traction Co.,
incorporatedandregisteredinCanada,hadbeenseriouslyharmedbyactionsof
Spain(D)resultinginexpropriation.
The Barcelona Traction, Light, and Power Co. was incorporated and
registered in Canada for the purpose of developing and operating electrical
powerinSpain(D).
After the Spanish Civil War, the company was declared bankrupt by a
Spanishcourtanditsassetswereseized.
After the Canadian interposition ceased, Belgium (P) brought an action
for damages against Spain (D) for what it termed expropriation of the assets of
theTractionCo.onthegroundthatalargemajorityofthestockofthecompany
wasownedbyBelgian(P)nationals.
Spain (D) raised the preliminary objection that Belgium (P) lacked
standing to bring suit for damages to a Canadian company.

Issue:
Does the state of the shareholders of a company have a right of
diplomatic protection if the state whose responsibility is invoked is not the
nationalstateofthecompany?

Outcome:
No. In order for a state to bring a claim in respect of the breach of an
obligation owed to it, it must first establish its right to do so. This right is
predicated on a showing that the defendant state has broken an obligation
toward the national state in respect of its nationals. In the present case it is
thereforeessentialtoestablishwhetherthelossesallegedlysufferedbyBelgian
(P)shareholdersinBarcelonaTractionweretheconsequenceoftheviolationof
obligationsofwhichtheyarebeneficiaries.

11

PIL McRAE Digest: Responsibility of States (part 2)


Inthepresentstateofthelaw,theprotectionofshareholdersrequires
that recourse be had to treaty stipulations or special agreements directly
concludedbetweentheprivateinvestorandthestateinwhichtheinvestmentis
placed.Barringsuchagreements,theobligationowedistothecorporation,and
only the state of incorporation has standing to bring an action for violations of
such an obligation. Nonetheless, for reasons of equity a theory has been
developed to the effect that the state of the shareholders has a right of
diplomatic protection when the state whose responsibility is invoked is the
national state of the company. This theory, however, is not applicable to the
present case, since Spain (D) is not the national state of Barcelona Traction.
Barcelona Traction could have approached its national state, Canada, to ask for
itsdiplomaticprotection.

Barcelona Traction is a company incorporated in Canada with a significant


number of Belgium shareholders. It conducted business in Spain thru some
subsidiarycompanies.ThesesubsidiariesweredeclaredbankruptinSpain.

Canadaeventuallydeclaredthecompanybankruptaswell.

BelgiumsuddenlychallengedthelegalityoftheactionofSpanishGovernment
indeclaringthecompanybankruptcausingprejudicetoitscitizens.

Issue:
W/NBelgiumhasjusstandi?NO
Ratio:

Municipal law has always considered that corporations and its stockholders
separate entities. And then International Law has only recognized the
nationalityofthecompanytointerveneonbehalfofit.

The state of a shareholders corporation has a right of diplomatic


protection only when the state whose responsibility is invoked is the national
stateofthecompany.

The Nationality of the the company is Canadian (it was incorporated there,
and its principal office is there), not Belgian. It is irrelevant that there are
Belgian shareholders. Only Canada can intervene in behalf of the
corporation.Canadahasa'genuineconnection'withthecorporation.

Analysis:

JustbecauseCanadadidnotexercisethis'right',thereisnorationaletoallow
Belgiumtotakeover.Theremustexistalegalbasisforastatetointervenein
behalfofacorporation.

Fortheabovereasons,theCourtisoftheopinionthatBelgium(P)lacks
standingtobringthisaction.

Rule:

The Restatement of the Foreign Relations Law of the United States.


185,statesthatfailureofastatetopayjustcompensationforthetakingofthe
property of an alien is wrongful under international law, regardless of whether
thetakingitselfisconceivedaswrongful.Suchawrongfultakingischaracterized
eitherastortiousconductorasunjustenrichment

8. BancoNacionalDeCubav.Sabbatino(RC)
Topic:ActofStateDoctrine
Facts:

US enacted a law that basically decreased the allowable import of Cuban


sugar/products.Cubathoughtthiswasanactofaggressiononthepartofthe
US, so the former adopted a policy that targeted Americanowned
companiesandallowedfortheforcibleexpropriationofsuch.

Acompany,CAV(CompaniaAzucareraVertientesCamagueydeCuba)owned
by American citizens was affected by this policy implemented by the
PresidentofCuba.

CAV had previously had a contract to ship sugar to New York. The
contract/sugarwasforciblyexpropriatedCubaandthethebillsofexchange
evidencingthetransactionwasassignedtoBancoNational.

7. BarcelonaTraction:TheJusStandiofBelgium(RC)
Topic:jusstandiofState,NottebohmCaseisinapplicable
Facts:

NottebohmcaseistheonewiththeGermanguywhoappliedforcitizenship
with Liechtenstein to avoid some tax laws in Guatemala. In this case the
"genuine link" theory was applied. (the article calls this case impertinent, I
don'treallygettheconnectionthough,itwasjustmentionedinthearticle)

DeanCandelaria1213

12

PIL McRAE Digest: Responsibility of States (part 2)

WhenthesugararrivedandthebillswerepresentedtoUSbuyer.Thelatter
refusedtopay.SoitwentbeforetheUScourts.

Issue:
W/N the Cuban policy is against the principles of IL? Yeah... but we shouldn't
judge
W/NtheUSCourtscanoverturnsuchpolicyandcompeltheequaltreatmentof
Americans?NO

This law says that the US will withdraw any assistance to foreign governments
whenthey:
nationalize or expropriate or seize ownership of control property owned by US
citizenorcorporationwith50%USownership
takesstepstorepudiateornullifycontractsownedbyUScitizenorcorporation
with50%USownership

impose discriminatory taxes or other extractions/restrictions on properties or


interestsownedbyUScitizenorcorporationwith50%USownership

Ratio:

***BasicallyexactlywhatCubawiththeCAVcompany.

TheActofStateDoctrinetellsusthateverysovereignstateshouldrespectthe
acts done by another sovereign state within its territory. This is ultimately
rooted in the principle that all states are equal and that they exercise
jurisdiction over their territory. Corollary, the judiciary should not get
involved in questions best answered by executive or legislative prerogative
andarebestaddressedbyforeignpolicy.

Admittedly, the forcible expropriation of Americanowned companies is


abhorrent to US law and values. But Cuba cannot be held to the same
standards.ItisforthebestthattheActofStateDoctrinebeobservedinthe
instantcase.

Petitioner:AlfredDunhillofLondon,Inc.

DISSENTOFJUSTICEWHITE(Candeincludeditinthereading):

TheUSshouldnotfollowblindlytheActofStateDoctrine.Thereisnorulein
ILthatitshouldstrictlyfollowed.

More importantly, there is a blatant violation of International Law since the


Cubanpolicyisclearlyretaliatory(itwasdoneisresponsetotheUSdecrease
of allowable Cuban imports) and discriminatory (it only targeted USowned
companies).Thereareinternationalstandardsagainstthis.

