Beruflich Dokumente
Kultur Dokumente
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judicata, prescription, pacta sunt servanda and estoppel. See Agustin vs.
Edu, where the doctrine of pacta sunt servanda was applied by the Court
relative to the validity of the administrative rule requiring the use of early
warning device, as part of the Vienna Convention on Road Signs and
Signals.
[Note: To these may be added the principle of ex aequo et bono (what is
good and just), provided that the parties to the dispute agree thereto, as
provided in Art. 38 (1), Statut of the International Court of Justice.]
As Secondary Sources:
a) Judicial Decisions, generally of international tribunals, the most
authoritative being the International Court of Justice. They are not really
sources, but subsidiary means for finding what the law is, and whether a
norm has been accepted as a rule of international law. The decision of a
national court may be used depending upon th prestige and perceived
impartiality of the domestic court, not being in conflict with the decisions
of international tribunals, and its admissibility in the forum where it is
cited.
b) Writings of publicists, which must be fair and unbiased
representation of international law by acknowledged authorities in the
field.
2. Interpretation of Art. 38. Although the provision is silent on the question
of whether the three primary sources have the same hierarchic value, by
practice, treaties tak precedence over customs, and customs over general
principles of law, except:
a) The principle of ius coaens: Customary international law which has the
status of peremptory (absolute, uncompromising, certain) norm of
international law. A peremptory norm is a norm accepted and recognized
by the international community of states as a rule, from which no
derogation is permitted and which can be modified onl by a subsequent
norm having the same character.
Examples are slave trade, piracy, and terrorism. See Human Rights Cases
vs. Marcos, where it was held that official torture of prisoners/ dissenters
was a violation of the principle of jus cogens.
C. RELATIONSHIP WITH MUNICIPAL LAW.
1. Monist vs. Dualist. To monists, there is no substantial distinction
between international law and municipal law. But to dualists, the
distinctions lie in that ML is issued by a political superior for observance
by those under its authority, while IL is not imposed but adopted by states
POLITICAL LAW REVIEW | PUBLIC INTERNATIONAL LAW
Executive Order No. 51 (The Milk Code - TMC) was issued by Pres. Aquino
on Oct. 28, 1986 by virtue of the legislative powers granted to her under
the Freedom Constitution.
One of the preambular clauses of TMC the law seeks to give effect to
Article 11 of the International Code of Marketing of Breastmilk Substituttes
(ICMBS), a code adopted by the WHA (World Health Assembly) in 1981.
In 1990, the Philippine ratified the International Convention on the Rights
of the Child. Art. 24 of the instrument mandates that States should take
measure to diminish infant mortality and should ensure that all segments
of society are informed of the advantages of breastfeeding.
From 1982 2006, the WHA adopted several resolutions to the effect that
breastfeeding should be supported, promoted and protected, hence, it
should be ensured that nutrition and health claims are not permitted for
breastmilk substitutes.
May 15, 2006 DOH issues the assailed RIRR (Revised Implementing Rules
and Regulations of E.O. 51 or A.O. No. 2006-0012) which was to take effect
on July 7, 2006. The RIRR imposes a ban on all advertisements of
breastmilk substitutes
June 28, 2006 Petitioner filed the present Petition for Certiorari and
Prohibition with Prayer for the Issuance of a TRO or Writ of Preliminary
injunction.
August 15, 2006 the Court issued a Resolution granting the TRO,
enjoining the respondents from implementing the assailed RIRR.
Petitioner assails the RIRR for going beyond the provisions of TMC thereby
amending and expanding the coverage of the said law.
DOH meanwhile contends that the RIRR implements not only TMC but also
various international instruments regarding infant and young child
nutrition. They posit that the said international instruments are deemed
part of the law of the land and therefore may be implemented by the DOH
in the RIRR.
The ICMBS and other WHA Resolutions however, are the international
instruments which have specific provisions on breastmilk substitutes
While TMC is almost a verbatim reproduction of the ICMBS, it did not adopt
the latters provision on the absolute prohibition on advertising of products
within the scope of the ICMBS. Instead the MC provides that advertising
promotion or other marketing materials may be allowed if such materials
are approved by a committee.
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HELD: The rule that a State may not be sued without its consent is one of the
generally accepted principles of international law that were have adopted as part
of the law of our land. Even without such affirmation, we would still be bound by
the generally accepted principles of international law under the doctrine of
incorporation. Under this doctrine, as accepted by the majority of the states, such
principles are deemed incorporated in the law of every civilized state as a
condition and consequence of its membership in the society of nations. All states
are sovereign equals and cannot assert jurisdiction over one another.
