Bayan vs Zamora G.R. No. 138570, Oct.

10, 2000

On March 14, 1947, the Philippines and the United States of America forged a
Military Bases Agreement which formalized, among others, the use of
installations in the Philippine territory by United States military personnel. To
further strengthen their defense and security relationship, the Philippines and the
United States entered into a Mutual Defense Treaty on August 30, 1951. Under
the treaty, the parties agreed to respond to any external armed attack on their
territory, armed forces, public vessels, and aircraft.
In view of the impending expiration of the RP-US Military Bases Agreement in
1991, the Philippines and the United States negotiated for a possible extension
of the military bases agreement.
On July 18, 1997, the United States panel, headed by US Defense Deputy
Assistant Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel,
headed by Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange
notes on “the complementing strategic interests of the United States and the
Philippines in the Asia-Pacific region.” Both sides discussed, among other things,
the possible elements of the Visiting Forces Agreement (VFA for brevity).
Negotiations by both panels on the VFA led to a consolidated draft text, which in
turn resulted to a final series of conferences and negotiations that culminated in
Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos
approved the VFA, which was respectively signed by public respondent
Secretary Siazon and Unites States Ambassador Thomas Hubbard on February
10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary
of Foreign Affairs, ratified the VFA. On October 6, 1998, the President, acting
through respondent Executive Secretary Ronaldo Zamora, officially transmitted
to the Senate of the Philippines, the Instrument of Ratification, the letter of the
President and the VFA, for concurrence pursuant to Section 21, Article VII of the
1987 Constitution. The Senate, in turn, referred the VFA to its Committee on
Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on
National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their
joint consideration and recommendation. Thereafter, joint public hearings were
held by the two Committees.
On May 3, 1999, the Committees submitted Proposed Senate Resolution No.
443 recommending the concurrence of the Senate to the VFA and the creation of
a Legislative Oversight Committee to oversee its implementation. Debates then
ensued. On May 27, 1999, Proposed Senate Resolution No. 443 was approved
by the Senate, by a two-thirds (2/3) vote of its members. Senate Resolution No.
443 was then re-numbered as Senate Resolution No. 18.
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes
between respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the
mechanism for regulating the circumstances and conditions under which US
Armed Forces and defense personnel may be present in the Philippines.
Petitioners – as legislators, non-governmental organizations, citizens, and
taxpayers – assail the constitutionality of the VFA and impute to herein
respondents grave abuse of discretion in ratifying the agreement.
– The issue her is whether or not the Visiting Forces Agreement entered by the
Republic of the Philippines and the United Sates is constitutional or
unconstitutional.
– The Supreme Court held that the Visiting Forces Agreement is constitutional
having been duly concurred in by the Philippine Senate. The Republic of the
Philippines cannot require the United States to submit the agreement to the US
Senate for concurrence, for that would be giving a strict construction to the
phrase “recognized as a treaty”. US treats VFA as an executive agreement
because as governed by international law, an executive agreement is just as
binding as a treaty.

Lim v. Executive Secretary

FACTS:
Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel
from the armed forces of the United States of America started arriving in
Mindanao to take partin "Balikatan 02-1” on January 2002. The Balikatan 02-1
exercises involves the simulation of joint military maneuvers pursuant to the
Mutual Defense Treaty, a bilateral defense agreement entered into by the
Philippines and the United States in 1951. The exercise is rooted from the
international anti-terrorism campaign declared by President George W. Bush in
reaction to the 3 commercial aircrafts hijacking that smashed into twin towers of
the World Trade Center in New York City and the Pentagon building in
Washington, D.C. allegedly by the al-Qaeda headed by the Osama bin Laden
that occurred on September 11, 2001. Arthur D. Lim and Paulino P. Ersando as
citizens, lawyers and taxpayers filed a petition for certiorari and prohibition
attacking the constitutionality of the joint exercise. Partylists Sanlakas and
Partido Ng Manggagawa as residents of Zamboanga and Sulu directly affected
by the operations filed a petition-in-intervention.

The Solicitor General commented the prematurity of the action as it is based

only on a fear of future violation of the Terms of Reference and impropriety of
availing of certiorari to ascertain a question of fact specifically interpretation of
the VFA whether it is covers "Balikatan 02-1” and no question of constitutionality
is involved. Moreover, there is lack of locus standi since it does not involve tax
spending and there is no proof of direct personal injury.

ISSUE: W/N the petition and the petition-in-intervention should prosper.

HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED

without prejudice to the filing of a new petition sufficient in form and substance in
the proper Regional Trial Court - Supreme Court is not a trier of facts
Doctrine of Importance to the Public
Considering however the importance to the public of the case at bar, and in
keeping with the Court's duty, under the 1987 Constitution, to determine whether
or not the other branches of the government have kept themselves within the
limits of the Constitution and the laws that they have not abused the discretion
given to them, the Court has brushed aside technicalities of procedure and has
taken cognizance of this petition.

Although courts generally avoid having to decide a constitutional question based

on the doctrine of separation of powers, which enjoins upon the department of
the government a becoming respect for each other's act, this Court nevertheless
resolves to take cognizance of the instant petition.

Interpretation of Treaty
The VFA permits United States personnel to engage, on an impermanent basis,
in "activities," the exact meaning of which was left undefined. The expression is
ambiguous, permitting a wide scope of undertakings subject only to the approval
of the Philippine government. The sole encumbrance placed on its definition is
couched in the negative, in that United States personnel must "abstain from any
activity inconsistent with the spirit of this agreement, and in particular, from any
political activity." All other activities, in other words, are fair game.
To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION
3 and Article 32 contains provisos governing interpretations of international
agreements. 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. According to Professor Briggs, writer on the Convention, the distinction
between the general rule of interpretation and the supplementary means of
interpretation is intended rather to ensure that the supplementary means do not
constitute an alternative, autonomous method of interpretation divorced from the
general rule.

The meaning of the word “activities" was deliberately made that way to give both
parties a certain leeway in negotiation. Thus, the VFA gives legitimacy to the
current Balikatan exercises. Both the history and intent of the Mutual Defense
Treaty and the VFA support the conclusion that combat-related activities -as
opposed to combat itself -such as the one subject of the instant petition, are
indeed authorized.
The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates
that US exercise participants may not engage in combat "except in self-
defense." ." The indirect violation is actually petitioners' worry, that in reality,
"Balikatan 02-1" is actually a war principally conducted by the United States
government, and that the provision on self-defense serves only as camouflage to
conceal the true nature of the exercise. A clear pronouncement on this matter
thereby becomes crucial. In our considered opinion, neither the MDT nor the
VFA allow foreign troops to engage in an offensive war on Philippine
territory. Under the salutary proscription stated in Article 2 of the Charter of the
United Nations.
Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all
other treaties and international agreements to which the Philippines is a party,
must be read in the context of the 1987 Constitution especially Sec. 2, 7 and 8 of
Article 2: Declaration of Principles and State Policies in this case. The
Constitution also regulates the foreign relations powers of the Chief Executive
when it provides that "[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the members of the
Senate." Even more pointedly Sec. 25 on Transitory Provisions which shows
antipathy towards foreign military presence in the country, or of foreign influence
in general. Hence, foreign troops are allowed entry into the Philippines only by
way of direct exception.
International Law vs. Fundamental Law and Municipal Laws
Conflict arises then between the fundamental law and our obligations arising
from international agreements.
Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law has
been made part of the law of the land does not by any means imply the primacy
of international law over national law in the municipal sphere. Under the doctrine
of incorporation as applied in most countries, rules of international law are given
a standing equal, not superior, to national legislation.”
From the perspective of public international law, a treaty is favored over
municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very
treaty in force is binding upon the parties to it and must be performed by them in
good faith." Further, a party to a treaty is not allowed to "invoke the provisions of
its internal law as justification for its failure to perform a treaty."
Our Constitution espouses the opposing view as stated in section 5 of Article VIII:
“The Supreme Court shall have the following powers: xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or
the Rules of Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.”
Ichong v. Hernandez: “provisions of a treaty are always subject to qualification or
amendment by a subsequent law, or that it is subject to the police power of the
State”
Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty,
not only when it conflicts with the fundamental law, but, also, when it runs
counter to an act of Congress.”
The foregoing premises leave us no doubt that US forces are prohibited / from
engaging in an offensive war on Philippine territory.
Pimentel vs Executive Secretary , G.R. No. 158088 , July 6, 2005

Facts :This is a petition of Senator Aquilino Pimentel and the other parties to ask
the Supreme Court to require the Executive Department to transmit the Rome
Statute which established the International Criminal Court for the Senate’s
concurrence in accordance with Sec 21, Art 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.
Respondents on the other hand, questioned the legal standing of herein
petitioners and argued that executive department has no duty to transmit the
Rome Statute to the Senate for concurrence.
Issues : Whether or not petitioners have the legal standing to file the instant suit.
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.
Ruling : Only Senator Pimentel has a legal standing to the extent of his power as
member of Congress. Other petitioners have not shown that they have sustained
a direct injury from the non-transmittal and that they can seek redress in our
domestic courts.
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,
Thus, the petition is DISMISSED.

