MODULE 4
The court held that Denmark had long since established
LEGAL STATUS OF EASTERN GREENLAND (Denmark v Norway)
PCIJ Reports, Series A/B, No. 53
FACTS:
1. The country of Denmark had established and administered colonies
on the southwestern coast of Greenland since 1721. Although they
had also set up an outpost on the eastern coast, vast areas in the
eastern and northern parts of the island were outside Danish rule.
2. Between the years 1915 and 1921, Denmark sought to extend their
authority and sovereignty over the entire island, not just the
southwestern parts. In order to do so, they conducted several
diplomatic talks with other nations to gain their consent in the matter.
These nations included the US, Great Britain, Japan, France, Italy,
and Norway.
3. Of particular importance is the correspondence between Denmark
and Norway. The Danish Minister informed the Norwegian
government of Denmarks plans to establish authority over the whole
island. In response, the Norwegian Foreign Minister Nils Ihlen (NFM
Ihlen) stated that his government would make no difficulties
regarding this matter.
4. The Danish Government asked for a written confirmation of NFM
Ihlens verbal promise. The Norwegian Government did not reply.
Despite this, Denmark formally declared its sovereignty over all of
Greenland. This is when the Norwegian government made their reply,
expressing their dissent over the matter. They claim that Eastern
Greenland remained a no mans land, thus they were free to conduct
whatever activities on such land as they wished. To this, Denmark
stated that they had sovereignty over all of Greenland since before.
Both countries failed to reach a compromise as to Greenland.
5. A group of Norwegians occupied Mackenzie Bay (found in Eastern
Greenland) and through a formal proclamation claimed the Eastern
Coast of Greenland, naming it Eirik Raudes Land.
6. Denmark took the case to the Permanent Court of International
Justice (PCIJ).
ISSUE:
1. WON Denmark had already established sovereignty over the entire
island of Greenland, thus making the claim of Norway over the
Eastern part invalid
HELD:
1. YES.
sovereignty over the entire island, not merely the colonies, and that
Norway was estopped from laying claim to any part of Greenland by
its acceptance of several commercial treaties that named Greenland
of Danish possession, as well as by NFM Ihlens declaration that
Norway acknowledges Denmarks authority over the entire island.
2. The court rejected Norways contention that NFM Ihlen had no
authority to give such statement without the consent of the Norwegian
Parliament. NFM Ihlens statements became binding on the entire
Norway government, thus their act of establishing an outpost in the
eastern part of the island violated Danish sovereignty over the entire
island.
DISSENT OF JUSTICE ANZILOTTI:
1. Anzilotti agreed that Norway was bound by the FMI Ihlen declaration.
However, he was not convinced that Denmark had sovereignty over
the entire Greenland prior to their first correspondence with Norway
(which included FMI Ihlens declaration).
2. Anzilotti claims that when Denmark conducted diplomatic talks with
several nations regarding its intention to extend its authority over the
entire island, such was an admission by Denmark that they had not
yet established sovereignty over the entire island of Greenland
(hence their need to inform other nations of their plans.)
3. Thus, when Norway expressed their dissent to Denmarks formal
declaration of sovereignty over the entire Greenland, and Denmark
replied that they had already established sovereignty over the entire
island since before, Anzilotti believes that Denmark was merely
bluffing. Anzilotti claims that Denmark knew that they had not shown
actual exercise of sovereign rights over the entire island, and merely
hoped that Norway would believe them when they said that they had
already established sovereignty.
4. Anzilotti also claims that the historical evidence which Denmark
provided to prove their sovereignty over the entire island were
insufficient.

RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE
The Convention on the Genocide (Convention) was adopted by the
UN in 1951. However there were several States which made
reservations to the provisions on the Convention.
The UN then asked the ICJ to give an Advisory Opinion on the
following questions.
1. Can a reserving State be regarded as being a party to the
Convention while still maintaining its reservation even if the
reservation is objected by other States? YES (but the ICJ
states that there is no absolute answer)
It is a well-established principle that in its treaty relations a
State cannot be bound without its consent, and that no
reservation can be effective against any State without its
agreement thereto. No reservation is valid unless it was
accepted by all the contracting parties without exception.
But in the instant Convention, it is proper to refer to a variety
of circumstances which would lead to a more flexible
application of the principle.
It must be pointed out that the Convention was finally
approved unanimously, it is nevertheless the result of a
series of majority votes. The majority principle while
facilitating the conclusion of multilateral conventions, may
also make it necessary for certain States to make
reservation.
In addition, though a convention lacks an article providing for
reservation, it does not mean that contracting States are
prohibited from making certain reservations.
The origins of the Convention show that it was the intention
of the UN to condemn and punish genocide as a crime under
international law. It was manifestly adopted for a purely
humanitarian and civilizing purpose.
A State which has made a reservation which has been
objected to by one or more of the parties to the Convention
but not by others, can be regarded as being a party to the
Convention if the reservation is compatible with the object
and purpose of the Convention; otherwise, that State cannot
be regarded as being a party to the Convention.
The principles of international law deemed to be in existence
at the moment when it delivers its judgment or opinion.
2. If yes, what is the effect of the reservation as between the
reserving State and the parties which object and acccept the
reservation?
As no State can be bound by a reservation to which it has
not consented, it necessarily follows that each State
objecting to it will or will not, on the basis of its individual
appraisal within the limits of the criterion of the object and
purpose stated above, consider the reserving State to be a
party to the Convention.
The contracting States are guided in their judgment by the
compatibility or incompatibility of the reservation with the
object and purpose of the Convention.
3. What would be the legal effect if the State who objected is a
signatory which has not yet ratified? Or a State entitled to sign
or accede but which has not yet done so?
Signature does not make the signatory State a party to the
Convention but it establishes a provisional status in favor of
the State.
o Pending ratification confers upon the signatory State
a right to formulate as a precautionary measure
objections which have themselves a provisional
character.
o The reservation can only have the legal effect upon
ratification.
For the latter case, since the State has not yet signed, the
State cannot claim such a right from its status. Thus, the
reservation has no legal effect.
DISSENTS:
J. ALVAREZ
The multiplicity of reservation made to multilteral conventions,
together with the adhesion to them, has produced much uncertainty.
It is necessary that the Court should determine the present state of
law in each case which is brought before it and, when needed, act
constructively in this respect, al1 the more so because in virtue of
Resolution 171 of the General Assembly of the United Nations of
1947,it is at liberty to develop international law, and indeed to create
law, if that is necessary, for it is impossible to define exactly where the
development of this law ends and its creation begins.
 Four categories of multilateral conventions:
o a) those which seek to develop world international
organization or to establish regional organizations, such as
the European organ-ization which is of such great present-
day interest;
o b) thosewhich seek to determine the territorial status of
certain States; have constituted what may be called
"European public law"
o c) conventions which seek to establish new and important
principles of international law ;
o d) conventions seeking to regulate matters of a social or
humanitarian interest with a view to improving the position of
individuals
The Convention on Genocide cannot admit of reservations. If they are
allowed, they should produce the minimum of legal effect ot the
reserving State.
J. GUERRERO
a) that the existing rule of international law, and the current practice of
the United Nations, are to the effect that, without the consent of al1
the parties, a reservation proposed in relation to a multilateral
convention cannot become effective and the reserving State cannot
become a party thereto ;
(b) that the States negotiating a convention are free to modify both
the rule and the practice by making the necessary express provision
in the convention and frequently do so ;
c) that the States negotiating the Genocide Convention did not do so :
(d) that therefore they contracted on the basis that the existing law
and the current practice would apply in the usual way to any
reservations that might be proposed.
Any State desiring to become a party to the Convention would be at
liberty to assert that a particular provision was not a part of "the object
and purpose", that a reservation against it was "compatible with the
object and purpose of the Convention", and that it had therefore a
right to make that reservation-subject always to an objection by any of
the existing parties on the ground that the reservation ' is not
"compatible".
It propounds a new rule for which we can find no legal basis.
GOLDWATER v. CARTER
DOCTRINE:
W/N a President can terminate a treaty closely involves his foreign relations
authority and therefore not reviewer by the Court.
QUICKHELD:
While dismissing the case of Goldwater v. Carter, the Supreme Court left the
question of the constitutionality of the President Carter's action open. Powell
and Rehnquist merely questioned the judicial merit of the case itself; they did
not explicitly approve Carter's action. Moreover, Powell even stated that this
could be a valid constitutional issue. Article II, Section II of the Constitution
merely states that the President cannot make treaties without a Senate
majority two-thirds vote. As it stands now, there is no official ruling on whether
the President has the power to break a treaty without the approval of
Congress.
FACTS
Senator Barry Goldwater and other members of the US Congress challenged
the right of President Jimmy Carter to unilaterally nullify the Sino-American
Mutual Defense Treaty with Taiwan, which the United States had signed with
the Republic of China, so that relations could instead be established with the
People's Republic of China. Goldwater and his co-filers claimed that the
President required Senate approval to take such an action, under Article II,
Section II of the U.S. Constitution, and that, by not doing so, President Carter
had acted beyond the powers of his office.
ISSUE
W/N the President can terminate a treaty without Congressional approval
HELD
YES. W/N a President can terminate a treaty closely involves his foreign
relations authority and therefore not reviewer by the Court.
Granting a petition for certiorari but without hearing oral arguments, the court
vacated a court of appeals ruling and remanded the case to a federal district
court with directions to dismiss the complaint. A majority of six Justices ruled
that the case should be dismissed without hearing an oral argument. Justices
Lewis Powell and William Rehnquist issued two separate concurring opinions
on the case. Rehnquist claimed that the issue concerned how foreign affairs
were conducted between Congress and the President, and was essentially
political, not judicial; therefore, it was not eligible to be heard by the court.
Powell, while agreeing that the case did not merit judicial review, believed that
the issue itself, the powers of the President to break treaties without
congressional approval, would have been arguable had Congress issued a
formal opposition through a resolution to the termination of the treaty. (The
Senate had drafted such a resolution, but not voted upon it.) This would have
turned the case into a constitutional debate between the executive powers
granted to the President and the legislative powers granted to Congress. As
the case stood, however, it was simply a dispute among unsettled, competing
political forces within the legislative and executive branches of government,
and hence still political in nature due to the lack of majority or supermajority
vote in the Senate speaking officially as a constitutional institution. Today, the
case is considered a textbook example of the political question doctrine in
U.S. constitutional law.
DISSENT
Even though the Court cannot review political questions, the court has the
power to review whether or not a particular branch of government has
exclusive decision-making power over an issue.
CONCURRENCE
This issue was not ripe because the Senate never tried to invoke a resolution
against it. Were it ripe, however, the issue would be justiciable because it
would require an interpretation of the Constitution. Even though the Supreme
Court cannot hear purely political questions, it can review cases to determine
if the interpretation of the Constitution is correct.
DISCUSSION
In the arena of foreign affairs, the Court has held issues to be political
questions even though many Justices believe these issues relate to the
interpretation of the Constitution, and are therefore reviewable. The Court
places a great emphasis on establishing a single, unified voice for the nation
on foreign affairs.
Gabcikovo-Nagymaros Project Case (Hungary v.
Solvakia, ICJ Reports 1997)
Bayan v. Zamora
G.R. No. 138570
FACTS: In 1947, the Philippines and the US forged a Bases Agreement which
formalized the use of installations in the Philippine territory by US military
personnel. The Philippines and the US entered into the Mutual Defense
Treaty in 1951, agreeing to respond to any external armed attack on their
territory, armed forces, public vessels and aircraft.
In view of the expiration the bases agreement in 1991, both countries
negotiated for a possible extension of the agreement. The Senate rejected the
RP-US Treaty of Friendship, Cooperation and Security which, in effect, would
have extended the presence of US military bases in the Philippines. However,
the Mutual Defense Treaty continued.
The US Panel met with the Philippine panel to exchange notes on the
strategic interests of the US and PH. Both sides discussed the possible
elements of a Visiting Forces Agreement, which led to a consolidated draft
text, which became a final series of conferences and negotiations. President
Ramos approved it. President Estrada ratified it.
Through Executive Secretary Ronaldo Zamora, the agreement was
transmitted to the Senate for ratification. A Senate Resolution was approved
by a 2/3 vote to ratify the same agreement. The VFA entered into force on
June 1, 1999, after an exchange of notes between Secretary Siazon and US
Amb. Hubbard.
Petitioners assail the constitutionality of the VFA, imputing grave abuse of
discretion in ratifying the agreement.
ISSUES & HELD:
1. W/N petitioners have legal standing as concerned citizens,
taxpayers, or legislators to question the constitutionality of the
VFA NO
Petitioner failed to show that they have sustained, or are in danger of
sustaining any direct injury as a result of enforcing the
VFA. Petitioners have also not established that the VFA involves the
exercise by Congress of its taxing or spending powers.
Notwithstanding, 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 due to the
transcendental importance to the public of these cases.
2. W/N the VFA is governed by the provisions of Section 21, Article
VII or of Section 25, Article XVIII of the Constitution Art. XVIII,
Sec. 25
Section 21, Article VII, which herein respondents invoke, reads: No
treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
Section 25, Article XVIII, which petitioners invoke, provides: After the
expiration in 1991 of the Agreement between the Republic of the
Philippines and the United States of America concerning Military
Bases, foreign military bases, troops, or facilities shall not be allowed
in the Philippines except under a treaty duly concurred in by the
senate and, when the Congress so requires, ratified by a majority of
the votes cast by the people in a national referendum held for that
purpose, and recognized as a treaty by the other contracting State.
Section 21, Article VII lays down the general rule on treatise or
international agreements and applies to any form of treaty with a wide
variety of subject matter.
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.