10. AlfredDunhillv.Cuba(JG)
TOPIC:InternationalClaims;ActofStatedoctrine
96S.Ct.1854(1976),425U.S.682,48L.Ed.2d301
Respondents:RepublicofCuba,etal.
Ponente:White,J.
FACTS:

9. ForeignAssistanceAct(RC)
Theyeartheabovedecisionwaspassed,theUScameupwiththislaw.

Instead of directly addressing the issue, the US basically cut all ties with Cuba
aftertheBancoNationalincident.
DeanCandelaria1213

In 1960, the Cuban Government confiscated Cuban corporations which


exportedHavanacigarstoothercountries.
o U.S.companiesDunhill,Saks&Co.(Saks)andFaber,Coe&Gregg,Inc.
(Faber) were the three principal importers of cigars from the Cuban
corporations.
Agents of the Cuban Government named interventors took possession of
andcontinuedtooperatethebusinessoftheseizedCubancorporations.
o They continued exporting cigars to foreign purchasers, including
Dunhill,Saks,andFaber.
In suits between the former owners of the Cuban companies and the
American importers, the Cuban interventors and the Republic of Cuba
wereallowedtointervene.Ontheassumptionthattheinterventorswere
entitled to collect the accounts receivable of the Cuban companies, the
Americanimportersmistakenlypaidtheinterventorssumsofmoney.
The former owners then claimed title to and demanded payment of these
accounts.
13

PIL McRAE Digest: Responsibility of States (part 2)

TheDistrictCourtheldthat:
o Withrespecttotheshipmentsmadeafterthedateofintervention,
the interventors were accordingly entitled to collect from the
importersallamountsdueandunpaid.
o Astotheaccountsowingatthetimeoftheintervention,theformer
ownerswereentitledtocollectthemfromtheimporters.
ThisisbecausetheUnitedStatescourtswillnotgiveeffect
to foreign government confiscations without compensation
ofpropertylocatedintheUnitedStates,andthesitusofthe
accountsreceivablewaswiththeimporterdebtors.
Hence, the importerdebtors had mistakenly paid the sums
ofmoneytotheinterventorsinthebeliefthattheywere
fully discharging trade debts in the ordinary course of their
business.
Sincetherewasamistakeinpaymentbytheimporters,thelatterclaimsthat
theyareentitledtorecoverthesepaymentsfromtheinterventorsbyway
ofcounterclaimandsetoff.
o Theinterventorsclaimthattheirrefusaltopaytheobligationwas
anactofstate,whichshallnotbequestionedinothercourts.
TheDistrictCourtheldthat:
o First,thesitusoftheobligationwasdeemedsituatedintheU.S.and
hence remained unaffected by any confiscatory act by the Cuban
Government.
o Second,nothinghadoccurredwhichqualifiedasanactofstate.
The importers were accordingly held entitled to set off their mistaken
payments to the interventors for preintervention shipments against the
amountsduefromthemfortheirpostinterventionpurchases.
o Faber and Saks, because they owed more than the interventors
wereobligatedtoreturntothemweresatisfiedcompletelybythe
righttosetoff.
o ButDunhillwasentitledtomorefromtheinterventors.
ContrarytotheDistrictCourt,theCourtofAppealswasoftheviewthatthe
mistaken payments by the importers to the interventors gave rise to a
quasicontractualobligationtorepaythesesums.IthadasitusinCuba,and
hadbeenextinguishedbyaconductthatwasdeemedtobeanactofstate.
Hence, the act of state doctrine was said to bar the affirmative judgment
awardedtoDunhilltotheextentthatitsclaimexceededitsdebt.
o Hence,thispetitionforcertiorarifiledbyDunhill.

DeanCandelaria1213

ISSUE/HELD:
WhetherthestatementbycounselfortheRepublicofCubaconstitutedanactof
state. NO. The statement that Dunhill cannot recover mistaken payments by
wayofsetoffisnotanactofstate.

RATIO:

The concept of an act of state should not be extended to include the


repudiation of a purely commercial obligation owed by a foreign
sovereignorbyoneofitscommercialinstrumentalities.
Repudiationsbyaforeignsovereignofitscommercialdebtsshouldnot
be considered to be acts of state since they are commercial, and not
public,innature.
o The acts arising out of the conduct by Cubas
agents/interventors in the operation of cigar businesses for
profitwasnotanactofstate
Theyarenotpublicandsovereignactsorthosecarried
outintheexerciseofgovernmentalauthority.
Therestrictivetheoryofsovereignimmunitywasappliedinthiscase.
o Itsuggeststhatestablishedrulesregardingcommercialdealings
of private parties should be applied to the commercial
transactionsofsovereignstates.
o In their commercial capacities, foreign governments do not
exercise powers peculiar to sovereigns. Instead, they exercise
onlythosepowersthatcanalsobeexercisedbyprivatecitizens.

11. ButtesGasandOilCo.v.Hammer(JG)
TOPIC:ActsofState
[1981]3W.L.R.787(H.L.)
Petitioner:ButtesGas&OilCo.andAnother
Respondents:HammerandAnother

FACTS:

Threestates,theEmiratesofSharjah,UmmAlQaiwain(UAQ),andtheState
ofIranareinvolvedinthiscase.
14

PIL McRAE Digest: Responsibility of States (part 2)

TheyarelayingclaimoncertainportionsoftheAbuMisa,whichisaportion
oftheArabianGulf.
o ThewatersoftheArabianGulfarelessthan200metersindepth,and
so potentially have continental shelf status of some coastal state or
states.
o The Gulf contains a number of islands and there may be conflicting
claimswithregardtotheboundarylines.
TwoCalifornianoilexplorationcorporationsweregrantedoilconcessionsin
theGulf.
o One was granted by the ruler of UAQ to Occidental (defendants),
andtheothertoButtes(plaintiffs)bytherulerofSharjah.
o Theareaindisputewasrichinoil.
It is being contended by Occidental and Dr. Hammer (defendants) that the
grant given to Buttes was unlawful since it was by virtue of a backdated
decreemadebytheRulerofSharjah.
o In the decree, it was declared that the territorial sea of Sharjah
would be extended to 12 miles (from an original width of 3 miles)
from the baselines around its coasts and islands, by virtue of
Sharjahsrightsoverthecontinentalshelf.
o This backdated decree allowed the Emirates of Sharjah to obtain
theoilbearingdepositstherefrom.
Occidental and Dr. Hammer allege that Buttes committed conspiracy with
Sharjahandinducedthelattertobackdatethedecreeinordertowrongfully
andfraudulentlymanipulatethegrantingoftheconcessionairetoButtes,to
defraud,cheatandcauseinjurytoOccidental.
Thereafter, UAQ terminated the concession it granted to Occidental, the
latternowhavingnomorerightstoexploitthedeposits.
In an action for damages against Buttes, Occidental alleges that the
agreementsamongthethreestateswhichdeterminedtheirboundariesand
interestsoverthedisputedareaareunlawfulandvoid.
Fortheirpart,ButtesandMr.Boretasubmitthefollowingargumentsthat:
o Thedoctrineofsovereignimmunityapplies,insofarasthisexcludes
actions concerning property which is in the ownership, possession
or control of a foreign sovereign state, or in which a foreign state
claimsaninterest;and
o TheEnglishcourtswillnotentertainactions:

DeanCandelaria1213

Requiring the interpretation of the nature of obligations


arising under transactions between foreign sovereign
states;or
Questioning the validity or effectiveness of foreign
legislation;or
Examining the validity of, or motives for, acts of foreign
sovereignstatesintheirinternationalrelations.
Inanswertothese,thecontentionsofOccidentalincludethefollowing:
o There is no absolute rule forbidding English courts from entertaining
questionsrelatingtoforeignland;
o There is no absolute rule forbidding English courts from sitting in
judgmentuponorinquiringintothevalidityornatureofaforeignlaw;
o Thereisnogeneraldoctrineofactofstatewhichcanbeappliedto
thefactsofthepresentcase;and
o Thedoctrineofsovereignimmunityhasnoapplication.

ISSUE/HELD:
Whetherornottheactofstatedoctrineapplies,suchthattheEnglishcourtscan
notexercisejurisdictionovertransactionsofforeignsovereignstatesYES.There
existsinEnglishlawamoregeneralprinciplethatthecourtswillnotadjudicate
uponthetransactionsofforeignsovereignstates.

InDukeofBrunswickv.KingofHanoverthecourtheldthattherearetwo
important elements: (1) sovereign immunity ratione personae; and (2)
immunityfromjurisdictionrationemateriae.
o It is the second that is relevant; it clearly states that the courts in
England will not adjudicate upon acts done abroad by virtue of
sovereignauthority.