Pharmaceutical vs. 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

Province of North Cotabato vs. GRP Peace Panel

Facts:

Subject of this case is the Memorandum of Agreement on the Ancestral Domain

(MOA-AD) which is scheduled to be signed by the Government of the Republic of
the Philippines and the MILF in August 05, 2008. Five cases bearing the same
subject matter were consolidated by this court namely:-

GR 183591 by the Province of Cotabato and Vice Governor Pinol on its prayer
to declare unconstitutional and to have the MOA-AD disclosed to the public and
be open for public consultation.
GR 183752 by the City of Zamboanga et al on its prayer to declare null and void
said MOA-AD and to exclude the city to the BJE.
GR 183893 by the City of Iligan enjoining the respondents from signing the MOA-
AD and additionally impleading Exec. Sec. Ermita.
GR 183951 by the Province of Zamboanga del Norte et al, praying to declare null
and void the MOA-AD and without operative effect and those respondents
enjoined from executing the MOA-AD.
GR 183692 by Maceda, Binay and Pimentel III, praying for a judgment prohibiting
and permanently enjoining respondents from formally signing and executing the
MOA-AD and or any other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal and impleading Iqbal.

The MOA-AD is a result of various agreements entered into by and

between the government and the MILF starting in 1996; then in 1997, they
signed the Agreement on General Cessation of Hostilities; and the following year,
they signed the General Framework of Agreement of Intent on August 27, 1998.
However, in 1999 and in the early of 2000, the MILF attacked a number of
municipalities in Central Mindanao. In March 2000, they took the hall of
Kauswagan, Lanao del Norte; hence, then Pres. Estrada declared an all-out war-
which tolled the peace negotiation. It was when then Pres. Arroyo assumed
office, when the negotiation regarding peace in Mindanao continued. MILF was
hesitant; however, this negotiation proceeded when the government of Malaysia
interceded. Formal peace talks resumed and MILF suspended all its military
actions. The Tripoli Agreement in 2001 lead to the ceasefire between the parties.
After the death of MILF Chairman Hashim and Iqbal took over his position, the
crafting of MOA-AD in its final form was born.

MOA-AD Overview
This is an agreement to be signed by the GRP and the MILF. Used as reference
in the birth of this MOA-AD are the Tripoli Agreement, organic act of ARMM,
IPRA Law, international laws such as ILO Convention 169, the UN Charter etc.,
and the principle of Islam i.e compact right entrenchment (law of compact, treaty
and order). The body is divided into concepts and principles, territory, resources,
and governance.

Embodied in concepts and principles, is the definition of Bangsamoro as all

indigenous peoples of Mindanao and its adjacent islands. These people have the
right to self- governance of their Bangsamoro homeland to which they have
exclusive ownership by virtue of their prior rights of occupation in the land. The
MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with
defined territory and with a system of government having entered into treaties of
amity and commerce with foreign nations." It then mentions for the first time the
"Bangsamoro Juridical Entity" (BJE) to which it grants the authority and
jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro.

As defined in the territory of the MOA-AD, the BJE shall embrace the Mindanao-
Sulu-Palawan geographic region, involving the present ARMM, parts of which are
those which voted in the inclusion to ARMM in a plebiscite. The territory is
divided into two categories, “A” which will be subject to plebiscite not later than
12 mos. after the signing and “B” which will be subject to plebiscite 25 years from
the signing of another separate agreement. Embodied in the MOA-AD that the
BJE shall have jurisdiction over the internal waters-15kms from the coastline of
the BJE territory; they 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 government shall exercise joint
jurisdiction, authority and management over all natural resources. There will also
be sharing of minerals in the territorial waters; but no provision on the internal
waters.

Included in the resources is the stipulation 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, as well as
environmental cooperation agreements, but not to include aggression in the
GRP. The external defense of the BJE is to remain the duty and obligation of the
government. The BJE shall have participation in international meetings and
events" like those of the ASEAN and the specialized agencies of the UN. They
are to be entitled to participate in Philippine official missions and delegations for
the negotiation of border agreements or protocols for environmental protection
and equitable sharing of incomes and revenues involving the bodies of water
adjacent to or between the islands forming part of the ancestral domain. The BJE
shall also have the right to explore its resources and that the sharing between the
Central Government and the BJE of total production pertaining to natural
resources is to be 75:25 in favor of the BJE. And they shall have the right to
cancel or modify concessions and TLAs.

And lastly in the governance, the MOA-AD claims that the relationship between
the GRP and MILF is associative i.e. characterized by shared authority and
responsibility. This structure of governance shall be further discussed in the
Comprehensive Compact, a stipulation which was highly contested before the
court. The BJE shall also be given the right to build, develop and maintain its own
institutions, the details of which shall be discussed in the comprehensive
compact as well.

Issues:

1. WON the petitions have complied with the procedural requirements for the
exercise of judicial review
2. WON respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later initialed
the MOA-AD; and
3. WON the contents of the MOA-AD violated the Constitution and the laws

Ruling:

The SC declared the MOA-AD contrary to law and the Constitution.

On the Procedural Issue

1st issue: As regards the procedural issue, SC upheld that there is indeed a need
for the exercise of judicial review.

The power of judicial review is limited to actual cases or controversy, that is the
court will decline on issues that are hypothetical, feigned problems or mere
academic questions. Related to the requirement of an actual case or controversy
is the requirement of ripeness. The contention of the SolGen is that there is no
issue ripe for adjudication since the MOA-AD is only a proposal and does not
automatically create legally demandable rights and obligations. Such was
denied.

The SC emphasized that the petitions are alleging acts made in violation of their
duty or in grave abuse of discretion. Well-settled jurisprudence states that acts
made by authority which exceed their authority, by violating their duties under
E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make
a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual case
or controversy ripe for adjudication exists. When an act of a branch of
government is seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute. This is aside
from the fact that concrete acts made under the MOA-AD are not necessary to
render the present controversy ripe and that the law or act in question as not yet
effective does not negate ripeness.

With regards to the locus standi, the court upheld the personalities of the
Province of Cotabato, Province of Zamboanga del norte, City of Iligan, City of
Zamboanga, petitioners in intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linnamon to have locus standi since it is their LGUs
which will be affected in whole or in part if include within the BJE. Intervenors
Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert
that government funds would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On that score alone,
they can be given legal standing. Senator Mar Roxas is also given a standing as
an intervenor. And lastly, the Intervening respondents Muslim Multi-Sectoral
Movement for Peace and Development, an advocacy group for justice and the
attainment of peace and prosperity in Muslim Mindanao; and Muslim Legal
Assistance Foundation Inc., a non-government organization of Muslim lawyers
since they stand to be benefited or prejudiced in the resolution of the petitions
regarding the MOA-AD.

On the contention of mootness of the issue considering the signing of the MOA-
AD has already been suspended and that the President has already disbanded
the GRP, the SC disagrees. The court reiterates that the moot and academic
principle is a general rule only, the exceptions, provided in David v. Macapagal-
Arroyo, that it will decide cases, otherwise moot and academic, if it finds that (a)
there is a grave violation of the Constitution; (b) the situation is of exceptional
character and paramount public interest is involved; (c) the constitutional issue
raised requires formulation of controlling principles to guide the bench, the bar,
and the public; and (d) the case is capable of repetition yet evading review; and
that where there is a voluntary cessation of the activity complained of by the
defendant or doer, it does not divest the court the power to hear and try the case
especially when the plaintiff is seeking for damages or injunctive relief.

Clearly, the suspension of the signing of the MOA-AD and the disbandment of
the GRP did not render the petitions moot and academic. The MOA-AD is subject
to further legal enactments including possible Constitutional amendments more
than ever provides impetus for the Court to formulate controlling principles to
guide the bench, the bar, the public and, in this case, the government and its
negotiating entity.
At all events, the Court has jurisdiction over most if not the rest of the petitions.
There is a reasonable expectation that petitioners will again be subjected to the
same problem in the future as respondents' actions are capable of repetition, in
another or any form. But with respect to the prayer of Mandamus to the signing of
the MOA-AD, such has become moot and academic considering that parties
have already complied thereat.