Undoubtedly, Section 25, Article XVIII, which specifically deals with
treaties involving foreign military bases, troops, or facilities, should
apply in the instant case, following the rules on statutory construction
(lex specialis derogat generali).
Another issue is whether the US treated the VFA as a treaty. This
Court is of the firm view that the phrase recognized as a treaty means
that the other contracting party accepts or acknowledges the
agreement as a treaty. Even if the US denominates it as an executive
agreement, it is still a treaty by any other name.
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.
As a member of the family of nations, the Philippines agrees to be
bound by generally accepted rules for the conduct of its international
relations. We cannot readily plead the Constitution as a convenient
excuse for non-compliance with our obligations, duties and
responsibilities under international law. Every treaty in force is binding
upon the parties to it and must be performed by them in good
faith. This is known as the principle of pacta sunt servanda which
preserves the sanctity of treaties.
3. W/N there was grave abuse of discretion on the Presidents part
for entering into the said treaty NO
On this particular matter, grave abuse of discretion implies such
capricious and whimsical exercise of judgment as is equivalent to lack
of jurisdiction, or, when the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, and it
must be so patent and gross as to amount to an evasion of positive
duty enjoined or to act at all in contemplation of law.
The President is the sole organ and authority in the external affairs of
the country. In many ways, the President is the chief architect of the
nations foreign policy; External affairs solely rests in the executive
branch and is subject only to the concurrence of at least 2/3 vote of all
the members of the Senate.
Consequently, the acts or judgment calls of the President involving
the VFA are within 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.
By transmitting the treaty for ratification, the President was only
complying with the concurrence requirement under the Constitution.
Foreign relations remains a political question that the courts will
always hesitate to touch upon. Similarly, the Senate, by concurring in
a treaty, cannot be faulted for performing its constitutional duty.
NICOLAS v ROMULO
G.R. No. 175888
February 11, 2009
FACTS:
Respondent Lance Corporal Daniel Smith, a member of the US Armed
Forces, was charged with rape committed against a Filipina, petitioner herein,
inside a Starex van in the Subic Bay Freeport Zone. Pursuant to the Visiting
Forces Agreement (VFA), the US was granted custody of Smith pending the
proceedings. Smith was found guilty of the crime of rape and was to serve his
sentence in the facilities agreed upon by the Philippine (PH) and US
authorities. Meanwhile, Smith was temporarily committed to the Makati City
Jail. Subsequently, Smith was taken out of the Makati jail by PH law
enforcement agents, purportedly acting under orders of the DILG, and brought
to a facility for detention under the control of the US government, provided for
under new agreements between the PH and US (Romulo-Kenney Agreement:
In accordance with the VFA, Smith will be transferred from the Makati Jail to a
room inside the US Embassy Compound, guarded round the clock by US
military personnel. The Philippine police and jail authorities, under the direct
supervision of the PH DILG will have access to the place of detention to
ensure the US is in compliance with the VFA). The case was raised to the CA
but it dismissed it for having become moot. Petitioners now contend that the
PH should have custody of Smith because the VFA is void and
unconstitutional. The Court said that it had previously resolved this issue in
favor of the constitutionality of the VFA.
ART. XVIII Sec. 25 of the 1987 Constitution: x x x foreign military bases,
troops, or facilities shall not be allowed in the PH 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.
History: Under the PH Bill of 1902, US agreed to cede to PH all territory it
acquired from Spain, except certain naval ports/military bases and facilities.
This means that Clark and Subic and other places in the PH covered by the
RP-US Military Bases Agreement of 1947 were not PH territory. Accordingly,
the PH had no jurisdiction over these bases except to the extent allowed by
the US. Upon the expiration of the Agreement, the territory covered by these
bases were ceded to the PH.
To prevent a recurrence of this experience, the provision in question was
adopted in the 1987 Constitution. The provision is designed to ensure that any
agreement allowing the presence of foreign military bases, troops or facilities
in PH territory shall be equally binding on the PH and the foreign sovereign
State involved.
ISSUE: W/N THE PRESENCE OF THE US ARMED FORCES IN PH
TERRITORY PURSUANT TO THE VFA IS ALLOWED UNDER A TREATY
DULY CONCURRED IN BY THE SENATE AND RECOGNIZED AS A TREATY
BY THE OTHER CONTRACTING STATE
HELD: YES.
First, the VFA was duly concurred in by the PH Senate and has been
recognized as a treaty by the US as attested and certified by the duly
authorized representative of the US government. The fact that the VFA was
not submitted for advice and consent of the US Senate does not detract from
its status as a binding international agreement or treaty recognized by the
said State. For this is a matter of internal US law. Notice can be taken of the
internationally known practice by the US of submitting to its Senate for advice
and consent agreements that are policymaking in nature, whereas those that
carry out or further implement these policymaking agreements are merely
submitted to Congress, under the provisions of the so-called CaseZablocki
Act, within 60 days from ratification.
The second reason has to do with the relation between the VFA and the RP-
US Mutual Defense Treaty of August 30, 1951. This earlier agreement was
signed and duly ratified with the concurrence of both the Philippine Senate
and the United States Senate.
Joint RP-US military exercises for the purpose of developing the capability to
resist an armed attack fall squarely under the provisions of the RP-US Mutual
Defense Treaty. The VFA, which is the instrument agreed upon to provide for
the joint RP-US military exercises, is simply an implementing agreement to
the main RPUS Military Defense Treaty.
Accordingly, as an implementing agreement of the RP-US Mutual Defense
Treaty, it was not necessary to submit the VFA to the US Senate for advice
and consent, but merely to the US Congress under the CaseZablocki Act
within 60 days of its ratification. It is for this reason that the US has certified
that it recognizes the VFA as a binding international agreement, i.e., a treaty,
and this substantially complies with the requirements of Art. XVIII, Sec. 25 of
our Constitution. The VFA being a valid and binding agreement, the parties
are required as a matter of international law to abide by its terms and
provisions.
In the VFA, it states that 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.
Petitioners contend that these undertakings violate another provision of the
Constitution, namely, that providing for the exclusive power of this Court to
adopt rules of procedure for all courts in the Philippines. They argue that to
allow the transfer of custody of an accused to a foreign power is to provide for
a different rule of procedure for that accused, which also violates the equal
protection clause.
The Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a substantial
basis for a different treatment of a member of a foreign military armed forces
allowed to enter our territory and all other accused.
The rule in international law is that a foreign armed forces allowed to enter
ones territory is immune from local jurisdiction, except to the extent agreed
upon. The laws (including rules of procedure) of one State do not extend or
apply except to the extent agreed upon to subjects of another State due to the
recognition of extraterritorial immunity given to such bodies as visiting foreign
armed forces. Nothing in the Constitution prohibits such agreements
recognizing immunity from jurisdiction or some aspects of jurisdiction (such as
custody). On the contrary, the Constitution states that the Philippines adopts
the generally accepted principles of international law as part of the law of the
land.
Applying, however, the provisions of VFA, the Court finds that there is a
different treatment when it comes to detention as against custody. The
moment the accused has to be detained, e.g., after conviction, the rule that
governs is the following provision of the VFA: 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 visits and material assistance.
It is clear that the parties to the VFA recognized the difference between
custody during the trial and detention after conviction, because they provided
for a specific arrangement to cover detention. And this specific arrangement
clearly states not only that the detention shall be carried out in facilities
agreed on by authorities of both parties, but also that the detention shall be by
Philippine authorities. Therefore, the Romulo-Kenney Agreements, which are
agreements on the detention of the accused in the United States Embassy,
are not in accord with the VFA itself.
Next, the Court addresses the recent decision of the United States Supreme
Court in Medellin v. Texas, which held that treaties entered into by the United
States are not automatically part of their domestic law unless these treaties
are self-executing or there is an implementing legislation to make them
enforceable.
First, the VFA is a self-executing Agreement, as that term is defined in
Medellin itself, 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. Secondly, the VFA is
covered by implementing legislation, namely, the CaseZablocki Act. In sum,
therefore, the VFA differs from the Vienna Convention on Consular Relations
and the Avena decision of the International Court of Justice (ICJ), subject
matter of the Medellin decision. Finally, the RPUS Mutual Defense Treaty was
advised and consented to by the US Senate.
The framers of the Constitution were aware that the application of
international law in domestic courts varies from country to country. It was not
the intention of the framers of the 1987 Constitution, in adopting Article XVIII,
Sec. 25, to require the other contracting State to convert their system to
achieve alignment and parity with ours. It was simply required that the treaty
be recognized as a treaty by the other contracting State. With that, it becomes
for both parties a binding international obligation and the enforcement of that
obligation is left to the normal recourse and processes under international law.
Lim v. Executive Secretary
Facts:
In accordance with the Mutual Defense Treaty (MDT) entered into between
the United States and the Philippines in 1951 (modified, however, by the
Visiting Forces Agreement (VFA) of 1999), American troops started arriving in
Mindanao on January 2002 to partake in Balikatan 02-1 with the AFP. Said
exercises, which were joint military maneuvers, were in response to the
September 11, 2001 terrorist attacks on the World Trade Center in New York
City. The petitioners in this case, as citizens, lawyers, and taxpayers, filed a
petition alleging said exercises violated the constitution. The petitioners-in-
intervention, the Sanlakas and Partido ng mga Manggagawa party-lists, filed a
petition for intervention claiming that, being residents on Zamboanga and
Sulu, they would be directly affected by the exercises.
A month later, or on February 2001, the Senate conducted a hearing
regarding the Balikatan 02-1, where Vice President Teofisto Guingona, who
was concurrently Secretary of Foreign Affairs, presented the Draft Terms of
Reference (TOR). The TOR was later approved by Guingona. Said TOR
contained the details of the Balikatan exercises.
that American troops were not limited to just military exercises in Philippine
territory. HOWEVER, the Court also saw that although the VFA granted
American troops access to military exercises, it did not authorize said troops
to engage in offensive war on Philippine soil, particularly against the Abu
Sayyaf. This, the Court, seemed to be the primary fear of the petitioners.
Given the MDT and VFA, the Court further elucidated that treaties must be
screened against the 1987 Constitution, which provides, among other things,
that treaties must be concurred by 2/3 of the Senate. Further, the Court added
that, in accordance with the international law principle of pacta sunt servanda,
municipal law is favored less compared to treaties. Hence, "[e]very treaty in
force is binding upon the parties to it and must be performed by them in good
faith." Given that, though, the Constitution authorizes the Supreme Court to
nullify a treaty not only when it conflicts with the Constitution, but also an act
of Congress. All in all, the Court ruled that American troops are not allowed to
engage in offensive war in the Philippines.