InUnderhillv.HernandeztheUSSupremeCourtheldthat:
Every sovereign state is bound to respect the independence of every
other sovereign state, and the courts of one country will not sit in
judgmentontheactsofthegovernmentofanotherdonewithinitsown
territory.Redressofgrievancesbyreasonofsuchactsmustbeobtained
through the means open to be availed of by sovereign powers as
betweenthemselves.

15

PIL McRAE Digest: Responsibility of States (part 2)

Itisawellestablishedprincipleoflawthatthetransactionsofindependent
states between each other are governed by other laws than those which
municipalcourtsadminister.(Cookv.Sprigg)
To permit the validity of the acts of one sovereign state to be reexamined
and perhaps condemned by the courts of another would very certainly
imperil the amicable relations between governments and vex the peace of
nations.(Oetjenv.CentralLeatherCo.)

DeanCandelaria1213

16

RESPONSIBILITYOFSTATES
ResponsibilityforActsAffectingIndividuals
1. Marcosv.Manglapus(JG)
Marcosv.Manglapus(I)
Treaties/Laws:

TheUniversalDeclarationofHumanRights
TheInternationalCovenantonCivilandPoliticalRights
The1987Constitution

G.R.No.:88211September15,1989
Petitioner:FerdinandE.Marcos,ImeldaR.Marcos,FerdinandR.Marcos,Jr.,IreneM.
Araneta, Imee Manotoc, Tomas Manotoc, Gregorio Araneta, Pacifico E. Marcos,
Nicanor Yniguez, and Philippine Constitution Association, represented by its
President,ConradoF.Estrella
Respondents: Honorable Raul Manglapus, Catalino Macaraig, Sedfrey Ordonez,
Miriam DefensorSantiago, Fidel Ramos, Renato De Villa, in their capacity as
Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration
Commissioner,SecretaryofNationalDefenseandChiefofStaff,respectively
Ponente:Cortes,J.

FACTS:

InFebruary1986,MarcoswasoustedfrompresidencybymeansofthePeople
Power.
o HewasforcedintoexileinHawaii.
After 3 years, Marcos, now dying, prays that he and his family be allowed to
returntothecountry.
Aquino barred the Marcoses from returning due to possible threats and
followingsuperveningevents:
o FailedManilaHotelcoupin1986ledbyMarcosleaders
o Channel7takenoverbyrebelsandloyalists
o PlanofMarcosestoreturnwithmercenariesabroadacharteredplaneofa
Lebanesearmsdealer
o Honasansfailedcoup
o Communistinsurgencymovements
o SecessionistmovementsinMindanao
o Devastatedeconomydueto
Accumulatedforeigndebt

PlunderofnationbyMarcosandhiscronies
Petitioners
1. Filed a petition for mandamus and prohibition to order respondents to
issue them travel documents and prevent implementation of the
PresidentsdecisiontobarMarcosesfromreturning.
2. Arequestioning:
a. IfthepresidenthasthepowertobarthereturnofMarcoses.
i. Theyaskifsuchisapoliticalquestion.
b. Assuming that the President has the power to bar the return of the
Marcoses
i. Is there a clear and present danger to national security, public
safetyorpublichealth?
ii. Ifso,wastheredueprocess?
iii. Is the Presidents determination (that the return of former
PresidentMarcosandhisfamilyisaclearandpresentdangerto
national security, public safety or public health) a political
question?
iv. HavetherespondentsestablishedthattheCourtmayinquireas
towhetherthereturnofformerPresidentMarcosandhisfamily
isaclearandpresentdangertonationalsecurity,publicsafetyor
publichealth?
3. Areclaimingthat:
a. Such act deprives them of their right to life, liberty, and property
withoutdueprocessandequalprotectionofthelaws.
b. Such act deprives them of their right to travel, which according to
Constitutionmayonlybeimpairedbyacourtorder.
c. Eveninternationallawsprovidefortheirrighttoreturn.
i. TheUniversalDeclarationofHumanRightsprovide:
1. Therighttofreedomofmovementandresidencewithin
thebordersofeachstate;
2. Therighttoleaveanycountry,includinghisown,andto
returntohiscountry.
ii. TheInternationalCovenantonCivilandPoliticalRightsprovide:
1. The right to liberty, movement, and freedom to choose
hisresidence;
2. The right to be free to leave any country, including his
own
3. That these shall not be subject to any restrictions except
those which are provided by law and are necessary to
protect national security, public order, public health or

morals, or the rights and freedoms of others, and are


consistentwiththeotherrightsrecognizedinthepresent
Covenant;and
4. That no one shall be arbitrarily deprived of the right to
enterhisowncountry.

Fortheirpart,therespondentsclaimthat
1. Thequestionofwhetherornotpetitionershavetherighttoreturnto
the Philippines and reside therein is a political question which also
involves the States right to security and safety, and which only the
Presidentcandetermine.
2. Thesuperveningeventsmentionedcanendangernationalsecurityand
publicsafety.
3. Article II of the Constitution provides that the State has the duty to
maintainpeaceandorderandprotectrightsofthepeopleandpromote
thegeneralwelfarefortheenjoymentbyallthepeopleoftheblessings
ofdemocracy.

1.

c.
d.
e.
f.
g.

3.

ISSUES/HELD:
1.

2.

Whether or not the right to travel is similar to the right to return to ones
countryNO
a. International laws distinguish the right to freedom of movement and
residence from the right to leave any country including his own and to
returntohiscountry.
b. TherighttoreturntoonescountryisnotguaranteedbytheBillofRights
but only incorporated by virtue of the Constitutions adoption of
internationallawsaspartofthelawsoftheland.
Whether it is within the Presidents power to ban deposed dictators from
returningtothecountry.YES
a. Separationofpowerdictatesthateachdepartmenthasexclusivepowers.
b. AlthoughtheConstitutionprovidesforthetasksofthepresident,thislistis
notexclusive.
i. There are residual and discretionary powers not stated in the
Constitutionwhichincludethepowertoprotectthegeneralwelfareof
thepeople.
ii. As the head of the State, the President is obliged to protect the
people,promotetheirwelfare,andadvancenationalinterest.(Art.II,
Secs.45oftheConstitution).
iii. Residualpowersdictatethat

The President can do anything which is not forbidden in the


Constitution.
2. ItisinevitabletovestdiscretionarypowersonthePresident.
3. The President has to maintain peace not only during times of
emergencybutalsoonthedaytodayoperationoftheState.
Any power not vested on the judicial and legislative bodies belong to the
executive.(Springerv.GovernmentofthePhilippineIslands)
Its a folly to limit governmental powers to what is in the Constitution.
(HolmesDissent)
The rights that the Marcoses are invoking are not absolute. They are
flexibledependingonthecircumstances.
Congress has recognized the Presidents power by coming up with a
resolutiontourgeAquinotoallowtheMarcosestoreturn.
TheConstitutionisasocialcontractbetweenthesovereignwhosurrenders
itspowerstothechosenrulersforthecommongood.

Whether the President in banning the deposed dictator from returning acted
withgraveabuseofdiscretionamountingtolackorexcessofjurisdictionNO
a. There exists factual bases from the pleadings filed by the parties, from
their oral arguments, and the facts revealed during the briefing in
chambers by the Chief of Staff of the AFP and the National Security
Adviser,forthePresidenttoconcludethatitwasinthenationalinterestto
barthereturnoftheMarcosestothePhilippines.
b. It is the duty of the President to take preemptive measures for the self
preservationofthecountryandprotectionofthepeople.

DISPOSITIVE:Wherefore,thePresidentdidnotactarbitrarilyorwithgraveabuseof
discretionindeterminingthatthereturnofformerPresidentMarcosandhisfamily
at the present time and under present circumstances poses a serious threat to
national interest and welfare and in prohibiting their return to the Philippines.
PetitionisDismissed.