On the Substantive Issue

2nd Issue: The SC ruled that the MOA-AD is a matter of public concern, involving
as it does the sovereignty and territorial integrity of the State, which directly
affects the lives of the public at large.

As enshrined in the Constitution, the right to information guarantees the right of

the people to demand information, and integrated therein is the recognition of the
duty of the officialdom to give information even if nobody demands. The policy of
public disclosure establishes a concrete ethical principle for the conduct of public
affairs in a genuinely open democracy, with the people's right to know as the
centerpiece. It is a mandate of the State to be accountable by following such
policy. These provisions are vital to the exercise of the freedom of expression
and essential to hold public officials at all times accountable to the people.

Also, it was held that such stipulation in the Constitution is self-executory with
reasonable safeguards —the effectivity of which need not await the passing of a
statute. Hence, it is essential to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of
the State that the channels for free political discussion be maintained to the end
that the government may perceive and be responsive to the people's will.

The idea of a feedback mechanism was also sought for since it is corollary to the
twin rights to information and disclosure. And feedback means not only the
conduct of the plebiscite as per the contention of the respondents. Clearly, what
the law states is the right of the petitioners to be consulted in the peace agenda
as corollary to the constitutional right to information and disclosure. As such,
respondent Esperon committed grave abuse of discretion for failing to carry out
the furtive process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and amounts to a whimsical,
capricious, oppressive, arbitrary and despotic exercise thereto. Moreover, he
cannot invoke of executive privilege because he already waived it when he
complied with the Court’s order to the unqualified disclosure of the official copies
of the final draft of the MOA-AD.

In addition, the LGU petitioners has the right to be involved in matters related to
such peace talks as enshrined in the State policy. The MOA-AD is one peculiar
program that unequivocally and unilaterally vests ownership of a vast territory to
the Bangsamoro people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment.

With respect to the ICC/IPPs they also have the right to participate fully at all
levels on decisions that would clearly affect their lives, rights and destinies. The
MOA-AD is an instrument recognizing ancestral domain, hence it should have
observed the free and prior informed consent to the ICC/IPPs; but it failed to do
so. More specially noted by the court is the excess in authority exercised by the
respondent—since they allowed delineation and recognition of ancestral domain
claim by mere agreement and compromise; such power cannot be found in IPRA
or in any law to the effect.

3rd issue: With regard to the provisions of the MOA-AD, there can be no
question that they cannot be all accommodated under the present Constitution
and laws. Not only its specific provisions but the very concept underlying them:

On matters of the Constitution.

Association as the type of relationship governing between the parties. The
parties manifested that in crafting the MOA-AD, the term association was
adapted from the international law. In international law, association happens
when two states of equal power voluntarily establish durable links i.e. the one
state, the associate, delegates certain responsibilities to the other, principal,
while maintaining its international status as state; free association is a middle
ground between integration and independence. The MOA-AD contains many
provisions that are consistent with the international definition of association which
fairly would deduced that the agreement vest into the BJE a status of an
associated state, or at any rate, a status closely approximating it. The court
vehemently objects because the principle of association is not recognized under
the present Constitution.

On the recognition of the BJE entity as a state. The concept implies power
beyond what the Constitution can grant to a local government; even the ARMM
do not have such recognition; and the fact is such concept implies recognition of
the associated entity as a state. There is nothing in the law that contemplate any
state within the jurisdiction other than the Philippine State, much less does it
provide for a transitory status that aims to prepare any part of Philippine territory
for independence. The court disagrees with the respondent that the MOA-AD
merely expands the ARMM. BJE is a state in all but name as it meets the criteria
of a state laid down in the Montevideo Convention, namely, a permanent
population, a defined territory, a government, and a capacity to enter into
relations with other states. As such the MOA-AD clearly runs counter to the
national sovereignty and territorial integrity of the Republic.

On the expansion of the territory of the BJE. The territory included in the BJE
includes those areas who voted in the plebiscite for them to become part of the
ARMM. The stipulation of the respondents in the MOA-AD that these areas need
not participate in the plebiscite is in contrary to the express provision of the
Constitution. The law states that that "[t]he creation of the autonomous region
shall be effective when approved by a 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." Clearly, assuming that the BJE is just an
expansion of the ARMM, it would still run afoul the wordings of the law since
those included in its territory are areas which voted in its inclusion to the ARMM
and not to the BJE.

On the powers vested in the BJE as an entity. The respondents contend that the
powers vested to the BJE in the MOA-AD shall be within sub-paragraph 9 of sec
20, art. 10 of the constitution and that a mere passage of a law is necessary in
order to vest in the BJE powers included in the agreement. The Court was not
persuaded. SC ruled that such conferment calls for amendment of the
Constitution; otherwise new legislation will not concur with the Constitution. Take
for instance the treaty making power vested to the BJE in the MOA-AD. The
Constitution is clear that only the President has the sole organ and is the
country’s sole representative with foreign nation. Should the BJE be granted with
the authority to negotiate with other states, the former provision must be
amended consequently. Section 22 must also be amended—the provision of the
law that promotes national unity and development. Because clearly, associative
arrangement of the MOA-AD does not epitomize national unity but rather, of
semblance of unity. The associative ties between the BJE and the national
government, the act of placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for independence, is
certainly not conducive to national unity.

On matters of domestic statutes.

o Provisions contrary to the organic act of ARMM. RA 9054 is a bar to the
adoption of the definition of Bangsamoro people used in the MOA-AD. Said law
specifically distinguishes between the Bangsamoro people and the Tribal
peoples that is contrary with the definition of the MOA-AD which includes all
indigenous people of Mindanao.

o Provisions contrary to the IPRA law. Also, the delineation and recognition of
the ancestral domain is a clear departure from the procedure embodied in the
IPRA law which ironically is the term of reference of the MOA-AD.

On matters of international law.

The Philippines adopts the generally accepted principle of international law as
part of the law of the land. In international law, the right to self-determination has
long been recognized which states that people can freely determine their political
status and freely pursue their economic, social, and cultural development. There
are the internal and external self-determination—internal, meaning the self-
pursuit of man and the external which takes the form of the assertion of the right
to unilateral secession. This principle of self-determination is viewed with respect
accorded to the territorial integrity of existing states. External self-determination
is only afforded in exceptional cases when there is an actual block in the
meaningful exercise of the right to internal self-determination. International law,
as a general rule, subject only to limited and exceptional cases, recognizes that
the right of disposing national territory is essentially an attribute of the
sovereignty of every state.

On matters relative to indigenous people, international law states that indigenous

peoples situated within states do not have a general right to independence or
secession from those states under international law, but they do have rights
amounting to what was discussed above as the right to internal self-
determination; have the right to autonomy or self-government in matters relating
to their internal and local affairs, as well as ways and means for financing their
autonomous functions; have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or acquired.

Clearly, there is nothing in the law that required the State to guarantee the
indigenous people their own police and security force; but rather, it shall be the
State, through police officers, that will provide for the protection of the people.
With regards to the autonomy of the indigenous people, the law does not obligate
States to grant indigenous peoples the near-independent status of a state; since
it would impair the territorial integrity or political unity of sovereign and
independent states.

On the basis of the suspensive clause.

o It was contented by the respondents that grave abuse of discretion cannot be
had, since the provisions assailed as unconstitutional shall not take effect until
the necessary changes to the legal framework are effected.

The Court is not persuaded. This suspensive clause runs contrary to

Memorandum of Instructions from the President stating that negotiations shall be
conducted in accordance to the territorial integrity of the country—such was
negated by the provision on association incorporated in the MOA-AD. Apart from
this, the suspensive clause was also held invalid because of the delegated power
to the GRP Peace panel to advance peace talks even if it will require new
legislation or even constitutional amendments. The legality of the suspensive
clause hence hinges on the query whether the President can exercise such
power as delegated by EO No.3 to the GRP Peace Panel. Well settled is the rule
that the President cannot delegate a power that she herself does not possess.
The power of the President to conduct peace negotiations is not explicitly
mentioned in the Constitution but is rather implied from her powers as Chief
Executive and Commander-in-chief. As Chief Executive, the President has the
general responsibility to promote public peace, and as Commander-in-Chief, she
has the more specific duty to prevent and suppress rebellion and lawless
violence.
As such, the President is given the leeway to explore, in the course of peace
negotiations, solutions that may require changes to the Constitution for their
implementation. At all event, the president may not, of course, unilaterally
implement the solutions that she considers viable; but she may not be prevented
from submitting them as recommendations to Congress, which could then, if it is
minded, act upon them pursuant to the legal procedures for constitutional
amendment and revision.