Issue: W/N Balikatan 02-1 is unconstitutional

Held: NO
Brushing aside the petitioners and intervenors contentions as being
premature, the Court decided to look into the terms of the TOR in order to
ascertain the legality of said exercises.

The first had to look into whether Balikatan 02-1 fell under the VFA. However,
the Court lamented the fact that the terminology of said agreement was rather
vague, especially with regard to the word activities. Consequently, the Court
resorted to using the Vienna Convention on the Law of Treaties, and found
that the TOR fell into the context of the VFA, thus

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.

Given the same, the Court saw that the word activities was intentionally kept
vague so as to give the parties more room to operate. As such, this meant
 Pimentel v. Executive Secretary
PIMENTEL VS ERMITA
Facts : This is a petition for mandamus to compel the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit (even without the signature of the President) the signed copy of
the Rome Statute of the International Criminal Court (ICC) to the Senate of the Philippines for its
concurrence or ratification - in accordance with Section 21, Article VII of the 1987 Constitution.
Petitioners contend that that ratification of a treaty, under both domestic law and international law, is a
function of the Senate. That under the treaty law and customary international law, Philippines has a
ministerial duty to ratify the Rome Statute.
Issues :
Whether or not the Executive Secretary and the Department of Foreign Affairs have the ministerial duty to
transmit to the Senate the copy of the Rome Statute signed by the Philippine Member to the United
Nations even without the signature of the President.
HeldRenato
: v. Rosario,
Petitioners interpretation of the Constitution is incorrect. The power to ratify treaties does not belong to
the Senate.
Under E.O. 459, the Department of Foreign Affairs (DFA) prepares the ratification papers and forward the
signed copy to the President for ratification. After the President has ratified it, DFA shall submit the same
to the Senate for concurrence.
The President has the sole authority to negotiate and enter into treaties, the Constitution provides a
limitation to his 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. 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 two-thirds of
all the Members of the Senate. The participation of the legislative branch in the treaty-making process
was deemed essential to provide a check on the executive in the field of foreign relations.
It should be emphasized that under the Constitution the power to ratify is vested in the President subject
to the concurrence of the Senate. The President has the discretion even after the signing of the treaty by
the Philippine representative whether or not to ratify a treaty.
The signature does not signify final consent, it is ratification that binds the state to the provisions of the
treaty and renders it effective.
Senate is limited only to giving or withholding its consent, concurrence to the ratification. It is within the
President to refuse to submit a treaty to the Senate or having secured its consent for its ratification,
refuse to ratify it. Such decision is within the competence of the President alone, which cannot be
encroached by this court via writ of mandamus,
PHILIPPINE PHARMACEUTICAL V DOH
Facts: Named as respondents are the Health Secretary, Undersecretaries,
and Assistant Secretaries of the Department of Health (DOH). For purposes of
herein petition, the DOH is deemed impleaded as a co-respondent since
respondents issued the questioned RIRR in their capacity as officials of said
executive agency.1Executive Order No. 51 (Milk Code) was issued by
President Corazon Aquino on October 28, 1986 by virtue of the legislative
powers granted to the president under the Freedom Constitution. One of the
preambular clauses of the Milk Code states that the law seeks to give effect to
Article 112 of the International Code of Marketing of Breastmilk Substitutes
(ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From
1982 to 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.In 1990, the Philippines ratified the International Convention on the
Rights of the Child. Article 24 of said instrument provides that 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. On May 15, 2006, the DOH
issued herein assailed RIRR which was to take effect on July 7, 2006.
Issue: Whether Administrative Order or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not
constitutional;
Held: YES, under Article 23, recommendations of the WHA do not come into
force for members,in the same way that conventions or agreements under
Article 19 and regulations under Article 21 come into force. Article 23 of the
WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter within the
competence of the Organization
for an international rule to be considered as customary law, it must be
established that such rule is being followed by states because they consider it
obligatory to comply with such rules
Under the 1987 Constitution, international law can become part of the sphere
of domestic law either

By transformation or incorporation. The transformation method requires that
an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. The incorporation method
applies when, by mere constitutional declaration, international law is deemed
to have the force of domestic law.
Consequently, legislation is necessary to transform the provisions of the WHA
Resolutions into domestic law. 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
ABAYA V EBDANE
Facts: Based on the Exchange of Notes dated December 27, 1999, the
Government of Japan and the Government of the Philippines, through their
respective representatives, namely, Mr. Yoshihisa Ara, Ambassador
Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines,
and then Secretary of Foreign Affairs Domingo L. Siazon, have 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.
Under the terms and conditions of Loan Agreement No. PH-P204, JBIC
agreed to lend the Philippine Government an amount not exceeding FIFTEEN
BILLION THREE HUNDRED EIGHTY-FOUR MILLION Japanese Yen
(Y15,384,000,000) as principal for the implementation of the Arterial Road
Links Development Project (Phase IV) on the terms and conditions set forth in
the Loan Agreement and in accordance with the relevant laws and regulations
of Japan. The said amount shall be used for the purchase of eligible goods
and services necessary for the implementation of the above-mentioned
project from suppliers, contractors or consultants.
Further, it was provided under the said loan agreement that other terms and
conditions generally applicable thereto shall be set forth in the General Terms
and Conditions, dated November 1987, issued by the Overseas Economic
Cooperation Fund (OECF) and for the purpose, reference to "the OECF" and
"Fund" therein (General Terms and Conditions) shall be substituted by "the
JBIC" and "Bank," respectively. Specifically, the guidelines for procurement of
all goods and services to be financed out of the proceeds of the said loan
shall be as stipulated in the Guidelines for Procurement under OECF Loans
dated December 1997 (herein referred to as JBIC Procurement Guidelines).
As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to
be used to finance the Arterial Road Links Development Project (Phase IV), of
which the Catanduanes Circumferential Road was a part. This road section, in
turn, was divided into four contract packages (CP):
CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms
CP II: Viga-Bagamanoc Road - 10.40 kms.
CP III: Bagamanoc-Pandan Road - 47.50 kms.
CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.
The approved budget for the contract was P738, 710, 563. 67. After the
bidding process, the Bids and Awards Committee of the DPWH issued
Resolution No. PHJL-A-04-012 recommending the award of the CP I Project
in favour of the private respondent China Road & Bridge Corportion being the
lowest bidder. A contract of agreement was entered into by and between the
DPWH and the private respondent.
Petitioners, as taxpayers and Filipino citizens filed a petition for certiorari and
prohibition seeking to set aside and nullify said resolution and contract of
agreement. They claim that the award of the contract to private respondent
China Road and Bridge Corp. violates RA 9184 which provides that all bids or
awards should not exceed the ceilings or upper limits; otherwise, the contract
is deemed void and inexistent. Private respondents bid was more than P200
million overpriced based on the Approved Billing Ceiling (ABC). As such. The
award and the subsequent contract are illegal and unconscionable.
Respondents maintain that the imposition of the ceilings under RA 9148 does
not apply because the project financed by the loan agreement is governed by
the latters Procurement Guidelines (JBIC Procurement Guidelines) which
does not impose a ceiling on bid prices. They likewise aver that the loan
agreement is governed by RA 4860 which provides that the President is
empowered to waive the application of any law imposing restrictions on the
procurement of goods and services pursuant to such loans. Respondents
characterized Loan Agreement No. PH-P204 as an executive agreement,
which are essentially contracts governing the rights and obligations of the
parties. A contract, being the law between the parties, must be faithfully
adhered to by them. Guided by Pacta Sunt Servanda, the Philippine
government bound itself to perform in good faith duties and obligations under
the Loan Agreement.
Issues:
1. Whether or not RA 9184 applies to the CP I Project NO.
2. Whether or not the agreement between the Philippine Government throught
the DPWH and the JCIB is an executive agreement? - YES
Held:
1. EO 40, not RA 9184, is applicable to the procurement process
undertaken for the CP I project. RA 9184 cannot be given retroactive
application.
It is not disputed that with respect to the CP I project, the Invitation to
Prequalify and to Bid for its implementation was published in two
leading national newspapers, namely, the Manila Times and Manila
Standard on November 22, 29 and December 5, 2002. At the time,
the law in effect was EO 40. On the other hand, RA 9184 took effect
two months later or on January 26, 2003. Further, its full
implementation was even delayed as IRR-A was only approved by
President Arroyo on September 18, 2003 and subsequently published
on September 23, 2003 in the Manila Times and Malaya newspapers.
The provisions of EO 40 apply to the procurement process pertaining
to the CP I project, which contains no such provision setting a ceiling
for bid prices.
2. The Court holds that the Loan Agreement No. PH-P204 taken in
conjunction with the exchange of notes between the Japanese
Government and the Philippine Government is an executive
agreement.
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.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. Significantly, 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.
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". The point
where ordinary correspondence between this and other governments
ends and agreements whether denominated executive agreements
or exchange of notes or otherwise begin, may sometimes be difficult
of ready ascertainment. It would be useless to undertake to discuss
here the large variety of executive agreements as such, concluded
from time to time. Hundreds of executive agreements, other than
those entered into under the trade-agreements act, have been
negotiated with foreign governments.
The JBIC Procurements Guidelines forbids any procedure under
which bids above or below a predetermined bid value assessment are
automatically disqualified. Succinctly put, it absolutely prohibits the
imposition of ceilings on bids.
Under the fundamental principle of international law of pacta sunt
servanda, which is, in fact, embodied in Section 4 of RA 9184 as it
provides that "any 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.
PH-P204, rightfully awarded the contract for the implementation of
civil works for the CP I project to private respondent China Road &
Bridge Corporation.
Province of North Cotabato v. GRP Peace Panel
Basic Facts:
July 18, 1997GRP and MILF sign Agreement on General Cessation of
Hostilities, which contained their desire to pursue peace negotiations and
avoid attacks while its ongoing. The following year they signed. Next year,
signing of General Framework of Agreement of Intent
But MILF went on attacking various places in Central Mindanao anyway, so
then Pres. Estrada declared all-out war against them. When PGMA assumed
the presidency, she suspended the military offensive and sought to resume
peace talks.
March 24, 2001GRP and MILF met in Kuala Lumpur, Malaysia, signing an
agreement to formally resume peace talks and suspend all military attacks
June 20-21, 2001formal peace talks in Tripoli, Libya, out of which came the
Tripoli Agreement 2001, containing agenda on such aspects of negotiation:
Security, Rehabilitation and Ancestral Domain
August 5-7, 2001second round of peace talks, leading to a ceasefire
between the groups, but still there were many violent incidents between 2002
and 2003
2005MOA-AD was crafted in its final form and set to be signed on Aug. 5
2008
North Cotabato and Vice Gov. Pinol filed a petition for mandamus and
prohibition invoking right to information on matter of public concern. The one
filed by Zamboanga and its representatives is to include Zamboanga from the
Bangsamoro Juridical Entity and also to declare MOA-AD unconstitutional. All
the other petitioners prayed for the declaration of the MOA-AD as
unconstitutional, to enjoin respondents from signing it, and if signed already,
to enjoin them from implementing it. Respondents thereafter filed a motion to
dismiss.
MOA-AD Content:
The MOA-AD identifies under its Terms of Reference (TOR) two local
statutes: organic act of ARMM, IPRA, and several international law
instruments the ILO Convention No. 169 Concerning Indigenous
and Tribal Peoples in independent Countries in relation to the UN
Declaration on the Eights of the Indigenous Peoples, and the UN
 Charter, among others.
The main body of the MOA-AD is divided into four strands: Concepts
and Principles, Territory, Resources, and Governance
Concepts and Principles
o The concept of Bangsamoro, as defined in this strand of the
MOA-AD, includes not only Moros as traditionally
understood, but all indigenous peoples of Mindanao and its
adjacent islands. The MOA-AD adds that the freedom of
choice of indigenous peoples shall be respected.
o The MOA-AD proceeds to refer to the 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 MOA-AD acknowledge that
ancestral domain does not form part of the public domain.
o The Bangsamoro people are acknowledged as having the
right to self-governance, which right is said to be rooted on
ancestral territoriality.
o The MOA-AD then mentions the Bangsamoro Juridical
Entity (BJE) to which it grants the authority and jurisdiction
over the Ancestral Domain and Ancestral Lands of the
Bangsamoro.
Territory
o The Parties to the MOA-AD stipulate that the BJE shall have
jurisdiction over all natural resources within its internal
waters, defined as extending fifteen (15) kilometers from the
coastline of the BJE area; that the BJE shall also have
territorial waters, which shall stretch beyond the BJE internal
waters up to the baselines of the Republic of the Philippines
(RP) south east and south west of mainland Mindanao; and
that within these territorial waters, the BJE and the Central
Government (used interchangeably with RP) shall exercise
joint jurisdiction, authority and management of natural
resources.
o It provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the
latter, through production sharing and economic cooperation
agreement.
Resources
o The MOA-AD 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. Such relationships and
understandings, however, are not to include aggression
against the GRP. The BJE may also enter into environmental
cooperation agreements.
o The external defense of the BJE is to remain the duty and
obligation of the Central Government
Governance
o The MOA-AD binds the Parties to invite a multinational third-
party to observe and monitor the implementation of the
Comprehensive Compact. This compact is to embody the
details for the effective enforcement and the mechanisms
and modalities for the actual implementation of the MOA-AD.
The MOA-AD explicitly provides that the participation of the
third party shall not in any way affect the status of the
relationship between the Central Government and the BJE.
o The MOA-AD describes the relationship of the Central
Government and the BJE as associative, characterized by
shared authority and responsibility.
Pertinent ISSUE with regard to Treaty:
W/N the grant of legislation vesting the BJE with treaty-making power to
accommodate paragraph 4 of the strand on RESOURCES under the MOA-
AD is constitutional?
HELD:
The MOA-AD would not comply with Article X, Section 20 of the
Constitution since that provision defines the powers of autonomous regions
that encompasses:
(9) Such other matters as may be authorized by law for the promotion of the
general welfare of the people of the region.
Again on the premise that the BJE may be regarded as an autonomous
region, the MOA-AD would require an amendment that would expand the
above-quoted provision. The mere passage of new legislation pursuant to
sub-paragraph No. 9 of said constitutional provision would not suffice, since
any new law that might vest in the BJE the powers found in the MOA-AD
must, itself, comply with other provisions of the Constitution. It would not do,
for instance, to merely pass legislation vesting the BJE with treaty-
making power in order to accommodate paragraph 4 of the strand on
RESOURCES which states: "The BJE is free to enter into any economic
cooperation and trade relations with foreign countries: provided, however, that
such relationships and understandings do not include aggression against the
Government of the Republic of the Philippines x x x."
Under our constitutional system, it is only the President who has that
power. In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the
country's sole representative with foreign nations. As the chief architect of
foreign policy, the President acts as the country's 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 treaty-making, the
President has the sole authority to negotiate with other stat
Bayan Muna vs. Romulo
Doctrine:
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
remained within their powers