MARCOSv.MANGLAPUS(II)
Treaties/Laws:

TheUniversalDeclarationofHumanRights
TheInternationalCovenantonCivilandPoliticalRights
The1987Constitution

G.R.No.:88211October27,1989

Petitioner:FerdinandE.Marcos,ImeldaR.Marcos,FerdinandR.Marcos,Jr.,IreneM.
Araneta, Imee Manotoc, Tomas Manotoc, Gregorio Araneta, Pacifico E. Marcos,
Nicanor Yniguez, and Philippine Constitution Association, represented by its
President,ConradoF.Estrella

b.

Respondents: Honorable Raul Manglapus, Catalino Macaraig, Sedfrey Ordonez,


Miriam DefensorSantiago, Fidel Ramos, Renato De Villa, in their capacity as
Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration
Commissioner,SecretaryofNationalDefenseandChiefofStaff,respectively

c.

d.

FACTS:

InSeptember28,1989,MarcosdiedinHonolulu.
Aquino made a statement to the effect that the remains of Marcos will not be
allowedtobebroughttothecountryintheinterestofthesafetyofthosewho
willreactconflictinglytothedeathofMarcosandforthetranquilityofthestate
andorderofthesociety.
This will hold until the government, whether present or succeeding, decides
otherwise.
On October 2, 1989, petitioners filed a Motion for Reconsideration with the
followingarguments:
o Barringtheirreturnwoulddenythemtheirinherentrightascitizensto
return to their country of birth and all other rights guaranteed by the
ConstitutiontoallFilipinos
o The President has no power to bar a Filipino from his own country; if
shehas,sheactedarbitrarily.
o Thereisnobasisforbarringtheirreturn.

ISSUE/HELD: Whether or not the petitioners should be allowed to return to the


countryNO
1.
2.

3.

Thepetitionersfailedtoshowanycompellingreasontowarrantreconsideration.
ThedeathofMarcos,althoughitmaybeviewedasasuperveningevent,hasnot
changedfactualscenarioduringthetimetheCourtrendereditsdecision.
a. Thethreatstothegovernmentarestillpresent.
b. Mrs. Marcos even made a statement claiming that it is Mr. Marcos, not
Mrs.Aquino,whoisthelegalPresidentofthePhilippines,anddeclared
thatthemattershouldbebroughttoallcourtsoftheworld.
ThePresidenthasunstatedresidualpowersimpliedformthegrantofexecutive
power.
a. Enumerations are merely for specifying principal articles implied in the
definition, leaving the rest to flow from the general grant of executive

power, interpreted in conformity with other parts of the Constitution.


(Hamilton)
The Executive, unlike Congress, can exercise power form sources not
enumeratedsolongasnotforbiddenbytheconstitutionaltext.(Myersv.
US)
Thisdoesnotamounttodictatorship.The1973Constitutionpursuantto
Amendment No. 6 expressly granted Marcos the power of legislation,
whereasthe1987ConstitutiongrantedAquinowithimpliedpowers.
It is within Aquinos power to protect and promote the interest and
welfareofthepeople.Sheisboundtocomplywiththatdutyandthereis
no proof that she acted arbitrarily or with grave abuse of discretion
amountingtolackorexcessofjurisdiction.

DISPOSITIVE:MotionforReconsiderationisdeniedforlackofmerit.
DeanCandesnotes:
Application of the UDHR and ICCPR on the right to return of the Marcoses form
Hawaii even if the Bill of Rights did not specify this right. However, the Court held
that the GRP did not act arbitrarily in determining that the return of the Marcoses
underthecircumstancesthenexistingposedaseriousthreattonationalinterestand
welfare.

2. ISAvQuisumbing(CG)
Topic:Discrimination
Petitioner:INTERNATIONALSCHOOLALLIANCEOFEDUCATORS(ISAE)
Respondents: HON. LEONARDO A. QUISUMBING in his capacity as the Secretary of
LaborandEmployment;HON.CRESENCIANOB.TRAJANOinhiscapacityastheActing
Secretary of Labor and Employment; DR. BRIAN MACCAULEY in his capacity as the
Superintendent of International SchoolManila; and INTERNATIONAL SCHOOL,
INC.,respondents.

Summary: IS pays its teachers who are foreignhires, a higher salary than its local
hires, whether the latter are Filipino or not (most are Filipino, but some are
American). It justifies this under the dislocation factor to attract them to teach
here,andtocompensatethemforthesignificanteconomicdisadvantagesinvolved
in coming here. The Teachers Union cries discrimination. Court held that it is
actually discriminatory and the classification was not a reasonable one. Even
according to international law, there must be equal pay for equal work. And it
cannot be said that they are given higher salaries to entice them or compensate

them for their dislocation or limited tenure because they already enjoy benefits
(housing,etc.)notbeingenjoyedbylocalhires.

TheActingSecretaryofLaborfoundthatthesenonFilipinolocalhiresreceived
thesamebenefitsastheFilipinolocalhires:Thecompensationpackagegivento
localhireshasbeenshowntoapplytoall,regardlessofrace.Truthtotell,there
areforeignerswhohavebeenhiredlocallyandwhoarepaidequallyasFilipino
localhires.

TheActingSecretaryupheldthepointofhireclassificationforthedistinctionin
salaryratesforthesamereasonsISgave.

HealsosaidthattheEqualProtectionClauseiscannotbeinvokedastherewasa
reasonable classification based on substantial distinctions and that it applies
equallytoallmembersofthesameclass

Facts:

International School (IS), pursuant to PD 732, is a domestic educational


institutionestablishedprimarilyfordependentsofforeigndiplomaticpersonnel
andothertemporaryresidents

The same decree authorizes IS to employ its own teaching and management
personnelselectedbyiteitherlocallyorabroad

Such personnel being exempt from otherwise applicable laws and regulations
attendingtheiremployment,exceptlawsthathavebeenorwillbeenactedfor
theprotectionofemployees

Issue: WON the act of giving more salaries foreignhires than the localhires cry
discriminationYES

Accordingly, IS hires both foreign and local teachers as members of its faculty,
classifyingintoforeignorlocalhires

Ruling:

TheSchoolgrantsforeignhirescertainbenefitsnotaccordedlocalhires.These
include housing, transportation, shipping costs, taxes, and home leave travel
allowance. Foreignhires are also paid a salary rate twentyfive percent (25%)
morethanlocalhires.

TheConstitution

Article on Social Justice and Human Rights exhorts Congress to "give highest
prioritytotheenactmentofmeasuresthatprotectandenhancetherightofall
peopletohumandignity,reducesocial,economic,andpoliticalinequalities."

TheSchooljustifiesthedifferenceontwo"significanteconomicdisadvantages"
foreignhireshavetoendure,namely:(a)the"dislocationfactor"and(b)limited
tenure.

When negotiations for a new CBA were held on June 1995, IS Alliance of
Educators (ISAE), a legitimate labor union and the collective bargaining
representative of all faculty membersof IS, contested the difference in salary
rates,whicheventuallycausedadeadlockbetweentheparties

The Constitutionspecifically provides that labor is entitled to "humane


conditions of work." These conditions are not restricted to the physical
workplace but include as well the manner by which employers treat their
employees.

The Constitutionalso directs the State to promote "equality of employment


opportunitiesforall."

ThefailureoftheNationalConciliationandMediationBoardtobringtheparties
toacompromisepromptedthe(DOLE)toassumejurisdictionoverthedispute

Thereafter, the DOLE Acting Secretary, Trajano, issued an Order resolving the
parityandrepresentationissuesinfavorofIS

Then DOLE Secretary Quisumbing subsequently denied petitioner's motion for


reconsideration.Thus,petitionernowseeksreliefinthisCourt

ISAE claims that the pointofhire classification employed by the School is


discriminatory to Filipinos and that the grant of higher salaries to foreignhires
constitutesracialdiscrimination.

Similarly, the Labor Codeprovides that the State shall "ensure equal work
opportunitiesregardlessofsex,raceorcreed."