While the President does not possess constituent powers - as those powers may
be exercised only by Congress, a Constitutional Convention, or the people
through initiative and referendum - she may submit proposals for constitutional
change to Congress in a manner that does not involve the arrogation of
constituent powers. Clearly, the principle may be inferred that the President - in
the course of conducting peace negotiations - may validly consider implementing
even those policies that require changes to the Constitution, but she may not
unilaterally implement them without the intervention of Congress, or act in any
way as if the assent of that body were assumed as a certainty. The President’s
power is limited only to the preservation and defense of the Constitution but not
changing the same but simply recommending proposed amendments or
revisions.

o The Court ruled that the suspensive clause is not a suspensive condition but
is a term because it is not a question of whether the necessary changes to the
legal framework will take effect; but, when. Hence, the stipulation is mandatory
for the GRP to effect the changes to the legal framework –which changes would
include constitutional amendments. Simply put, the suspensive clause is
inconsistent with the limits of the President's authority to propose constitutional
amendments, it being a virtual guarantee that the Constitution and the laws of the
Republic of the Philippines will certainly be adjusted to conform to all the
"consensus points" found in the MOA-AD. Hence, it must be struck down as
unconstitutional.

On the concept underlying the MOA-AD.

While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a constitutional violation that
renders the MOA-AD fatally defective. The MOA-AD not being a document that
can bind the Philippines under international law notwithstanding, respondents'
almost consummated act of guaranteeing amendments to the legal framework is,
by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies
not in the fact that they considered, as a solution to the Moro Problem, the
creation of a state within a state, but in their brazen willingness to guarantee that
Congress and the sovereign Filipino people would give their imprimatur to their
solution. Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the
people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an
undue influence or interference with that process.

BAYAN MUNA v. ALBERTO ROMULO

FACTS:

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

On December 28, 2000, the RP, through Charge d'Affaires Enrique A. Manalo,
signed the Rome Statute which, by its terms,is subject to ratification, acceptance
or approval by the signatory states. As of the filing of the instant petition,only 92
out of the 139 signatory countries appear to have completed the ratification,
approval and concurrence process.The Philippines is not among the 92.

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy

Note No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of
the non-surrender bilateral agreement (Agreement, hereinafter) between the
USA and the RP.

ViaExchange of Notes No. BFO-028-03 dated May 13, 2003 (E/N BFO-028-03,
hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and
accepted the US proposals embodied under the US Embassy Note adverted to
and put in effect the Agreement with the US government.Inesse,
theAgreementaims to protect what it refers to and defines aspersons of the RP
and US from frivolous and harassment suits that might be brought against them
in international tribunals.[8]It is reflective of the increasing pace of the strategic
security and defense partnership between the two countries.As of May 2, 2003,
similar bilateral agreements have been effected by and between theUSand 33
other countries.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status

of the non-surrender agreement, Ambassador Ricciardone replied in his letter of
October 28, 2003 that the exchange of diplomatic notes constituted a legally
binding agreement under international law; and that, under US law, the said
agreement did not require the advice and consent of the US Senate.
In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be struck down as
unconstitutional, or at least declared as without force and effect.

For their part, respondents question petitioners standing to maintain a suit and
counter that the Agreement, being in the nature of an executive agreement, does
not require Senate concurrence for its efficacy. And for reasons detailed in their
comment, respondents assert the constitutionality of the Agreement.

ISSUES:

Whether or not the Agreement, which has not been submitted to the Senate for
concurrence, contravenes and undermines the Rome Statute and other treaties.
But because respondents expectedly raised it, we shall first tackle the issue of
petitioners legal standing

POLITICAL LAW: The Agreement Not in Contravention of the Rome Statute

Contrary to petitioners pretense, theAgreementdoes not contravene or

undermine, nor does it differ from, the Rome Statute.Far from going against each
other, one complements the other.As a matter of fact, the principle of
complementarity underpins the creation of the ICC.As aptly pointed out by
respondents and admitted by petitioners, the jurisdiction of the ICC is to be
complementary to national criminal jurisdictions of the signatory states. Art. 1 of
the Rome Statute pertinently provides:

Article 1

The Court
AnInternational Crimininal Court(the Court) is hereby established.It x x xshall
have the power to exercise its jurisdictionover persons for the most serious
crimes of international concern, as referred to in this Statute, andshall be
complementary to national criminal jurisdictions.The jurisdiction and functioning
of the Court shall be governed by the provisions of this Statute.

Significantly, the sixth preambular paragraph of the Rome Statute declares that it
is the duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes.This provision indicates that primary
jurisdiction over the so-called international crimes rests, at the first instance, with
the state where the crime was committed; secondarily, with the ICC in
appropriate situations contemplated under Art. 17, par. 1of theRomeStatute.

Of particular note is the application of the principle ofne bis in idemunder par. 3 of
Art. 20, Rome Statute, which again underscores the primacy of the jurisdiction of
a state vis-a-vis that of the ICC.As far as relevant, the provision states that no
person who has been tried by another court for conduct [constituting crimes
within its jurisdiction] shall be tried by the [International Criminal] Court with
respect to the same conduct.

The foregoing provisions of the Rome Statute, taken collectively, argue against
the idea of jurisdictional conflict between the Philippines, as party to the non-
surrender agreement, and the ICC; or the idea of theAgreementsubstantially
impairing the value of the RPs undertaking under the Rome Statute.Ignoring for a
while the fact that the RP signed the Rome Statute ahead of the Agreement, it is
abundantly clear to us that the Rome Statute expressly recognizes the primary
jurisdiction of states, like the RP, over serious crimes committed within their
respective borders, the complementary jurisdiction of the ICC coming into play
only when the signatory states are unwilling or unable to prosecute.

Given the above consideration, petitioners suggestionthat the RP, by entering

into theAgreement, violated its duty required by the imperatives of good faith and
breached its commitment under the Vienna Conventionto refrain from performing
any act tending to impair the value of a treaty, e.g., the Rome Statutehas to be
rejected outright.For nothing in the provisions of the Agreement,in relation to the
Rome Statute, tends to diminish the efficacy of the Statute, let alone defeats the
purpose of the ICC.Lest it be overlooked, the Rome Statute contains a proviso
that enjoins the ICC from seeking the surrender of an erring person, should the
process require the requested state to perform an act that would violate some
international agreement it has entered into.We refer to Art. 98(2) of the Rome
Statute, which reads:

Article 98
Cooperation with respect to waiver of immunity and consent to surrender

2. The Court may not proceed with a request for surrender which would require
the requested State to act inconsistently with its obligations under international
agreements pursuant to which the consent of a sending State is required to
surrender a person of that State to the Court, unless the Court can first obtain the
cooperation of the sending State for the giving of consent for the surrender.

Moreover, under international law, there is a considerable difference between a

State-Party and a signatory to a treaty. Under the Vienna Convention on the Law
of Treaties, a signatory state is only obliged to refrain from acts which would
defeat the object and purpose of a treaty;whereas a State-Party, on the other
hand, is legally obliged to follow all the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to
the Rome Statute and not a State-Party for lack of ratification by the Senate.
Thus, it is only obliged to refrain from acts which would defeat the object and
purpose of the Rome Statute. Any argument obliging the Philippines to follow any
provision in the treaty would be premature.
As a result, petitioners argument that State-Parties with non-surrender
agreements are prevented from meeting their obligations under the Rome
Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only
legally binding upon State-Parties, not signatories.

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

POLITICAL LAW: Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its
sovereignty by bargaining away the jurisdiction of the ICC to prosecute US
nationals, government officials/employees or military personnel who commit
serious crimes of international concerns in the Philippines.Formulating petitioners
argument a bit differently, the RP,by entering into the Agreement, does thereby
abdicate its sovereignty, abdication being done by its waiving or abandoning its
right to seek recourse through the Rome Statute of the ICC for erring Americans
committing international crimes in the country.

We are not persuaded.As it were, theAgreementis but a form of affirmance and

confirmance of thePhilippines national criminal jurisdiction.National criminal
jurisdiction being primary, as explained above, it is always the responsibility and
within the prerogative of the RP either to prosecute criminal offenses equally
covered by the Rome Statute or to accede to the jurisdiction of the ICC.Thus,
thePhilippinesmay decide to try persons of theUS, as the term is understood in
theAgreement, under our national criminal justice system.Or it may opt not to
exercise its criminal jurisdiction over its erring citizens or overUSpersons
committing high crimes in the country and defer to the secondary criminal
jurisdiction of the ICC over them.As to persons of the US whom the Philippines
refuses to prosecute, the country would, in effect, accorddiscretion to the US to
exercise either its national criminal jurisdiction over the person concerned or to
give its consent to the referral of the matter to the ICC for trial.In the same
breath, theUSmust extend the same privilege to thePhilippineswith respect to
persons of the RP committing high crimes withinUSterritorial jurisdiction.