International Agreements

Treaty Executive Agreement

-Legislative concurrence after senate -No legislative concurrence
ratification -Less formal
-Narrower range of subject matter

FACTS:
December 28, 2000 the Philippines signed the Rome Statute, which by its
terms is subject to ratification, acceptance or approval by the signatory states.
Only 92 out of 139 signatory completed the ratification; the Philippines is not
among the 92.
Rome Statute - is the treaty that established the International
Criminal Court (ICC) with the the power to exercise jurisdiction over
persons for the serious crimes of international concern and shall be
complementary to the national criminal jurisdiction. (Serious crimes
adverted under International Law: Genocide, Crimes against
humanity, War crimes and Crimes of aggression)
May 9, 2003 Then, US ambassador Francis Ricciardone sent US
Embassy Note no. 0470 to the DFA proposing the terms of Non-surrender
Bilateral Agreement (Agreement) which aims to protect persons of RP and
US from frivolous harassment suits that might be brought to against them in
International Tribunals.
May 13, 2003 - via Exchange of Notes no. BFO-028-03, RP, represented by
DFA Secretary Ople agreed with the accepted the proposals embodied
under the US Embassy Note adverted to and put in effect the Agreement
with US government.
October 28, 2003 Ambassador Ricciardone, in response to a query of
Solicitor General Alfredo Benipayo, replied that the exchange of diplomatic
notes constituted a legally binding agreement under the International
Law and that under the US law, the agreement did not require consent
from the US Senate.
Petitioner Bayan Muna imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be struck down as
unconstitutional.
ISSUE/S:
1. Whether the RP President and the DFA Secretary gravely abused
their discretion, amounting to lack or excess of jurisdiction for concluding the
RP-US Non-surrender Agreement, when the RP government already signed
the Rome Stature of the ICC despite the pending ratification of the RP
Senate.
2. Whether the RP-US Non-surrender Agreement is VALID, binding and
effective without the concurrence of 2/3 of the Senate.
HELD:
1. NO. In agreeing to conclude the Agreement, then President Gloria
Macapagal-Arroyo, represented by the DFA Secretary Ople, acted within the
scope of their authority and discretion vested in her by the constitution.
More importantly, an act of the executive branch with a foreign government
must be afforded great respect. The power to enter into executive
agreements has always been lodged with the President. The rationale
behind the principle is the inviolable doctrine of separation of powers among
the legislative executive and judicial branches of the government. Thus, In
light of the above consideration, the position that the challenged RP-US Non-
surrender Agreement, ought to be in the form of treaty to be effective has to
be rejected.
2. YES. Referring to the validity of the Agreement without concurrence by at
least 2/3 of the Senate, the court has given recognition to the
OBLIGATORY EFFECT OF EXECUTIVE AGREEMENTS without the
concurrence of the Senate.
International agreements may be in the form of:
(3) treaties that require legislative concurrence after executive
ratification; or
(4) 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.
CHINA NATIONAL MACHINERY & EQUIPMENT CORP v SANTAMARIA
G.R. No. 185572, February 7, 2012
FACTS:
1. Petitioner China National Machinery and Equipment Corp. Group
(CNMEG) entered into a memorandum of understanding with North
Luzon Railways Corporation (NORTHRAIL) for the conduct of a
feasibility study on a possible railway line from Manila to La Union. In
light of this, Export Import Bank of China (EXIM BANK) also entered
into a memorandum of understanding with DOF wherein China was to
extend credit to the Philippine government to finance the project.
2. CNMEG and NORTHRAIL then executed a contract for the
construction of Phase 1 of the project on a turnkey basis. The
Philippine government and EXIM BANK also executed a loan
agreement to finance the construction of Phase 1 of the project.
3. Respondents (several representatives of political parties) filed a
Complaint for Annulment of Contract, alleging that the contract
between CNMEG and NORTHRAIL regarding the construction of
Phase 1 of the project as well as the loan agreement between
Philippines and China was void for being contrary to the Constitution
and statutory laws.
4. CNMEG filed a motion to dismiss, claiming that the trial court did not
have jurisdiction over a) its person as it was an agent of the Chinese
government, making them immune from suit, and b) over the subject
matter as the project was a product of an executive agreement.
However, the RTC and CA both denied their motion to dismiss.
ISSUES:
1. WON CNMEG is entitled to immunity, precluding it from being sued
before a local court
2. WON the contract entered into between CNMEG and NORTHRAIL is
an executive agreement, such that it cannot be questioned by or
before a local court
HELD:
1. NO. Although there are 2 concepts with regard to sovereign immunity,
namely, the CLASSICAL/ ABSOLUTE THEORY and the
RESTRICTIVE THEORY, jurisprudence shows that the Philippines
adheres to the RESTRICTIVE THEORY. This theory states that
immunity of a sovereign is recognized only with regard to public acts
or governmental activities (jure imperii), but not with regard to private
and proprietary, or commercial acts (jure gestionis). It then becomes
important to determine whether the contract entered into between
CNMEG and NORTHRAIL was in furtherance of government
functions or proprietary fucntions.
An examination of the Contract Agreement, in conjunction with the
memorandum of understanding between CNMEG and NORTHRAIL
as well as the Loan Agreement between Philippines and China, would
reveal that the railway project was meant to be a proprietary
endeavor. These documents show that CNMEG initiated the
undertaking and not the Chinese government, such that the
negotiations were 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 to generate profit.
Furthermore, the memorandum of understanding explicitly states that
the undertaking is to be constituted through private and commercial
acts done and performed for commercial purposes under the laws of
the Philippines. Thus, the loan granted by EXIM BANK to the
Philippines was not mandated by the Chinese government, but was in
pursuance of a completely commercial or proprietary transaction.
2. NO. According to the Vienna Convention, an executive agreement
was comply with 3 requisites: a) the agreement must be between
states, b) it must be written, and c) it must be governed by
international law. The 1st and 3rd requisites are not present in the case
at bar.
The contract was not concluded between the Philippines and China,
but between NORTHRAIL and CNMEG. NORTHRAIL is a GOCC
while CNMEG is a corporation duly and organized under China. Thus,
both of them entered into the contract as entities with personalities
separate and distinct from the Philippine and Chinese governments,
respectively.
Furthermore, the contract was not governed by international law, but
rather by Philippine law, as expressly provided by the Contract
Agreement. This explicit reliance on Philippine Law effectively
conceded that their rights and obligations 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.
DEUTSCHE BANK v. CIR
Facts:
Deutsche Bank withheld and remitted to CIR the amount P68K, which
represented 15% branch profit remittance tax (BPRT) on its regular
banking unit net income.
It then asked for refund or issuance of its tax credit certificate
believing that it made an overpayment of the BPRT.
Petitioner also requested from the International Tax Affairs Division
(ITAD) a confirmation of its entitlement to the preferential tax rate of
10% under the RP-Germany Tax Treaty.
o Under Section 28(A)(5) of the NIRC, any profit remitted to its
head office shall be subject to a tax of 15% based on the total
profits applied for or earmarked for remittance without any
deduction of the tax component.
o By virtue of the RP-Germany Tax Treaty, we are bound to
extend to a branch in the Philippines of a resident of Federal
Republic of Germany, remitting to its head office in Germany,
the benefit of a preferential rate equivalent to 10% BPRT.
The BIR issued RMO No. 1-2000, which requires that any availment
of the tax treaty relief must be preceded by an application with ITAD
at least 15 days before the transaction. The Order was issued to
streamline the processing of the application of tax treaty relief in order
to improve efficiency and service to the taxpayers. Further, it also
aims to prevent the consequences of an erroneous interpretation and/
or application of the treaty provisions
CTA: The claim of petitioner for a refund was denied on the ground
that the application for a tax treaty relief was not filed with ITAD prior
to the payment by the former of its BPRT and actual remittance of its
branch profits to DB Germany, or prior to its availment of the
preferential rate of ten percent (10%) under the RP-Germany Tax
Treaty provision.
o Before the benefits of the tax treaty may be extended to a
foreign corporation wishing to avail itself thereof, the latter