TheSchooldisputestheseclaimsandgivesabreakdownofitsfacultymembers,
numbering38inall,withnationalitiesotherthanFilipino,whohavebeenhired
locallyandclassifiedaslocalhires.

Article 135, for example, prohibits and penalizesthe payment of lesser


compensation to a female employee as against a male employee for work of
equalvalue.

TheCivilCode

The very broad Article 19 of the Civil Code requires every person, "in the
exerciseofhisrightsandintheperformanceofhisduties,[to]actwithjustice,
giveeveryonehisdue,andobservehonestyandgoodfaith."

LaborCode

Article248declaresitanunfairlaborpracticeforanemployertodiscriminatein
regard to wages in order to encourage or discourage membership in any labor
organization.

TheSchoolcannotinvoketheneedtoenticeforeignhirestoleavetheirdomicile
to rationalize the distinction in salary rates without violating the principle of
equalworkforequalpay.

While we recognize the need of the School to attract foreignhires, salaries


should not be used as an enticement to the prejudice of localhires. The local
hiresperformthesameservicesasforeignhiresandtheyoughttobepaidthe
samesalariesasthelatter.

The dislocation factor and limited tenure affecting foreignhires are already
adequately compensated by certain benefits accorded them which are not
enjoyedbylocalhires,suchashousing,transportation,shippingcosts,taxesand
homeleavetravelallowances.

These relations are not merely contractual but are so impressed with public
interest that labor contracts, collective bargaining agreements included, must
yieldtothecommongood

InternationalLaw

International law, which springs from general principles of law,likewise


proscribesdiscrimination.

Generalprinciplesoflawincludeprinciplesofequity,i.e.,thegeneralprinciples
offairnessandjustice,basedonthetestofwhatisreasonable.

The Universal Declaration of Human Rights,the International Covenant on


Economic, Social, and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention against
DiscriminationinEducation,theConvention(No.111)ConcerningDiscrimination
in Respect of Employment and Occupation all embody the general principle
againstdiscrimination,theveryantithesisoffairnessandjustice.

Notably, the International Covenant on Economic, Social, and Cultural Rights,


supra,inArticle7thereof,provides:
TheStatesPartiestothepresentCovenantrecognizetherightofeveryone
to the enjoyment of just and favorable conditions of work, which ensure, in
particular:

WHEREFORE,thepetitionisGIVENDUECOURSE.ThepetitionisherebyGRANTEDIN
PART. The Orders of the Secretary of Labor and Employment dated June 10, 1996
andMarch19,1997,areherebyREVERSEDandSETASIDEinsofarastheyupholdthe
practice of respondent School of according foreignhires higher salaries than local
hires.

3. RepublicvSB(RL)

a.....Remunerationwhichprovidesallworkers,asaminimum,with:
i.....Fair wages and equal remuneration for work of equal value
without distinction of any kind, in particular women being
guaranteed conditions of work not inferior to those enjoyed by
men,withequalpayforequalwork;
xxx.

Theforegoingprovisionsimpregnablyinstitutionalizeinthisjurisdictionthelong
honored legal truism of "equal pay for equal work." Persons who work with
substantially equal qualifications, skill, effort and responsibility, under similar
conditions,shouldbepaidsimilarsalaries.

ThisruleappliestotheSchool,its"internationalcharacter"notwithstanding.

Thereisnoevidenceproved,astotheirdefense,thatforeignhiresperform25%
moreefficientlyoreffectivelythanthelocalhires.

Both groups have similar functions and responsibilities, which they perform
undersimilarworkingconditions.

TOPIC:RightsoftheFilipinosareprotectedunderILduringtheinterregnumperiod.
[G.R.No.104768.July21,2003]
Petitioner:RepublicofthePhilippines
Respondent: Sandiganbayan, Major General Josephus Q. Ramas and Elizabeth
Dimaano
Ponente:CARPIO,J.:

SUMMARY:
AftertheEDSARevolution,Pres.AquinocreatedthePCGG,whichthereafter
created an AFP AntiGraft Board. It investigated various reports of alleged
unexplainedwealthofMaj.Gen.Ramas.Asearchwarrantwasissuedwhichallowed
the authorities to seize items (equipments, money, etc) from Dimaanos house in
Batangas (alleged mistress of Ramas). The PCGG then filed a case in the SB against
RamasandDimaanoforviolationoftheAntiGraftandCorruptPracticesAct.Ramas
andDimaanofiledtheirMTDbasedonRepublicv.Migrino,whichheldthatthePCGG
doesnothavejurisdictiontoinvestigateandprosecutemilitaryofficersbyreasonof

mere position held without a showing that they are subordinates of Marcos. SB
dismissedthecomplaintbutorderedthatthemonies,equipmentetcbereturnedto
Dimaano. It remanded the case to the OMB for appropriate action. PCGG argues
(amongothers)thatthesearchandseizurewaslegalbecausethetwocannotinvoke
theirexclusionaryright,astherewasnoBillofRightsorConstitutioninforceatthe
timeoftheseizure.

The SC held that the ICCPR and the UNDHR remained in force during the
interregnum period. The revolutionary government did not repudiate such
obligations of the Philippines; hence, the respondents rights are protected under
these treaties. Furthermore, the authorities exceeded their authority by seizing
items,whichwerenotparticularlydescribedinthewarrant.

FACTS:(oksnayungsummaryforfacts)

Pres.CoryAquinoissuedEO1creatingthePCGG.
o PCGG is primarily tasked to recover all illgotten wealth of former
Marcos,hisfamilyandcronies.
The PCGG, through Chairman Salonga, created an AFP AntiGraft Board (AFP
Board) tasked to investigate reports of unexplained wealth and corrupt
practicesbyAFPpersonnel,whetherintheactiveserviceorretired.
The AFP Board investigated various reports of alleged unexplained wealth of
respondentMajorGeneralRamas(Ramas).
It issued a Resolution on its findings and recommendation on the reported
unexplained wealth of Ramas, and concluded that a prima facie case exists
against him. It further recommended that he be tried for the violation of the
AntiGraftandCorruptPracticesAct(RA1379).
Someofthefindingsstatedintheresolution:
o HeownsahouseinLaVistaworthP700,000.
o Military equipment/items and communication facilities were found in
the premises of Elizabeth Dimaanos (his alleged mistress, as stated in
theaffidavitsofcertainMilitaryUnits)houseinBatangas.
o The team was also able to confiscate money in the amount of
P2,870,000.00 and $50,000 US Dollars in the house of Elizabeth
Dimaano.
o Sworn statement disclosed that Elizabeth Dimaano had no visible
means of income and is supported by Ramas for she was formerly a
meresecretary.
o Takingintototheevidence,ElizabethDimaanocouldnothaveusedthe
itemsseizedinherhousewithouttheconsentofrespondentasgeneral
oftheAFP.