To be sure, the nullity of the subject non-surrender agreement cannot be

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

By their nature, treaties and international agreements actually have a limiting

effect on the otherwise encompassing and absolute nature of sovereignty.By
their voluntary act, nations may decide to surrender or waive some aspects of
their state power or agree to limit the exercise of their otherwise exclusive and
absolute jurisdiction.The usual underlying consideration in this partial surrender
may be the greater benefits derived from a pact or a reciprocal undertaking of
one contracting party to grant the same privileges or immunities to the other.On
the rationale that the Philippines has adopted the generally accepted principles of
international law aspart of the law of the land, a portion of sovereignty may be
waived without violating the Constitution. Such waiver does not amount to an
unconstitutional diminution or deprivation of jurisdiction of Philippine courts.

POLITICAL LAW: Agreement Not Immoral/Not at Variance with Principles of

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

The above argument is a kind of recycling of petitioner's earlier position, which,

as already discussed, contends that the RP, by entering into the
Agreement,virtually abdicated its sovereignty and in the process undermined its
treaty obligations under the Rome Statute, contrary to international law
principles.

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

Petitioner, we believe, labors under the erroneous impression that the Agreement
would allow Filipinos and Americans committing high crimes of international
concern to escape criminal trial and punishment.This is manifestly
incorrect.Persons who may have committed acts penalized under the Rome
Statute can be prosecuted and punished in the Philippines or in the US; or with
the consent of the RP or the US, before the ICC, assuming, for the nonce, that all
the formalities necessary to bind both countries to the Rome Statute have been
met.For perspective, what the Agreement contextually prohibits is the surrender
by either party of individuals to international tribunals, like the ICC, without the
consent of the other party, which may desire to prosecute the crime under its
existing laws.With the view we take of things, there is nothing immoral or violative
of international law concepts in the act of the Philippines of assuming criminal
jurisdiction pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.

POLITICAL LAW: Agreement Need Not Be in the Form of a Treaty

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

The basic premise rests on the interpretation that if it does not decide to
prosecute a foreign national for violations of RA 9851, the Philippines has only
two options, to wit: (1) surrender the accused to the proper international tribunal;
or (2) surrender the accused to another State if such surrender is pursuant to the
applicable extradition laws and treaties.But the Philippines may exercise these
options only in cases where another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such crime;
otherwise, the Philippines must prosecute the crime before its own courts
pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international

tribunal for any crime under RA 9851, the Philippines has the option to surrender
such US national to the international tribunal if it decides not to prosecute such
US national here.The view asserts that this option of the Philippines under Sec.
17 of RA 9851 is not subject to the consent of theUS, and any derogation of Sec.
17 of RA 9851, such as requiring the consent of the US before the Philippines
can exercise such option, requires an amendatory law.In line with this scenario,
the view strongly argues that theAgreementprevents thePhilippineswithout the
consent of theUSfrom surrendering to any international tribunal US nationals
accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of
RA 9851.Consequently, the view is strongly impressed that the Agreement
cannot be embodied in a simple executive agreement in the form of an exchange
of notes but must be implemented through an extradition law or a treaty with the
corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the
Constitution, where thePhilippinesadopts, as a national policy, the generally
accepted principles of international law as part of the law of the land, the Court is
further impressed to perceivethe Rome Statute as declaratory of customary
international law.In other words, the Statute embodies principles of law which
constitute customary international law or custom and for which reason it assumes
the status of an enforceable domestic law in the context of the aforecited
constitutional provision.As a corollary, it is argued that any derogation from the
Rome Statute principles cannot be undertaken via a mere executive agreement,
which, as an exclusive act of the executive branch, can only implement, but
cannot amend or repeal, an existing law.TheAgreement, so the argument goes,
seeks to frustrate the objects of the principles of law or alters customary rules
embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers the
Agreement inefficacious, unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a Senate- ratified treaty
partakes of the nature of a municipal law that can amend or supersede another
law, in this instance Sec. 17 of RA 9851 and the status of the Rome Statute as
constitutive of enforceable domestic law under Sec. 2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the
Agreement does not amend or is repugnant to RA 9851.For another, the view
does not clearly state what precise principles of law, if any, the Agreement
alters.And for a third, it does not demonstrate in the concrete how the Agreement
seeks to frustrate the objectives of the principles of law subsumed in the Rome
Statute.

Nonetheless, despite the lack of actual domestic legislation, theUSnotably

follows the doctrine of incorporation.As early as 1900, the esteemed Justice Gray
inThe Paquete Habana case already held international law as part of the law of
theUS, to wit:

International law is part of our law, and must be ascertained and administered by
the courts of justice of appropriate jurisdiction as often as questions of right
depending upon it are duly presented for their determination. For this purpose,
where there is no treaty and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages of civilized nations, and,
as evidence of these, to the works of jurists and commentators who by years of
labor, research, and experience have made themselves peculiarly well
acquainted with the subjects of which they treat. Such works are resorted to by
judicial tribunals, not for the speculations of their authors concerning what the law
ought to be, but for the trustworthy evidence of what the law really is.

Thus, a person can be tried in the US for an international crime despite the lack
of domestic legislation.The cited ruling in U.S. v. Coolidge,which in turn is based
on the holding inU.S. v. Hudson, only applies to common law and not to the law
of nations or international law.Indeed, the Court inU.S. v. Hudson only
considered the question, whether the Circuit Courts of the United States can
exercise a common law jurisdiction in criminal cases.Stated otherwise, there is
no common law crime in the US but this is considerably different from
international law.

TheUSdoubtless recognizes international law as part of the law of the land,

necessarily including international crimes, even without any local statute.In fact,
years later, US courts would apply international law as a source of criminal
liability despite the lack of a local statute criminalizing it as such. So it was that in
Ex Parte Quir in the US Supreme Court noted that from the very beginning of its
history this Court has recognized and applied the law of war as including that part
of the law of nations which prescribes, for the conduct of war, the status, rights
and duties of enemy nations as well as of enemy individuals. It went on further to
explain that Congress had not undertaken the task of codifying the specific
offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not
itself undertaken to codify that branch of international law or to mark its precise
boundaries, or to enumerate or define by statute all the acts which that law
condemns. An Act of Congress punishing the crime of piracy as defined by the
law of nations is an appropriate exercise of its constitutional authority, Art. I, s 8,
cl. 10, to define and punish the offense since it has adopted by reference the
sufficiently precise definition of international law. Similarly by the reference in the
15th Article of War to offenders or offenses that by the law of war may be triable
by such military commissions. Congress has incorporated by reference, as within
the jurisdiction of military commissions, all offenses which are defined as such by
the law of war, and which may constitutionally be included within that jurisdiction.

This rule finds an even stronger hold in the case of crimes against humanity. It
has been held that genocide, war crimes and crimes against humanity have
attained the status of customary international law.Some even go so far as to
state that these crimes have attained the status of jus cogens.

Customary international law or international custom is a source of international

law as stated in the Statute of the ICJ. It is defined as the general and consistent
practice of states recognized and followed by them from a sense of legal
obligation.In order to establish the customary status of a particular norm, two
elements must concur: State practice, the objective element; andopinio juris sive
necessitates, the subjective element.

State practice refers to the continuous repetition of the same or similar kind of
acts or norms by States.It is demonstrated upon the existence of the following
elements: (1) generality; (2) uniformity and consistency; and (3) duration.
While,opinio juris, the psychological element, requires that the state practice or
norm be carried out in such a way, as to be evidence of a belief that this practice
is rendered obligatory by the existence of a rule of law requiring it.

The term jus cogens means the compelling law.Corollary, ajus cogensnorm holds
the highest hierarchical position among all other customary norms and
principles.As a result,jus cogensnorms are deemed peremptory and non-
derogable.When applied to international crimes, jus cogens crimes have been
deemed so fundamental to the existence of a just international legal order that
states cannot derogate from them, even by agreement.

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

Therefore, even with the current lack of domestic legislation on the part of the
US, it still has both the doctrine of incorporation and universal jurisdiction to try
these crimes.

WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby

DISMISSED for lack of merit.