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the states for
acts allegedly performed by them in the discharge of their duties. The rule is that
if the judgment against such officials will require the state itself to perform an
affirmative act to satisfy the same, the suit must be regarded as against the state
although it has not been formally impleaded.
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 sovereign immunity
from suit with its implied consent. In the case o US, the customary law of
international law on state immunity is expressed with more specificity in the RPUS Bases Treaty. There is no question that the US, like any other state, will be
deemed to have impliedly waived its non-suability if it has entered into a contract
in its proprietory or private capacity. It is only when the contract involves its
sovereign or governmental capacity that no such waiver may be implied.
It is clear from a study of the records of GR No. 80018 that the petitioners therein
were acting in the exercise of their official functions when they conducted the
buy-bust operations against the complainant and thereafter testified against him
at his trial. It follows that for discharging their duties as agents of the US, they
cannot be directly impleaded for acts imputable to their principal, which has not
given its consent to be sued.
As for GR No. 80018, the record is too meager to indicate what really happened.
The needed inquiry first be made by the lower court so it may assess and resolve
the conflicting claims of the parties on the basis of evidence that has yet to be
presented at the trial.
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ISSUE: Whether or not the Letter of Instruction No. 229 and the subsequent
Administrative Order issued is unconstitutional
HELD: The Supreme Court ruled for the dismissal of the petition. The statutes in
question are deemed not unconstitutional. These were definitely in the exercise of
police power as such was established to promote public welfare and public safety.
In fact, the letter of instruction is based on the constitutional provision of adopting
to the generally accepted principles of international law as part of the law of the
land. The letter of instruction mentions, as its premise and basis, the resolutions
of the 1968 Vienna Convention on Road Signs and Signals and the discussions on
traffic safety by the United Nations - that such letter was issued in consideration
of a growing number of road accidents due to stalled or parked vehicles on the
streets and highways.
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2. DOCTRINE OF TRANSFORMATION
b) The doctrine of transformation requires the enactment by the
legislative body of such international law principles as are sought to be
part of municipal law. See: Laguna Lake Development Authority vs. Court
of Appeals, 231SCRA 292 (where it was declared that Sec. 6, Art. II,
Philippine Constitution, which reads: The state shall protect and advance
the right of the people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature, was taken from the Universal
Declaration of Human Rights and the Alma Conference Declaration of
1978 recognizing health as a fundamental human right.
Thus, the authority of LLDA to issue a cease and desist order to prevent
the pollution of Marilao River was upheld on the basis of the principle of
necessary implication^.
CASES
1. WHO vs. AQUINO
FACTS: Herein petitioner, in behalf of Dr. Verstuyft, was allegedly suspected by
the Constabulary Offshore Action Center (COSAC) officers of carrying dutiable
goods under the Customs and Tariff Code of the Philippines. Respondent Judge
then issued a search warrant at the instance of the COSAC officers for the search
and seizure of the personla effects of Dr. Verstuyft notwithstanding his being
entitled to diplomatic immunity, as duly recognized by the Executive branch of
the government.
The Secretary of Foreign Affairs Carlos P. Romulo advised the respondent judge
that Dr. Verstuyft is entitled to immunity from search in respect for his personal
baggage as accorded to members of diplomatic missions pursuant to the Host
Agreement and further requested for the suspension of the search warrant. The
Solicitor General accordingly joined the petitioner for the quashal of the search
warrant but respondent judge nevertheless summarily denied the quashal.
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ISSUE: Whether or not personal effect of WHO Officer Dr. Verstuyft can be
exempted from search and seizure under the diplomatic immunity.
HELD: The executive branch of the Philippiness has expressly recognized that
Verstuyft is entitled to diplomatic immunity, pursuant to the provisions of the Host
Agreement. The DFA formally advised respondent judge of the Philippine
Government's official position. The Solicitor General, as principal law officer of the
gorvernment, likewise expressly affirmed said petitioner's right to diplomatic
immunity and asked for the quashal of the search warrant.
It recognized principle of international law and under our system of separation of
powers that diplomatic immunity is essentially a political question and courts
should refuse to look beyond a determination by the executive branch of
government, and where the plea of diplomatic immunity is recognized by the
executive branch of the government as in the case at bar, it is then the duty of
the courts to accept the claim of immunity upon appropriate suggestion by the
principal law officer of the government, the Solicitor General in this case, or other
officer acting under his discretion. Courts may not so exercise their jurisdiction by
seizure and detention of property, as to embarass the executive arm of the
government in conducting foreign relations.
The Court, therefore, holds the respondent judge acted without jurisdiction and
with grave abuse of discretion in not ordering the quashal of the search warrant
issued by him in disregard of the diplomatic immunity of petitioner Verstuyft.