It is also impossible for Elizabeth Dimaano to claim that she owns the
themoneyforshehadnovisiblesourceofincome.
o ThemoneywasneverdeclaredintheSALNofRamasastheseareallill
gottenandunexplainedwealth.
Thus,PCGGfiledapetitionforforfeitureunderRA1379againstRamas.
BeforeRamascouldanswerthepetition,thenSolGenChavezfiledanAmended
ComplaintnamingtheRepublicofthePhilippines,representedbythePCGG,as
plaintiff and Ramas as defendant. It also impleaded Elizabeth Dimaano
(Dimaano)ascodefendant.
o xxx alleged that Ramas acquired funds, assets and properties
manifestly out of proportion to his salary as an army officer and his
other income from legitimately acquired property by taking undue
advantage of his public office and/or using his power, authority and
influence as such officer of the AFP and as a subordinate and close
associateofthedeposedPresidentFerdinandMarcos.
It also alleged that the AFP Board found reasonable grounds to believe such
allegation and prayed for the forfeiture of Ramas properties, funds and
equipmentinfavoroftheState.
RamasfiledanAnswercontendingthathispropertyconsistedonlyofahousein
La Vista. He denied ownership of any mansion in Cebu City and the cash,
communications equipment and other items confiscated from the house of
Dimaano.
DimaanofiledherownAnsweradmittingheremploymentasaclerktypistinthe
office of Ramas and claimed ownership of the monies, communications
equipment,etcseizedfromherhouse.
ThecasewassetfortrialbyNovemberof1988.
Petitionerfromthenonstartedaskinfordefgermentofhearingduetoitslackof
preparation,absenceofwitnessesanddocuments,amongotherreasons.On
o SB noted that petitioner had already delayed the case for over a year
mainlybecauseofitsmanypostponements.
Ramas and Dimaano eventually filed their MTD based on Republic v. Migrino
which held that the PCGG does not have jurisdiction to investigate and
prosecute military officers by reason of mere position held without a showing
thattheyaresubordinatesofMarcos.
SB dismissed the complaint but ordered that the monies, equipment etc be
returnedtoDimaano.ItremandedthecasetotheOMBforappropriateaction.
AMRwasfiledbutthesamewasdismissed.
o

ISSUES:

st

1 ISSUE: W/N PCGG has Jurisdiction to Investigate Private RespondentsNO


JURISDICTION.
This involves the revisiting of an issue decided by this Court in Cruz, Jr. v.
SandiganbayanandRepublicv.Migrino:(summarizedversion)
o The term subordinate refers to one who enjoys a close association
withformerPresidentMarcosand/orhiswife,similartotheimmediate
familymember,relative,andcloseassociateinEONo.1andtheclose
relative,businessassociate,dummy,agent,ornomineeinEONo.2.
o Itdoesnotsufficethattherespondentisorwasagovernmentofficial
or employee during the administration of former President
Marcos. There must be a prima facie showing that the respondent
unlawfully accumulated wealth by virtue of his close association or
relationwithformerPres.Marcosand/orhiswife.(Emphasissupplied)
Hence,Petitionerhasnojurisdictionoverprivaterespondents.
The PCGG cannot exercise investigative or prosecutorial powers never granted
toit.
o PCGGspowersarespecificandlimited.
o UnlessgivenadditionalassignmentbythePresident,PCGGssoletaskis
onlytorecovertheillgottenwealthoftheMarcoses,theirrelativesand
cronies.
PrivaterespondentsquestionedthejurisdictionofthePCGGbyfilingtheirMTD
as soon as they learned of the pronouncement in Migrino. This case was
decided on 30 August 1990, which explains why private respondents only filed
theirMTDon8October1990.
o Nevertheless, it has been held that the parties may raise lack of
jurisdictionatanystageoftheproceeding.
o Hence,therewasnowaiverofjurisdictioninthiscase.
o Jurisdictionisvestedbylawandnotbythepartiestoanaction.
Consequently,the petition should be dismissed for lack of jurisdiction by the
PCGGtoconductthepreliminaryinvestigation.

rd

3 ISSUE(IMPT!):W/NtheSearchandSeizurewaslegalNOTLEGAL.

nd

2 ISSUE: W/N the Dismissal of the Case is Proper Before Completion of


PresentationofEvidenceYES,dismissalwasproper.

Based on the findings of the SB and the records of this case, the SC finds that
petitionerhasonlyitselftoblamefornoncompletionofthepresentationofits
evidence.
The Sandiganbayan gave petitioner more than sufficient time to finish the
presentationofitsevidence.Itoverlookedpetitionersdelaysandyetpetitioner

ended the longstring of delays with the filing of a ReAmended Complaint,


whichwouldonlyprolongevenmorethedispositionofthecase.
Thus,weholdthattheSandiganbayandidnoterrindismissingthecasebefore
completionofthepresentationofpetitionersevidence.

Petitioner wants the Court to take judicial notice that the raiding team
conductedthesearchandseizurefivedaysafterthesuccessfulEDSArevolution.
o It argues that a revolutionary government was operative at that time
and asserts that the revolutionary government effectively withheld
the operation of the 1973 Constitution which guaranteed private
respondentsexclusionaryright.
o It also argues that the exclusionary right arising from an illegal search
applies only beginning 2 February 1987, the date of ratification of the
1987Constitution.
o Petitioner contends that all rights under the Bill of Rights had already
revertedtoitsembryonicstageatthetimeofthesearch.
o Therefore,thegovernmentmayconfiscatethemoniesanditemstaken
from Dimaano and use the same in evidence against her since at the
time of their seizure, private respondents did not enjoy any
constitutionalright.
SC:Petitionerispartlyrightinitsarguments.
The resulting government was indisputably a revolutionary government bound
by no constitution or legal limitations except treaty obligations that the
revolutionary government, as the de jure government in the Philippines,
assumedunderinternationallaw.
Thecorrectissuesare:
o W/NtherevolutionarygovernmentwasboundbytheBillofRightsof
the1973Constitutionduringtheinterregnum;and
o W/N the protection accorded to individuals under the International
CovenantonCivilandPoliticalRights(Covenant)andtheUniversal
DeclarationofHumanRights(Declaration)remainedineffectduring
theinterregnum.
SC:theBillofRightsunderthe1973ConstitutionwasNOToperativeduringthe
interregnum.
o However,the protection accorded to individuals under the Covenant
andtheDeclarationREMAINEDINEFFECTduringtheinterregnum.

During the interregnum, the directives and orders of the revolutionary


government were the supreme law because no constitution limited the extent
andscopeofsuchdirectivesandorders.
o Thus, during the interregnum, a person could not invoke any
exclusionary right under a Bill of Rights because there was neither a
constitutionnoraBillofRightsduringtheinterregnum.
o To hold that the Bill of Rights under the 1973 Constitution remained
operative during the interregnum would render void all sequestration
ordersPCGGbeforetheadoptionoftheFreedomConstitution.
Duringtheinterregnum,noonecouldvalidlyquestionthesequestrationorders
as violative of the Bill of Rights because there was no Bill of Rights during the
interregnum.
TorulethattheBillofRightsofthe1973Constitutionremainedinforceduring
the interregnum, absent a constitutional provision excepting sequestration
ordersfromsuchBillofRights,wouldclearlyrenderallsequestrationordersvoid
duringtheinterregnum.
o Nevertheless, even during the interregnum the Filipino people
continued to enjoy, under the Covenant and the Declaration, almost
thesamerightsfoundintheBillofRightsofthe1973Constitution.
Therevolutionarygovernment,afterinstallingitselfasthedejuregovernment,
assumed responsibility for the States good faith compliance with the
CovenanttowhichthePhilippinesisasignatory.
o Article 2(1) of the Covenant requires each signatory State to respect
and to ensure to all individuals within its territory and subject to its
jurisdictiontherightsrecognizedinthepresentCovenant.
o UnderArticle17(1)oftheCovenant,therevolutionarygovernmenthad
the duty to insure that [n]o one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or
correspondence.
The Declaration, to which the Philippines is also a signatory, provides in its
Article17(2)that[n]ooneshallbearbitrarilydeprivedofhisproperty.
o AlthoughthesignatoriestotheDeclarationdidnotintenditasalegally
bindingdocument,beingonlyadeclaration,theCourthasinterpreted
the Declaration as part of the generally accepted principles of
internationallawandbindingontheState.
o Thus, the revolutionary government was also obligated under
international law to observe the rights of individuals under the
Declaration.
The revolutionary government did not repudiate the Covenant or the
Declarationduringtheinterregnum.