CHINA NATIONAL MACHINERY vs. SANTAMARIA

G.R. No. 185572; February 7, 2012
FACTS:
On 14 September 2002, petitioner China National Machinery & Equipment Corp.
(CNMEG), represented by its chairperson, Ren Hongbin, entered into a
Memorandum of Understanding with the North Luzon Railways Corporation for
the conduct of a feasibility study on a possible railway line from Manila to San
Fernando, La Union.
On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the
Department of Finance of the Philippines (DOF) entered into a Memorandum of
Understanding, wherein China agreed to extend Preferential Buyer’s Credit to the
Philippine government to finance the Northrail Project. The Chinese government
designated EXIM Bank as the lender, while the Philippine government named the
DOF as the borrower. Under the Aug 30 MOU, EXIM Bank agreed to extend an
amount not exceeding USD 400,000,000 in favor of the DOF, payable in 20
years, with a 5-year grace period, and at the rate of 3% per annum.
On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui,
wrote a letter to DOF Secretary Jose Isidro Camacho informing him of CNMEG’s
designation as the Prime Contractor for the Northrail Project. On 30 December
2003, Northrail and CNMEG executed a Contract Agreement for the construction
of Section I, Phase I of the North Luzon Railway System from Caloocan to
Malolos on a turnkey basis (the Contract Agreement). The contract price for the
Northrail Project was pegged at USD 421,050,000.
On 26 February 2004, the Philippine government and EXIM Bank entered into a
counterpart financial agreement, the Buyer Credit Loan Agreement. In the Loan
Agreement, EXIM Bank agreed to extend Preferential Buyer’s Credit in the
amount of USD 400,000,000 in favor of the Philippine government in order to
finance the construction of Phase I of the Northrail Project.

ISSUE:
Whether the Contract Agreement is an executive agreement.

RULING:
Under the Vienna Convention on the Law of Treaties defines a treaty as, “An
international agreement concluded between States in written form and governed
by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation.” The Court held that
an executive agreement is similar to a treaty, except that the former (a) does not
require legislative concurrence; (b) is usually less formal; and (c) deals with a
narrower range of subject matters.
Despite these differences, to be considered an executive agreement, the
following three requisites provided under the Vienna Convention must
nevertheless concur: (a) the agreement must be between states; (b) it must be
written; and (c) it must governed by international law. The first and the third
requisites do not obtain in the case at bar.
The Contract Agreement was not concluded between the Philippines and China,
but between Northrail and CNMEG. By the terms of the Contract Agreement,
Northrail is a government-owned or -controlled corporation, while CNMEG is a
corporation duly organized and created under the laws of the People’s Republic
of China. Thus, both Northrail and CNMEG entered into the Contract Agreement
as entities with personalities distinct and separate from the Philippine and
Chinese governments, respectively.
Neither can it be said that CNMEG acted as agent of the Chinese government.
As previously discussed, the fact that Amb. Wang, in his letter dated 1 October
2003, described CNMEG as a "state corporation" and declared its designation as
the Primary Contractor in the Northrail Project did not mean it was to perform
sovereign functions on behalf of China. That label was only descriptive of its
nature as a state-owned corporation, and did not preclude it from engaging in
purely commercial or proprietary ventures.
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.
DANUBE DAM CASE (Hungary v Slovakia) 37 ILM 162 (1998)

In 1977, The Treaty between the Hungarian People’s Republic and the
Czechoslovak Socialist Republic concerning the Construction and Operation of
the Gabcíkovo-Nagymaros System of Locks was concluded on 16 September
1977.The treaty was concluded to facilitate the construction of dams on the
Danube River. It addressed broad utilization of the natural resources of the
Danube between Bratislava and Budapest, representing two hundred of the
River’s two thousand eight hundred and sixty kilometers. Intense criticism of the
construction at Nagymaros centered upon endangerment of the environment and
uncertainty of continued economic viability. This growing opposition engendered
political pressures upon the Hungarian Government. After initiating two
Protocols, primarily concerned with timing of construction, Hungary suspended
works at Nagymaros on 21 July 1989 pending further environmental studies. In
response, Czechoslovakia carried out unilateral measures. Hungary then claimed
the right to terminate the treaty, at which point the dispute was submitted to the
International Court of Justice. Hungary also submitted that it was entitled to
terminate the treaty on the ground that Czechoslovakia had violated Articles of
the Treaty by undertaking unilateral measures, culminating in the diversion of the
Danube. Slovakia became a party to the 1977 Treaty as successor to
Czechoslovakia.

On 19 May 1992 Hungary purported to terminate the 1977 Treaty as a

consequence of Czechoslovakia’s refusal to suspend work during the process of
mediation. As the Treaty itself did not feature a clause governing termination,
Hungary proffered five arguments to validate its actions: a state of necessity,
supervening impossibility of performance, fundamental change of circumstances,
material breach and the emergence of new norms of international environmental
law. Slovakia contested each of these bases.

The Court easily dismissed Hungary’s first claim, simply stating that a state of
necessity is not a ground for termination. Even if a state of necessity is
established, as soon as it ceases to exist treaty obligations automatically revive.
The doctrine of impossibility of performance is encapsulated in Article 61 of the
Vienna Convention on the Law of Treaties, which requires the “permanent
disappearance or destruction of an object indispensable for the execution of the
treaty”. In this case, the legal regime governing the Gabcíkovo-Nagymaros
Project did not cease to exist. Articles 15, 19 and 20 of the 1977 Treaty provided
the means through which works could be readjusted in accordance with
economic and ecological imperatives. Furthermore, Article 61(2) of the Vienna
Convention on the Law of Treaties precludes application of the doctrine where
the impossibility complained of is the result of a breach by the terminating Party.
If the joint investment had been hampered to a point where performance was
impossible, it was a consequence of Hungary’s abandonment of works.
Article 62 of the Vienna Convention on the Law of Treaties codifies international
law in respect of fundamental change of circumstances and treaty relations.
Hungary submitted that the 1977 Treaty was originally intended to be a vehicle
for socialist integration. Fundamental changes cited were the displacement of a
“single and indivisible operational system” by a unilateral scheme; the
emergence of both States into a market economy; the mutation of a framework
treaty into an immutable norm; and the transformation of a treaty consistent with
environmental protection into “a prescription for environmental disaster”. The
Court held that although political changes and diminished economic viability were
relevant to the conclusion of a treaty, they were not so closely linked with the
object and purpose of the 1977 Treaty so as to constitute an essential basis of
the consent of the Parties. New developments in the efficacy of environmental
knowledge were not unforeseen by the Treaty and cannot be said to represent a
fundamental change. The Court did not consider whether the emergence of new
environmental norms would catalyze the application of Article 62 in a situation
where the terms of a treaty stand abhorrent to new norms.

Hungary claimed that Variant C materially breached Articles 15, 19 and 20 of the
1977 Treaty, concerning the protection of water quality, the preservation of
nature and guardianship of fishing interests. Article 60(3) of the Vienna
Convention on the Law of Treaties recognizes material breach of a treaty as a
ground for termination on the part of the injured State. Extending its reasoning on
the principle of approximate application, the Court held that a material breach
only occurred upon the diversion of the Danube. As Czechoslovakia dammed the
Danube after 19 May 1992, Hungary’s purported termination was premature and
thus invalid.

As its final basis for the justification of termination, Hungary advocated that,
pursuant to the precautionary principle in environmental law, the obligation not to
cause substantive damage to the territory of another State had evolved into an
obligation erga omnes (sic utere tuo ut alienum non laedas). Slovakia countered
this argument with the claim that there had been no intervening developments in
international environmental law that gave rise to jus cogens norms that would
override provisions of the 1977 Treaty. The Court avoided consideration of these
propositions, concluding instead that “these new concerns have enhanced the
relevance of Articles 15, 19 and 20”. Given that international environmental law is
in its formative stages, it is unfortunate that the International Court of Justice did
not grasp at this opportunity to discuss its role in the governance of relations
between States. To that end, the Court may have clarified the controversial
application of the sic utere principle to modify notions of unrestricted sovereignty
in the Trail Smelter arbitration.
REPUBLIC OF THE PHILIPPINES v. SANDIGANBAYAN

FACTS:

On February 28, 1986, immediately after assuming power, President Corazon C.

Aquino issued Executive Order 1, creating the PCGG.She empowered the
PCGG to recover all ill-gotten wealth allegedly amassed by former President
Ferdinand E. Marcos, his family, and close associates during his 20-year regime.

PCGG Commissioner Raul Daza gave lawyers Jose Tan Ramirez and
Ben Abella PCGG Region VIII Task Force Head and Co-Deputy, respectively,
written authority to sequester any property, documents, money, and other assets
in Leyte, belonging to former First Lady Imelda R. Marcos,Benjamin Romualdez,
Alfredo Romualdez, and their agents. On March 18, 1986, Attys. Ramirez
and Abella issued a sequestration order against the Marcoses Olot, Tolosa,
Leyte property (lot Resthouse).