should first invoke the provisions of the tax treaty and prove
that they indeed apply to the corporation.
o a ruling from the ITAD of the BIR must be secured prior to the
availment of a preferential tax rate under a tax treaty.
o The 15-day rule for tax treaty relief application under RMO
No. 1-2000 cannot be relaxed for petitioner,
o
Issue:
W/N the failure to strictly comply with RMO No. 1-2000 will deprive persons or
corporations of the benefit of a tax treaty.
Held: NO
Tax treaties are entered into to minimize, if not eliminate the
harshness of international juridical double taxation, which is why they
are also known as double tax treaty or double tax agreements.
Likewise, it must be stressed that there is nothing in RMO No. 1-2000
which would indicate a deprivation of entitlement to a tax treaty relief
for failure to comply with the 15-day period. We recognize the clear
intention of the BIR in implementing RMO No. 1-2000, but the CTAs
outright denial of a tax treaty relief for failure to strictly comply with the
prescribed period is not in harmony with the objectives of the
contracting state to ensure that the benefits granted under tax treaties
are enjoyed by duly entitled persons or corporations.
The denial of the availment of tax relief for the failure of a taxpayer to
apply within the prescribed period under the administrative issuance
would impair the value of the tax treaty. At most, the application for a
tax treaty relief from the BIR should merely operate to confirm the
entitlement of the taxpayer to the relief.
The obligation to comply with a tax treaty must take precedence over
the objective of RMO No. 1-2000. Logically, noncompliance with tax
treaties has negative implications on international relations, and
unduly discourages foreign investors. While the consequences sought
to be prevented by RMO No. 1-2000 involve an administrative
procedure, these may be remedied through other system
management processes,
It is significant to emphasize that petitioner applied though belatedly
for a tax treaty relief, in substantial compliance with RMO No.
1-2000.
The amount of PHP 67,688,553.51 paid by petitioner represented the
15% BPRT on its RBU net income, due for remittance to DB Germany
amounting to PHP 451,257,023.29 for 2002 and prior taxable
years.cralaw virtualaw library
Likewise, both the administrative and the judicial actions were filed
within the two-year prescriptive period pursuant to Section 229 of the
NIRC.tualaw library
Clearly, there is no reason to deprive petitioner of the benefit of a
preferential tax rate of 10% BPRT in accordance with the RP-
Germany Tax Treaty.
SAGUISAG v. EXECUTIVE SECRETARY OCHOA
FACTS
Petitioners, as citizens, taxpayers and former legislators, questioned before
the SC the constitutionality of EDCA (Enhanced Defense Cooperation
Agreement), an agreement entered into by the executive department with the
US and ratified on June 6, 2014. Under the EDCA, the PH shall provide the
US forces the access and use of portions of PH territory, which are called
Agreed Locations. Aside from the right to access and to use the Agreed
Locations, the US may undertake the following types of activities within the
Agreed Locations: security cooperation exercises; joint and combined training
activities; humanitarian and disaster relief activities; and such other activities
that as may be agreed upon by the parties.
Mainly, petitioners posit that the use of executive agreement as medium of
agreement with US violated the constitutional requirement of Art XVIII, Sec 25
since the EDCA involves foreign military bases, troops or facilities whose
entry into the country should be covered by a treaty concurred in by the
Senate. The Senate, through Senate Resolution 105, also expressed its
position that EDCA needs congressional ratification.
ISSUE
1. W/N EDCA is a valid agreement entered into by the President - NO
2. W/N the petitions qualify as legislators suit - NO facilities in the country. Hence, the absence of Senate concurrence to the
3. W/N the SC may exercise its power of judicial review over the case - YES
4. W/N the non-submission of the EDCA agreement for concurrence by the
Senate violates the Constitution - NO
HELD
1. NO. In assailing the constitutionality of a governmental act, petitioners
suing as citizens may dodge the requirement of having to establish a direct
and personal interest if they show that the act affects a public right. But here,
aside from general statements that the petitions involve the protection of a
public right, and that their constitutional rights as citizens would be violated,
the petitioners failed to make any specific assertion of a particular public right
that would be violated by the enforcement of EDCA. For their failure to do so,
the present petitions cannot be considered by the Court as citizens suits that
would justify a disregard of the aforementioned requirements.
BRIONS DISSENT
NO. The EDCA, as a mere executive agreement entered by the President
with the US, is constitutionally deficient. The EDCA should be in the form of a
treaty as it brings back to the Philippines the modern equivalent of the foreign
military bases whose term expired in 1991 and which Art XVIII, Sec 25 of the
Constitution directly addresses; foreign troops under arrangements outside of
the contemplation of the visiting forces that the 1998 VFA allows; and military
facilities that, under modern military strategy, likewise can be brought in only
through a treaty.
DE CASTROS DISSENT
NO. EDCA is not a valid executive agreement entered into by the President
because it falls under those treaties and international agreements, which need
the concurrence of the Philippine Senate.
Article XVIII, Sec 25 of the 1987 Constitution is a special provision that
prohibits the entry of foreign military bases, troops or facilities in the
Philippines. As an exception, such would be allowed only if: first, the stay of
foreign military bases, troops, or facilities is allowed by a treaty; second, such
treaty is with the concurrence of the Senate, and when Congress so requires,
such treaty should be ratified by majority of the votes cast by the Filipino
people in a national referendum held for the purpose; and third, such treaty is
recognized as a treaty by the other contracting party.
Whether the stay of the foreign troops in the country is permanent or
temporary is immaterial because the Constitution does not distinguish. In the
case of EDCA, it clearly involves the entry of foreign military bases, troops or
agreement makes it an invalid treaty.
2. NO. The power to concur in a treaty or an international agreement is an
institutional prerogative granted by the Constitution to the Senate. In a
legislators suit, the injured party would be the Senate as an institution or any
of its incumbent members, as it is the Senates constitutional function that is
allegedly being violated. Here, none of the petitioners, who are former
senators, have the legal standing to maintain the suit.
3. YES. Although petitioners lack legal standing, they raise matters of
transcendental importance which justify setting aside the rule on procedural
technicalities. The challenge raised here is rooted in the very Constitution
itself, particularly Art XVIII, Sec 25 thereof, which provides for a stricter
mechanism required before any foreign military bases, troops or facilities may
be allowed in the country. Such is of paramount public interest that the Court
is behooved to determine whether there was grave abuse of discretion on the
part of the Executive Department.
BRIONS DISSENT
YES. The petitioners satisfied the requirement of legal standing in asserting
that a public right has been violated through the commission of an act with
grave abuse of discretion. The court may exercise its power of judicial review
over the act of the Executive Department in not submitting the EDCA
agreement for Senate concurrence not because of the transcendental
importance of the issue, but because the petitioners satisfy the requirements
in invoking the courts expanded jurisdiction.
4. NO. The EDCA need not be submitted to the Senate for concurrence
because it is in the form of a mere executive agreement, not a treaty. Under
the Constitution, the President is empowered to enter into executive
agreements on foreign military bases, troops or facilities if (1) such agreement
is not the instrument that allows the entry of such and (2) if it merely aims to
implement an existing law or treaty.
Second, the MDT covers defensive measures to counter an armed attack
against either of the parties territories or armed forces but there is nothing in
the MDT that specifically authorizes the presence, whether temporary or
permanent, of a partys bases, troops, or facilities in the other partys territory
even during peace time or in mere anticipation of an armed attack. The
presence of foreign military bases, troops, or facilities provided under the
EDCA cannot be traced to the MDT. Moreover, the general provisions of the
MDT cannot prevail over the categorical and specific provision of Section 25,
Article XVIII of the Constitution.
Hence, the EDCA as an agreement creating new rights and obligations must
satisfy the requirements under Sec 25, Art XIII of the Constitution.