SufficeittosaythattheCourt considers the Declaration as part of customary


internationallaw,andthatFilipinosashumanbeingsarepropersubjectsofthe
rulesofinternationallawlaiddownintheCovenant.
As the de jure government, the revolutionary government could not escape
responsibility for the States good faith compliance with its treaty obligations
underinternationallaw.
During the interregnum when no constitution or Bill of Rights existed,
directivesandordersissuedbygovernmentofficerswerevalidsolongasthese
officers did not exceed the authority granted them by the revolutionary
government.
o ThedirectivesandordersshouldnothavealsoviolatedtheCovenant
ortheDeclaration.
In this case, the revolutionary government presumptively sanctioned the
warrantsincetherevolutionarygovernmentdidnotrepudiateit.
o The warrant, issued by a judge upon proper application, specified the
itemstobesearchedandseized.
o Thewarrantisthusvalidwithrespecttotheitemsspecificallydescribed
inthewarrant.
However, the Constabulary raiding team seized items not included in the
warrant.
o The search warrant did not particularly describe these items and the
raidingteamconfiscatedthemonitsownauthority.
o The raiding team had no legal basis to seize these items without
showing that these items could be the subject of warrantless search
andseizure.
o Clearly, the raiding team exceeded its authority when it seized these
items.
The seizure of these items was therefore void, and unless these items are
contrabandperse,andtheyarenot,theymustbereturnedtothepersonfrom
whomtheraidingseizedthem.

DISPOSITIVE:WHEREFORE,thepetitionforcertiorariisDISMISSED.Thequestioned
Resolutions of the Sandiganbayan, remanding the records of this case to the
Ombudsmanforsuchappropriateactionastheevidencemaywarrant,andreferring
thiscasetotheCommissioneroftheBureauofInternalRevenueforadetermination
ofanytaxliabilityofrespondentElizabethDimaano,areAFFIRMED.

4. CBEmployeesvBSP(EM)
CentralBankEmployeesAssociation,petitioner
BangkoSentralngPilipinas,andtheExecutiveSecretary,respondents
December15,2004G.R.148208
Puno,J.:

RA7653(TheNewCentralBankAct)tookeffectin1993
o Created the new BSP and abolished the old Central Bank of the
Philippines
In 2001, petitioner CB Employees Association filed a petition against herein
respondentstorestrainthemfromfurtherimplementingthelastprovisionin
Sec.15(c),Art.IIofthislaw
o "..The compensation and wage structure of employees whose positions
fall under salary grade 19 and below shall be in accordance with the
ratesprescribedbyRA6758."
o Theyallegedthatitisunconstitutional

Hestatedthattherewas"actualandrealdifferentiation"

Issue:WONtheprovisoinissueviolatestheEqualProtectionClause
Held:YES

Facts:

TheSG,onbehalfoftheExecutiveSecretary,alsodefendsthevalidityof
theprovision

It made an "unconstitutional cut" between two classes of


employees:(1)BSPofficersorthoseexemptedfromthecoverage
of the Salary Standardization Law (SSL), and (2) rankandfile,
salarygrade19andbelow,orthosenotexemptedfromtheSSL

In essence, NO, BUT the subsequent laws exempting other RankandFile


employees(otherthantheCB)fromtheSSLrendersitviolativeoftheEPC

Ratio:
1.

OnLocalLaw

They argue that this violates the EPC, a classic case of class
legislationwithnosubstantialdistinctions

Theconceptof"relativeconstitutionality"

A statute valid at one time may become void at another time


becauseofalteredcircumstances

Thus, if it becomes arbitrary in its practical operation, its validity


maybeopentoinquiryinlightofchangedconditions

The continued operation and enforcement of the law at the


presenttimeisunreasonableandoppressive

TheEqualProtectionClause

In our jurisdiction, the standard followed in issues of EPC is the


"rationalbasistest"

A statute, while it may nondiscriminatory on its face, may be


grosslydiscriminatoryinitsapplication

Theirsubarguments

Suchprovisowasnotintendedbytheoriginalframersofthelaw

Making such classification defeats the purpose of RA 7653 of


establishing professionalism and excellence at all levels in the
BSP

Enactmentofthelawsexemptingrankandfileemployeesofthe
GSIS, LBP, DBP, and SSS, etc. from the coverage of the SSL made
theprovisoviolativeoftheEPC

GSIS, LBP, DBP, and SSS employees are ALL exempt from the
coverage of the SSL; As such, the rankandfile employees of CB
arediscriminatedupon

If the last proviso at issue in this case is still applied despite


currentcircumstances,itbecomesunconstitutional

Whilesuchexemptionisaprivilege,itbeinggrantedtoothersand
not to the employees in this case is clearly arbitrary and
unreasonable

ResponseofRespondentBSP
o They argue that the proviso is constitutional if construed in harmony
with the other provisions of the same law such as the "fiscal and
administrativeautonomy"oftheBSP
TheDefenseoftheSolicitorGeneral

OnEqualProtectionundertheInternationalLens

U.S.Jurisprudencehasgonebeyondthestatic"rationalbasistest"

Meanshadtobeshown"necessarytoachievestatutoryends"and
not"merelyreasonablyrelated"

extendstoeconomic,social,andculturalrightsundertheICESCR(e.g.
Righttosocialsecurity)

The Burger Court indicated two significant changes in Equal


protection

Invocation of the EPC no longer signals an "extreme


deference" to legislative classifications and a virtually
automaticvalidationofchallengedstatus

Thus, the analysis made in this case, and its conclusion of


unconstitutionality by subsequent operation, are in cadence and in
consonance with the progressive trend of other jurisdictions and
internationallaw

Art.7oftheICESCRguaranteestherightofeveryonetotheenjoyment
of just and [favorable] conditions of work, which ensures, among
others,

The classification must serve important governmental


objectives and must be substantially related to the
achievementofthoseends

OnEqualProtectioninEurope

The European Convention of Human Rights prohibits discrimination of


certaingrounds

Discrimination on the basis of race, sex, and religion are regarded as


groundsthatrequirestrictscrutiny

Remuneration which provides all workers, as a minimum, fair


wagesandequalremunerationforworkofequalvaluewithout
distinctionofanykind

Thus, persons who work with substantially equal qualifications,


skill,effort,andresponsibility,undersimilarconditions,shouldbe
paidsimilarsalaries

OnEqualityunderInternationalLaw

The principle of equality has, and continues to be, recognized under


internationallaw

Nondiscrimination, together with equality before the law, and


equal protection of the law without discrimination, constitute
basicprinciplesofhumanrightsprotection

Aclassificationmaybestruckdownifitspurposeoreffectviolates
therighttoequalprotection

"..ifthechallengetothestatuteispremisedonthedenialofafundamental
humanrights,ortheperpetuationofprejudiceagainstpersonsfavoredbythe
Constitutionwithspecialprotection,judicialscrutinyoughttobemorestrict"

Thefollowingconventionsprohibitdiscrimination

InternationalCovenantonCivilandPoliticalRights(ICCPR)

International Covenant on Economic, Social, and Cultural Rights


(ICESCR)

Thisclassificationinthiscaseisakintoadistinctionbasedoneconomic
classandstatus

International Covenant on the Elimination of all Forms of Racial


Discrimination(CERD)

The Conventionon the Eliminationof allForms of Discrimination


againstWomen(CEDAW)

BSP rankand0file employees merit greater concern from this Court


they represent the politically powerless and they should not be
compwlled to seek a political solution (going to Congress) to their
unequalandiniquitoustreatment

ConventionontheRightsoftheChild(CRC)

5. SecofNatlDefensev.Manalo(NO)

Equalityisalsoenshrinedinalotofregionalinstruments

Petitioner:SecretaryofNationalDefense;Chiefofstaff,AFP

The provisions on equality in international law impose a positive


obligationonStatestotakestepstoeradicateddiscrimination(e.g.Art.
26oftheICCPR)

Defense;Chiefofstaff,AFP

The ICESCR prescribes basic detailed minimum standards ensuring


equalityandnondiscriminationintheemploymentfield

Ponente:CJPuno

The United Nations Human Rights Committee (UNHRC) held that the
provisions on nondiscrimination in the ICCPR go beyond the rights in
the Covenant but also to other civil and political rights, and even

Facts:

Respondent:RaymondandReynaldoManalo
G.R.No.180906/7October2008

CADecisionbeingappealed

1.