On August 10, 2001, Mrs. Marcos filed a motion to quash the sequestration order
against the Olot Resthouse,claiming that such order, issued only by Attys.
Ramirez and Abella, was void for failing to observe Sec. 3 of the PCGG Rules
and Regulations. The rules required the signatures of at least two PCGG
Commissioners. Mrs. Marcos filed a Supplement to her earlier motion, claiming
no prima facie evidence that the Olot Resthouse constituted ill-gotten wealth.She
pointed out that the property is the ancestral home of her family. The Republic
countered that Mrs. Marcos was already stopped from questioning the order.

On February 28, 2002 the Sandiganbayan issued the assailed Resolution,

granting the motion to quash and ordering the full restoration of
the Olot Resthouse to Mrs. Marcos.The Sandiganbayan ruled that the
sequestration order was void because it was signed, not by PCGG
Commissioners, but by mere PCGG agents.

ISSUE: Whether or not the March 18, 1986 sequestration order against
the Olot Resthouse, issued by PCGG agents before the enactment of the PCGG
rules, was validly issued.

HELD:

POLITICAL LAW
Under Section 26, Article XVIII of the Constitution, an order of sequestration may
only issue upon a showing "of a prima facie case" that the properties are ill-
gotten wealth under Executive Orders 1 and 2. When a court nullifies an order of
sequestration for having been issued without a prima facie case, the Court does
not substitute its judgment for that of the PCGG but simply applies the law.
The Republics supposed evidence does not show how the Marcoses acquired
the sequestered property, what makes it "ill-gotten wealth," and how former
President Marcos intervened in its acquisition. Taking the foregoing view, the
resolution of the issue surrounding the character of the property sequestered
whether or not it could prima facie be considered ill-gotten should be necessary.

Although the two PCGG lawyers issued the sequestration order in this case on
March 18, 1986, before the passage of Sec. 3 of the PCGG Rules, such
consideration is immaterial following the above ruling.

Finally, Mrs Marcos is not estopped from questioning the order because a void
order produces no effect and cannot be validated under the doctrine of estoppel.

DISMISSED

THE PAQUETE HABANA, 175 U.S. 677 (1900)

Facts:
These are two appeals from decrees of the district court of the United States for
the southern district of Florida condemning two fishing vessels and their cargoes
as prize of war.

Each vessel was a fishing smack, running in and out of Havana, and regularly
engaged in fishing on the coast of Cuba. It sailed under the Spanish flag and was
owned by a Spanish subject of Cuban birth, living in the city of Havana. It was
commanded by a subject of Spain, also residing in Havana. Her master and crew
had no interest in the vessel, but were entitled to share her catch.

Her cargo consisted of fresh fish, caught by her crew from the sea, put on board
as they were caught, and kept and sold alive. Until stopped by the blockading
squadron she had no knowledge of the existence of the war or of any blockade.
She had no arms or ammunition on board, and made on attempt to run the
blockade after she knew of its existence, nor any resistance at the time of the
capture.

The Paquete Habana (1st vessel) was a sloop and had a crew of three Cubans,
including the master, who had a fishing license from the Spanish government,
and no other commission or license. She left Havana and was captured by the
United States gunboat Castine.

The Lola (2nd vessel) was a schooner and had a crew of six Cubans, including
the master, and no commission or license. She was stopped by the United States
steamship Cincinnati, and was warned not to go into Havana, but was told that
she would be allowed to land at Bahia Honda. She then set for Bahia Honda, but
on the next morning, when near that port, was captured by the United States
steamship Dolphin.
Both the fishing vessels were brought by their captors into Key West. A libel for
the condemnation of each vessel and her cargo as prize of war was filed. Each
vessel was sold by auction (the Paquete Habana for the sum of $490 and the
Lola for the sum of $800). There was no other evidence in the record of the value
of either vessel or of her cargo.

Issue:
Whether or not the fishing smacks were subject to capture during the war with
Spain.

Held:
No. By an ancient usage among civilized nations, beginning centuries ago, and
gradually ripening into a rule of international law, coast fishing vessels, pursuing
their vocation of catching and bringing in fresh fish, have been recognized as
exempt, with their cargoes and crews, from capture as prize of war. (The case
then discussed instances throughout history where fishing vessels were
captured.)

It will be convenient to refer to some leading French treatises on international law

as determined by the general consent of civilized nations.

'Enemy ships,' say Pistoye and Duverdy, in their Treatise on Maritime Prizes,
published in 1855, 'are good prize. Not all, however; for it results from the
unanimous accord of the maritime powers that an exception should be made in
favor of coast fishermen. Such fishermen are respected by the enemy so long as
they devote themselves exclusively to fishing.'
De Cussy, in his work on the Phases and Leading Cases of the Maritime Law of
Nations, affirms in the clearest language the exemption from capture of fishing
boats, saying, that 'in time of war the freedom of fishing is respected by
belligerents; fishing boats are considered as neutral; in law, as in principle, they
are not subject either to capture or to confiscation.

Ortolan, in the fourth edition of his Regles Internationales et Diplomatie de la

Mer, after stating the general rule that the vessels and cargoes of subjects of the
enemy are lawful prize, says: 'Nevertheless, custom admits an exception in favor
of boats engaged in the coast fishery; these boats, as well as their crews, are
free from capture and exempt from all hostilities. The coast-fishing industry is, in
truth, wholly pacific, and of much less importance in regard to the national wealth
that it may produce than maritime commerce or the great fisheries. Peaceful and
wholly inoffensive, those who carry it on, may be called the harvesters of the
territorial seas, since they confine themselves to gathering in the products
thereof; they are for the most part poor families who seek in this calling hardly
more than the means of gaining their livelihood.' Again, after observing that there
are very few solemn public treaties which make mention of the immunity of
fishing boats in time of war, he says: 'From another point of view the custom
which sanctions this immunity is not so general that it can be considered as
making an absolute international rule; but it has been so often put in practice,
and, besides, it accords so well with the rule in use in wars on land, in regard to
peasants and husbandmen, to whom coast fishermen may be likened, that it will
doubtless continue to be followed in maritime wars to come. (A lot of opinions of
other writers were also included which will not be mentioned in this digest)

This review of the precedents and authorities on the subject appears to us

abundantly to demonstrate that at the present day, by the general consent of the
civilized nations of the world, and independently of any express treaty or other
public act, it is an established rule of international law, founded on considerations
of humanity to a poor and industrious order of men, and of the mutual
convenience of belligerent states, that coast fishing vessels, with their
implements and supplies, cargoes and crews, unarmed and honestly pursuing
their peaceful calling of catching and bringing in fresh fish, are exempt from
capture as prize of war.

The exemption, of course, does not apply to coast fishermen or their vessels if
employed for a warlike purpose, or in such a way as to give aid or information to
the enemy; nor when military or naval operations create a necessity to which all
private interests must give way.

Nor has the exemption been extended to ships or vessels employed on the high
sea in taking whales or seals or cod or other fish which are not brought fresh to
market, but are salted or otherwise cured and made a regular article of
commerce.

This rule of international law is one which prize courts administering the law of
nations are bound to take judicial notice of, and to give effect to, in the absence
of any treaty or other public act of their own government in relation to the matter.

By the practice of all civilized nations, vessels employed only for the purposes of
discovery or science are considered as exempt from the contingencies of war,
and therefore not subject to capture. It has been usual for the government
sending out such an expedition to give notice to other powers; but it is not
essential.

To this subject in more than one aspect are singularly applicable the words
uttered by Mr. Justice Strong, speaking for this court: 'Undoubtedly no single
nation can change the law of the sea. The law is of universal obligation and no
statute of one or two nations can create obligations for the world. Like all the laws
of nations, it rests upon the common consent of civilized communities. It is of
force, not because it was prescribed by any superior power, but because it has
been generally accepted as a rule of conduct. Whatever may have been its
origin, whether in the usages of navigation, or in the ordinances of maritime
states, or in both, it has become the law of the sea only by the concurrent
sanction of those nations who may be said to constitute the commercial world.
Many of the usages which prevail, and which have the force of law, doubtless
originated in the positive prescriptions of some single state, which were at first of
limited effect, but which, when generally accepted, became of universal
obligation.'

In the case, each vessel was of a moderate size, such as is not unusual in coast
fishing smacks, and was regularly engaged in fishing on the coast of Cuba. The
crew of each were few in number, had no interest in the vessel, and received, in
return for their toil and enterprise, two thirds of her catch, the other third going to
her owner by way of compensation for her use. Each vessel went out from
Havana to her fishing ground, and was captured when returning along the coast
of Cuba. The cargo of each consisted of fresh fish, caught by her crew from the
sea, and kept alive on board. Although one of the vessels extended her fishing
trip, we cannot doubt that each was engaged in the coast fishery, and not in a
commercial adventure, within the rule of international law.