EDCA is in the form of an executive agreement since it merely involves

adjustments in detail in the implementation of the MTD and the VFA. These
are existing treaties between the Philippines and the U.S. that have already
been concurred in by the Philippine Senate and have thereby met the
requirements of the Constitution under Art XVIII, Sec 25. Because of the
status of these prior agreements, EDCA need not be transmitted to the
Senate.

DE CASTROS DISSENT
NO. The EDCA is entirely a new treaty, separate and distinct from the VFA
and the MDT. Whether the stay of the foreign troops in the country is
permanent or temporary is immaterial because the Constitution does not
distinguish. The EDCA clearly involves the entry of foreign military bases,
troops or facilities in the country. Hence, the absence of Senate concurrence
to the agreement makes it an invalid treaty.
International Status of South-West Africa,

DE CASTROS OPINION
As to the issue of W/N the EDCA is merely an implementation of the VFA
and the MDT, Justice De Castro is of the opinion that it is not:

NO. The EDCA is entirely a new treaty, separate and distinct from the VFA
and the MDT.

First, while the VFA allows only the presence of US military troops, the EDCA
on the other hand contemplates the presence of not just the troops but also
military bases and facilities in the so-called Agreed Locations.
 Taada v. Angara
272 SCRA 18
FACTS: Following the devastation of World War II. The International Trade
Organization, together with the World Bank and the International Monetary
Fund, were tasked to hasten worldwide recovery. However, the ITO did not
take off and what was left was the 1947 General Agreement on Tariffs and
Trade. Fifty years after, the WTO came into existence on January 1, 1995,
upon the conclusion of the Marrakesh Agreement, promising liberalization of
trade.
The Philippines joined as a founding member, as articulated by President
Fidel Ramos in 2 letters to the Senate, believing that the country will benefit
from its system of dispute settlement.
DTI Secretary Navarro who signed the agreement in Marrakesh, Morocco, as
representative of the Republic. It was ratified by FVR. Such ratification
included the WTO Agreement and the annexes of the agreement and other
ministerial declarations and decisions.
Petitioners Wigberto Taada and Anna Dominique Coseteng, both Senators,
questioned such act, arguing that the WTO requires the Philippines to place
nationals and products of member-countries on the same footing as Filipinos
and local products and that the WTO intrudes, limits and/or impairs the
constitutional powers of both Congress and the Supreme Court. They also
assailed the WTO Agreement for violating the mandate of the 1987
Constitution to develop a self-reliant and independent national economy
effectively controlled by Filipinos.
Issues & Held:
1. W/N the Court has jurisdiction over the controversy YES
As the petition alleges grave abuse of discretion and as there is no
other plain, speedy or adequate remedy in the ordinary course of law,
we have no hesitation at all in holding that this petition should be
given due course. However, the SC will not review the wisdom of the
decision or the merits of trade liberalization, but only whether there
was grave abuse of discretion in ratifying the Agreement.
2. W/N the Court violates the mandate of the 1987 Constitution to
develop a self-reliant and independent national economy
effectively controlled by Filipinos NO
The provisions on national economy are not self-executory and
merely set out general policy. These provisions should not be read in
isolation, but together with Sec. 1 and 13 of Art. XII, wherein the State
shall promote industrialization and create competitive industries while
protecting enterprises from unfair competition and trade practices.
While the Constitution mandates a bias in favor of Filipino industry, it
recognizes the need for business exchange with the rest of the world
on the bases of equality and reciprocity. The Constitution does not
intend to pursue an isolationist policy or mendicancy.
Furthermore, the WTO has built-in advantages and concessions to
protect weak and developing economies, which comprise a majority
of its members. The decision to embark on economic liberalization is
a political question
The WTO reliance on trade without discrimination cannot be struck
down as unconstitutional as in fact they are rules of equality and
reciprocity that apply to all members. The fundamental law
encourages industries that are competitive in both domestic and
foreign markets instead of a sheltered domestic trade environment.
Furthermore, the Constitution favors consumers and general welfare
and not industries or business, which explains its thrust for
competition.
3. W/N the WTO Agreement infringes on the powers of Congress
NO
The WTO Agreement provides that each Member shall ensure the
conformity of its laws, regulations and administrative procedures with
its obligations. Petitioners maintain that this undertaking unduly limits,
restricts and impairs Philippine sovereignty, specifically the legislative
power because Congress cannot pass laws favoring Philippine
industries.
On the one hand, sovereignty is limited by international law and
treaties voluntarily entered into by the Philippines as a family of
nations. States surrender some aspects of their power in exchange of
greater benefits under a treaty. 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. The
Philippines follows the fundamental doctrine of pacta sunt servanda,
or that international agreements must be performed in good faith, as
treaties are legally binding obligations.
An example of this is how signing the UN charter limits Philippine
sovereignty by assisting the UN in defraying administrative costs and
 in its peacekeeping operations. By signing international agreements, Mijares v. Hon. Ranada,
Philippines has effectively agreed to limit the exercise of its sovereign
powers of taxation, eminent domain and police power. The underlying
consideration in this partial surrender of sovereignty is the reciprocal
commitment of the other contracting states in granting the same
privileges and immunities.