TheManalobrothersfiled,on23August2007,aPetitionforProhibition,
Injunction,andTemporaryRestrainingOrder(TRO)againstpetitionersand
theirofficersfromdeprivingthemoftheirrighttolibertyandotherbasic
rights.
TheWritofAmparowasapprovedonAug24,2007andpetitioners
filedMotiontoTreatExistingPetitionasAmparoPetition.

2.

TheCArenderedadecisioninfavoroftheManalobrothersandorderedthe
currentpetitionersto:
TofurnishtheManalosandCAofallofficialandunofficialreports
oftheinvestigationundertakeninconnectionwiththeircase,
exceptthosealreadyonfile.
Toconfirminwritingthepresentplacesofofficialassignmentof
M/SgtHilarioakaRollieCastilloandDonaldCaigas
TocausetobeproducedtothisCourtallmedicalreports,records
andcharts,reportsofanytreatmentgivenorrecommendedand
medicinesprescribed,ifany,tothepetitioners,toincludealistof
medicaland(sic)personnel(militaryandcivilian)whoattendedto
themfromFebruary14,2006untilAugust12,2007withinfivedays
fromnoticeofthisdecision.

Itonatalaga

Feb.14,2006RaymondandReynaldoManalo,brothersand
hereinrespondents,wereabductedbyelementsofthemilitary
(AFPandCitizenArmedForceGeographicalUnitorCAFGU)from
theirhouseinBuholnaMangga,SanIldefonso,Bulacan.

TheabductorswerelookingforacertainBestre.Manalobrotherswere
suspectedofbeingmembersoftheNPA

ThewhiteL300vanwasdrivenbyM/Sgt.RizalHilarioakaRollieCastillo

Thebrotherswererepeatedlybeatenandtorturedandquestionedabout
theirknowledgeoftheNPA.

Sometimeinthethirdweekofdetention,Raymondattemptedto
escape.HediscoveredthattheywereinFortMagsaysay(Palayan,
NuevaEcija).Hewashoweverrecapturedandtortured.Detention
inFortMagsaysaylastedfor3andahalfmonths.

Oneday,RizalHilariotooktheManalobrotherstoPinaud,San
Ildefonso,Bulacanandthenbeatenup.Theyremainedtherefor
oneortwoweeks.
ThenbroughttoSapang,SanMiguel,BulacantomeetMaj.Gen.
JovitoPalparan,CommandingGeneral,7thInfantryDivision.
o Gen.PalparantoldtheManalobrothertotelltheirparents
tonotgotoralliesandhearingsregardingtheir
disappearance.Instead,theyshouldhelpinthecaptureof
Bestre.
o Respondentswerethenbroughttotheirparentshouseto
deliverPalparansmessage.Theirparentsagreedoutof
fear.

ManalobrothersweregivenmedicinenamedAlive.Gen.Palparansaid
thatthiswouldmakethemfeelbetter,buttherealeffectwasdrowsiness
andaheavyfeelingafterwakingup.
After3monthsinSapang,RaymondwasbroughttoCampTecson.Hewas
orderedtocleanoutsidethebarracksoftheArmyRangers.
o MetSherlynCadapan,aUPstudentwhowasalsoabducted,
torturedandrapedbythemilitary.

ReynaldowasbroughttoCampTecsonaweeklater.Othercaptives(Karen
EmpeoandManuelMerino)alsoarrived.
o Allthecaptiveswerechainedeverynight.Theyweretoldthattheir
familieswouldbekillediftheyescaped.
o Cadapan,EmpeoandMerinowouldlateronbekilled.Merino
wouldevenbeburned.
o November22,2006thecaptivesweretransferredtoacampof
the24thInfantryBattalioninLimay,Bataan.Theywerecontinually
beatenandmadetodochores.
o Here,respondentswitnessedhowsoldierskilledanoldman
suspectedofharboringtheNPAandalsoofanAetawhowas
subsequentlyburned.
ThecaptiveswerethenbroughttoZambales,inasafehousenearthesea.
TheywerebroughtbacktoLimayonJune2007byCaigas,thecommander
ofthe24thInfantryBattalion.
June13,2007RespondentswerebroughttoPangasinantofarmtheland
ofCaigas.Here,theystartedtosavetheirearningstoaidintheirescape.
Whentheysaved1000pesos,theywereabletoacquireacellphone.

August13,2007ReynaldoandRaymondManalowereabletoescapeand
boardabusboundforManila.
Therespondentswereabletocorroborateeachothersaffidavits.
Dr.BenitoMolinoalsocorroboratedtheaccountsoftheManalobrothers.
Hespecializesinforensicmedicine.Heconductedamedicalexamonthe
respondents
Aftertheirescape.Thescarsandwoundsofrespondentswereconsistent
withtheiraccountofphysicalinjuriesinflictedonthem.Hefollowedthe
IstanbulProtocolinthemedicalexam.
Petitionersalsosubmittedaffidavits
Gen.PalparanandM/Sgt.Hilariofiledtheiraffidavitslate.
Lt.Col.RubenJimenez,ProvostMarshallandwitnessforthepetitioner,
conductedaninvestigationonMay29,2006,from8amto10pm.
All6persons(CAFGUmembers)implicatedintheabductiondeniedthe
allegation.Theyhadalibis(somewerebuildingachapel,somewerejustat
home)
DiscoveredthatKaBestreisactuallyRolandoManalo,elderbrotherof
therespondents.
Recommendationwasforthedismissalofthecase.

Issue:

WONtheprivilegeofthewritofamparowasproperlygiven

Dispositive:Petitiondismissed.CAdecisionreaffirmed.

AmparoliterallymeansprotectioninSpanish
o Amparothuscombinestheprinciplesofjudicialreviewderived
fromtheU.S.withthelimitationsonjudicialpowercharacteristicof
thecivillawtraditionwhichprevailsinMexico.
o Itenablescourtstoenforcetheconstitutionbyprotecting
individualrightsinparticularcases,butpreventsthemfromusing
thispowertomakelawfortheentirenation
Thisconceptevolvedintothe(1)amparolibertadfortheprotectionof
personalfreedom,equivalenttothehabeascorpuswrit;(2)amparocontra
leyesforthejudicialreviewoftheconstitutionalityofstatutes;(3)amparo
casacionforthejudicialreviewoftheconstitutionalityandlegalityofa
judicialdecision;(4)amparoadministrativoforthejudicialreviewof
administrativeactions;and(5)amparoagrariofortheprotectionof
peasantsrightsderivedfromtheagrarianreformprocess
InLatinAmericancountries,exceptCuba,thewritofamparohasbeen
constitutionallyadoptedtoprotectagainsthumanrightsabusesespecially
committedincountriesundermilitaryjuntas.
InthePhilippines,whilethe1987Constitutiondoesnotexplicitlyprovidefor
thewritofamparo,severaloftheaboveamparoprotectionsare
guaranteedbyourcharter.ThesecondparagraphofArticleVIII,Section1
ofthe1987Constitution,theGraveAbuseClause,providesforthejudicial
powertodeterminewhetherornottherehasbeenagraveabuseof
discretionamountingtolackorexcessofjurisdictiononthepartofany
branchorinstrumentalityoftheGovernment.TheClauseaccordsasimilar
generalprotectiontohumanrightsextendedbytheamparocontraleyes,
amparocasacion,andamparoadministrativo.Amparolibertadis
comparabletotheremedyofhabeascorpusfoundinseveralprovisionsof
the1987Constitution.

Held:

Wasthegrantproper?YES

HistoryoftheAmparoRule

PromulgatedinOctober24,2007.FirsttimethattheSupremeCourt
exerciseditsexpandedpowerinthe1987Constitutiontopromulgaterules
toprotectthep