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section 1 (2) of R.A. No. 6734 shall be included therein. The single
plebiscite contemplated by the Constitution and R.A. No. 6734 will
therefore be determinative of (1) whether there shall be an autonomous
region in Muslim Mindanao and (2) which provinces and cities, among
those enumerated in R.A. No. 6734, shall compromise it.
2. The question has been raised as to what this majority means. Does it
refer to a majority of the total votes cast in the plebiscite in all the
constituent units, or a majority in each of the constituent units, or both?
The 1987 Constitution provides: The creation of the autonomous region
shall be effective when approved by majority of the votes cast by the
constituent units in a plebiscite called for the purpose, provided that only
provinces, cities and geographic areas voting favorably in such plebiscite
shall be included in the autonomous region. [Art. X, sec, 18, para, 2]. It will
readily be seen that the creation of the autonomous region is made to
depend, not on the total majority vote in the plebiscite, but on the will of
the majority in each of the constituent units and the proviso underscores
this.
3. Petitioner avers that not all of the thirteen (13) provinces and nine (9)
cities included in the Organic Act, possess such concurrence in historical
and cultural heritage and other relevant characteristics. By including
areas, which do not strictly share the same characteristic as the others,
petitioner claims that Congress has expanded the scope of the
autonomous region which the constitution itself has prescribed to be
limited.
Petitioner's argument is not tenable. The Constitution lays down the
standards by which Congress shall determine which areas should
constitute the autonomous region. Guided by these constitutional criteria,
the ascertainment by Congress of the areas that share common attributes
is within the exclusive realm of the legislature's discretion. Any review of
this ascertainment would have to go into the wisdom of the law.
4. Both petitions also question the validity of R.A. No. 6734 on the ground
that it violates the constitutional guarantee on free exercise of religion
[Art. III, sec. 5]. The objection centers on a provision in the Organic Act
which mandates that should there be any conflict between the Muslim
Code and the Tribal Code on the one had, and the national law on the
other hand, the Shari'ah courts created under the same Act should apply
national law. Petitioners maintain that the islamic law (Shari'ah) is derived
from the Koran, which makes it part of divine law. Thus it may not be
subjected to any "man-made" national law. Petitioner Abbas supports this
objection by enumerating possible instances of conflict between provisions
of the Muslim Code and national law, wherein an application of national
law might be offensive to a Muslim's religious convictions.
In the present case, no actual controversy between real litigants exists.
There are no conflicting claims involving the application of national law
resulting in an alleged violation of religious freedom. This being so, the
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Court in this case may not be called upon to resolve what is merely a
perceived potential conflict between the provisions the Muslim Code and
national law.
5. According to petitioners, said provision grants the President the power
to merge regions, a power which is not conferred by the Constitution upon
the President.
While the power to merge administrative regions is not expressly provided
for in the Constitution, it is a power which has traditionally been lodged
with the President to facilitate the exercise of the power of general
supervision over local governments. There is no conflict between the
power of the President to merge administrative regions with the
constitutional provision requiring a plebiscite in the merger of local
government units because the requirement of a plebiscite in a merger
expressly applies only to provinces, cities, municipalities or barangays, not
to administrative regions.
6. Every law has in its favor the presumption of constitutionality. Based on
the grounds raised by petitioners to challenge the constitutionality of R.A.
No. 6734, the Court finds that petitioners have failed to overcome the
presumption. The dismissal of these two petitions is, therefore, inevitable.
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ISSUE: WON the Act deprives the aliens of the equal protection of the
laws.
HELD: The law is a valid exercise of police power and it does not deny the
aliens the equal protection of the laws. There are real and actual, positive
and fundamental differences between an alien and a citizen, which fully
justify the legislative classification adopted.
RATIO:
The equal protection clause does not demand absolute equality among
residents. It merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and
liabilities enforced.
The classification is actual, real and reasonable, and all persons of one
class are treated alike.
The difference in status between citizens and aliens constitutes a basis for
reasonable classification in the exercise of police power.
Official statistics point out to the ever-increasing dominance and control by
alien of the retail trade. It is this domination and control that is the
legislatures target in the enactment of the Act.
The mere fact of alienage is the root cause of the distinction between the
alien and the national as a trader. The alien is naturally lacking in that
spirit of loyalty and enthusiasm for the Phil. where he temporarily stays
and makes his living. The alien owes no allegiance or loyalty to the State,
and the State cannot rely on him/her in times of crisis or emergency.
While the citizen holds his life, his person and his property subject to the
needs of the country, the alien may become the potential enemy of the
State.
The alien retailer has shown such utter disregard for his customers and the
people on whom he makes his profit. Through the illegitimate use of
pernicious designs and practices, the alien now enjoys a monopolistic
control on the nations economy endangering the national security in
times of crisis and emergency.
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