4. W/N the WTO Agreement infringes on judicial power NO

Petitioners aver that the Agreement on Trade-Related Aspects of

Intellectual Property Rights (TRIPS) intrudes on the power of the
Supreme Court to promulgate rules concerning pleading, practice and
procedures because it has its own burden of proof principle. However,
this is untenable because under local patent laws, there is a similar
presumption in cases of patent infringement. It states that identity or
substantial identity with the patented design or utility model shall
constitute evidence of copying.

By and large, the arguments adduced in connection with our

disposition of the third issue -- derogation of legislative power - will
apply to this fourth issue also. Suffice it to say that the reciprocity
clause more than justifies such intrusion, if any actually exists. So too,
since the Philippine is a signatory to most international conventions
on patents, trademarks and copyrights, the adjustment in legislation
and rules of procedure will not be substantial.

5. W/N the Senate concurrence is defective and insufficient

because concurrence in only the WTO agreement rejects the
Final Act, which was signed by Sec. Navarro NO

The final act only winds up the proceedings. It is not the treaty itself.
The assailed Senate Resolution expressed concurrence of what the
Final Act summarizes, which is the WTO Agreement itself. The
Ministerial Declarations and Decisions were deemed adopted without
need for ratification. They were approved by the ministers by virtue of
Article XXV: 1 of GATT which provides that representatives of the
members can meet to give effect to those provisions of this
Agreement which invoke joint action, and generally with a view to
facilitating the operation and furthering the objectives of this
Agreement.
MEDELLIN V TEXAS
FACTS:
Background: Avena case: The ICJ held that, based on violations of the Vienna
Convention, 51 named Mexican nationals were entitled to review and
reconsideration of their state-court convictions and sentences in the United
States. This was so regardless of any forfeiture of the right to raise Vienna
Convention claims because of a failure to comply with generally applicable
state rules governing challenges to criminal convictions. In a later case
involving other people not named in Avena, the Court ruled that the Vienna
Convention did not preclude the application of state default rules. After the
Avena decision, President Bush issued a Memorandum, stating that he United
States would discharge its international obligations under Avena by having
State courts give effect to the decision.
Petitioner Jos Ernesto Medelln, who had been convicted and sentenced in
Texas state court for murder, is one of the 51 Mexican nationals named in
the Avena decision. Relying on Avena and the Presidents Memorandum,
Medelln filed a second Texas state-court habeas application challenging his
state capital murder conviction and death sentence on the ground that he had
not been informed of his Vienna Convention rights. The Texas Court of
Criminal Appeals dismissed Medellns application as an abuse of the writ,
concluding that neither Avena nor the Presidents Memorandum was binding
federal law that could displace the States limitations on filing successive
habeas applications.
ISSUES/HELD:
1. is the ICJs judgment in Avena directly enforceable as domestic law
in a state court in the United States? NO.
Background: The US ratified the Vienna Convention on Consular
Relations (Convention) and the Protocol Concerning Settlements of
Disputes to the Vienna Convention (Protocol).
The Convention provides that if a person detained by a foreign
country so requests, the competent authorities of the receiving
State shall, without delay, inform the consular post of the send ing
State of such detention, and inform the [detainee] of his righ[t]
to request assistance from the consul of his own state.
The Protocol provides a venue for the resolu tion of disputes
arising out of the interpretation or application of the Vienna
Convention. Under the Protocol, such disputes shall lie within the
compulsory jurisdiction of the International Court of Justice and
may accordingly be brought before the [ICJ] . . . by any party to
the dispute being a Party to the pre sent Protocol.
(1) UN Charter - [e]ach Member of the United Nations
undertakes to comply with the decision of the [ICJ] in any case to
which it is a party.
The ICJs jurisdiction in any particular case, however, is
dependent upon the consent of the parties.
How to give consent:
consent generally to jurisdiction on any question
arising under a treaty or general international law ->
THE US DID THIS but withdrew
specifically to jurisdiction over a particular category of
cases or disputes pursuant to a separate treaty -> US
did this when it ratified the Protocol; the United States
consented to the specific jurisdiction of the ICJ with
respect to claims arising out of the Vienna Con-
vention.
Medellin avers that the Avena case is a binding federal rule of the
decision that pre-empts contrary state limitations on successive
habeas petitions. They contend also that the Protocol, UN
Charter, and the ICJ Statute supply the relevant obligation to give
the Avena judgment binding effect in the domestic courts. NOPE!
a treaty is equivalent to an act of the legislature, and hence
self- executing, when it operates of itself without the aid of
any legislative provision.
[treaty] stipulations are not self-executing they can only be
enforced pursuant to legislation to carry them into effect.
Because none of these treaty sources creates binding federal
law in the absence of implementing legislation, and because it
is uncontested that no such legislation exists, we conclude
that the Avena judgment is not automatically binding domestic
law.
The Protocol only grants jurisdiction. It is silent as to the binding force
of ICJ decisions.
The relevant UN Charter provision (see (1)) does not mean that an
ICJ decision will immediately have a legal effect in the domestic
courts, but rather a commitment on the part of UN ember to take
future action through its political branches to comply with an ICJ
decision.
That the Avena case does not by itself constitute binding federal law
is confirmed by the post-ratification understanding of signatory
nations.
 There are currently 47 nations that are parties to the Optional A non-self-executing treaty, by definition, is one that was
Protocol and 171 nations that are parties to the Vienna ratified with the understanding that it is not to have domestic
Convention. Yet neither Medelln nor his amici have identified a effect of its own force.
single nation that treats ICJ judgments as binding in domestic The United States nonetheless maintains that the Presidents
courts. Memorandum should be given effect as domes tic law because this
case involves a valid Presidential action in the context of
2. does the Presidents Memorandum independently require the States Congressional acquiescence(when there is an absence of a grant or
to provide review and reconsideration of the claims of the 51 denial of authority). NOPE!
Mexican nationals named in Avena without regard to state The President still has no authority to turn a non-self-executing
procedural default rules? NO. treaty to a self-executing one, since only the Congress can do
Medelln next argues that the ICJs judgment in Avena is binding on this.
state courts by virtue of the Presidents February 28, 2005 The Presidents Memorandum is not supported by a particularly
Memorandum. The United States contends that while the Avena longstanding practice of congressional acquiescence.
judgment does not of its own force require domestic courts to set 3.
aside ordinary rules of procedural default, that judgment became the
law of the land with precisely that effect pursuant to the Presidents
Memorandum and his power to establish binding rules of decision
that preempt contrary state law.
Though it is correct the the President seeks to ensure the reciprocal
observance of the convention, this does not mean that certain
principles would be set aside.
The Presidents authority to act must stem from law or the
Constitution. If the act comes from law/Constitution, the
Presidents authority is at its maximum. When there is an
absence of a grant, he can only rely on his own independent
powers. If the Presidents acts are incompatible with the
expressed or implied will of Congress, his power is at the
minimum and the Court can only sustain his actions by disabling
the Congress from acting upon the subject.
The US maintains that the Memorandum is authorized by the Protocol
and the UN Charter. NOPE!
The President has an array of political and diplomatic means
available to enforce international obligations, but unilaterally
converting a non-self executing treaty into a self-executing
one is not among them.
The responsibility for transforming an international obligation
arising from a non-self-executing treaty into domestic law falls to
Congress.
the terms of a non-self-executing treaty can become domestic law
only in the same way as any other lawthrough passage of
legislation by both Houses of Congress, combined with either the
Presidents signature or a congressional override of a Presidential
veto.