The case was adjudged that the capture was unlawful and without probable
cause ordered that the proceeds of the sale of the vessel, together with the
proceeds of any sale of her cargo, be restored to the claimant, with damages and
costs.

THE ASYLUM CASE

Facts:

Torre, the unsuccessful leader of a military rebellion in Peru in 1948,sought

political asylum in the Columbian embassy in Lima. Peru refused to allowTorre to
leave the country, and insisted he be given over to Peru to be tried formilitary
rebellion. Dispute referred to the ICJ, which first decided that Columbiahad no
treaty right to declare that Torre was entitled to the status of apolitical offender
eligible for political asylum. The ICJ then turned to customaryinternational law.

Issue: Whether there is an custom so established that it is binding to

allowColumbia to grant political asylum.Holding: No evidence as to custom
allowing Columbia to grant political asylum andbinding Peru.

Reasoning: Columbia cited several conventions, of which some Peru was not a
partyso not binding, and others that were accepted by so few states it is very
weak.Columbia also refers to many cases where political asylum was granted,
but courtcannot determine whether they were granted due to usage, or for
politicalexpediency. Court says Columbian gov't has not through its arguments
proven theexistence of such a custom. And, if there was such a custom, it could
not beenforced against Peru, b/c they were not party to the Montevideo
convention whichincluded matters of political asylum.
RULE: To invoke a customary international law, you have to prove it has been
usedfairly often, and adopted by many states. Also, you cannot bind a state to
atreaty to which it did not ratify.Notes• How does this relate to CIL?Because the
question is if there is CIL that governs asylum

• No CIL here because not overwhelmingly adopted by enough statesOne of the

treaties raised, Peru didn’t sign onto Another signed on to by a limited number of
stateS Weak evidence showing indication of CIL. Peru has not acted in a way
that showed they practiced this custom
§ No evidence of consent to the custom• The persistent objection consentIf Peru
objects persistently, even if custom very common, they still wouldn’t be bound
(unless it was a natural right)

NORTH SEA CONTINENTAL SHELF CASE

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the
equidistance principle (A-B and C-D). An agreement on further prolongation of
the boundary proved difficult because Denmark and Netherlands wished this
prolongation to take place based on the equidistance principle (B-E and D-E)
where as Germany was of the view that, together, these two boundaries would
produce an inequitable result for her. Germany stated that due to its concave
coastline, such a line would result in her loosing out on her share of the
continental shelf based on proportionality to the length of its North Sea coastline.
The Court had to decide the principles and rules of international law applicable to
this delimitation. In doing so, the court had to decide if the principles espoused by
the parties were binding on the parties either through treaty law or customary
international law.

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special
circumstances principle, contained in Article 6 of the Geneva Convention, either
as a customary international law rule or on the basis of the Geneva Convention?

The Court’s Decision:

The use of the equidistance method had not crystallised into customary law and
was is not obligatory for the delimitation of the areas in the North Sea related to
the present proceedings.

Relevant Findings of the Court:

Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular
Article 6, binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that unless
the parties have agreed on a method for delimitation or unless special
circumstances exist, the equidistance method would apply (see Article 6).
Germany has signed but not ratified the Geneva Convention, while Netherlands
and Denmark are parties to the Convention. The latter two States argue that
while Germany is not a party to the Convention (not having ratified it), she is still
bound by Article 6 of the Convention because:
“…(1) by conduct, by public statements and proclamations, and in other ways,
the Republic has unilaterally assumed the obligations of the Convention; or has
manifested its acceptance of the conventional regime; or has recognized it as
being generally applicable to the delimitation of continental shelf areas…
(2) the Federal Republic had held itself out as so assuming, accepting or
recognizing, in such a manner as to cause other States, and in particular
Denmark and the Netherlands, to rely on the attitude thus taken up” (the latter is
called the principle of estoppel).

2. The Court rejected the first argument. It stated that only a ‘very definite very
consistent course of conduct on the part of a State’ would allow the court to
presume that a State had somehow become bound by a treaty (by a means other
than in a formal manner: i.e. ratification) when the State was ‘at all times fully
able and entitled to…’ accept the treaty commitments in a formal manner. The
Court held that Germany had not unilaterally assumed obligations under the
Convention. The court also took notice of the fact that even if Germany ratified
the treaty, she had the option of entering into a reservation on Article 6 following
which that particular article would no longer be applicable to Germany (i.e. even
if one were to assume that Germany had intended to become a party to the
Convention, it does not presuppose that it would have also undertaken those
obligations contained in Article 6).

3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which
came into force in 1980, discusses more fully the obligations of third States to
treaties. It clearly stipulates that an obligation arises for a third State from a
provision of a treaty only if (1) the parties to the treaty intend the provision to
create this obligation for the third States; and (2) the third State expressly
accepts that obligation in writing (A. 35 of the VCLT). The VCLT was not in force
when the ICJ deliberated on this case. However, as seen above, the ICJ’s
position was consistent the VCLT. (See the relevant provisions of the Vienna
Convention on the Law of Treaties).

4. The court held that the existence of a situation of estoppel would have allowed
Article 6 to become binding on Germany – but held that Germany’s action did not
support an argument for estoppel. The court also held that the mere fact that
Germany may not have specifically objected to the equidistance principle as
contained in Article 6 is not sufficient to state that the principle is now binding
upon it.
5. In conclusion, the court held that Germany had not acted in any way to incur
obligations contained in Article 6 of the Geneva Convention. The equidistance –
special circumstances rule was not binding on Germany by way of treaty.
Nature of the customary international law obligation: Is Germany bound by the
provisions of Article 6 of the Geneva Convention by way of customary
international law?

6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted
rule of general international law on the subject of continental shelf delimitation’
and existed independently of the Convention. Therefore, they argued, Germany
is bound by it by way of customary international law.

7. To decide if the equidistance principle bound Germany by way of customary

international law, the court examined (1) the status of the principle contained in
Article 6 as it stood when the Convention was being drawn up (2) and after the
latter came into force.
What was the customary law status of Article 6 at the time of drafting the
Convention?

8. The court held the principle of equidistance, as contained in Article 6, did not
form a part of existing or emerging customary international law at the time of
drafting the Convention. The Court supported this finding based on (1) the
hesitation expressed by the drafters of the Convention – International Law
Commission – on the inclusion of Article 6 (para. 62) and (2) the fact reservations
to Article 6 was permissible under the Convention (Article 12). The court held:
… Article 6 is one of those in respect of which, under the reservations article of
the Convention (Article 12) reservations may be made by any State on signing,
ratifying or acceding for, speaking generally, it is a characteristic of purely
conventional rules and obligations that, in regard to them, some faculty of making
unilateral reservations may, within certain limits, be admitted; whereas this
cannot be so in the case of general or customary law rules and obligations which,
by their very nature, must have equal force for all members of the international
community, and cannot therefore be the subject of any right of unilateral
exclusion exercisable at will by any one of them in its own favor…. The normal
inference would therefore be that any articles that do not figure among those
excluded from the faculty of reservation under Article 12, were not regarded as
declaratory of previously existing or emergent rules of law (see para 65 for a
counter argument and the court’s careful differentiation)…”
Did the provisions in Article 6 on the equidistance principle attain the customary
law status after the Convention came into force?

9. The court then examined whether the rule contained in Article 6 had become
customary international law after the Convention entered into force – either due
the convention itself (i.e., if enough States had ratified the Convention in a
manner to fulfil the criteria specified below), or because of subsequent State
practice (i.e. even if adequate number of States had not ratified the Convention
one could find sufficient State practice to meet the criteria below). The court held
that Article 6 of the Convention had not attained a customary law status
(compare the 1958 Geneva Convention with the four Geneva Conventions on
1949 in the field of international humanitarian law in terms of its authority as a
pronouncement of customary international law).

10. For a customary rule to emerge the court held that it needed: (1) very
widespread and representative participation in the convention, including States
whose interests were specially affected (i.e. generality); and (2) virtually uniform
practice (i.e. consistent and uniform usage) undertaken in a manner that
demonstrates (3) a general recognition of the rule of law or legal obligation (i.e.
opinio juries). In the North Sea Continental Shelf cases the court held that the
passage of a considerable period of time was unnecessary (i.e. duration) for the
formation of a customary law.
Widespread and representative participation

11. The court held that the first criteria was not met. The number of ratifications
and accessions to the convention (39 States) were not adequately representative
(including of coastal States – i.e. those States whose rights are affected) or
widespread.
Duration

12. The court held that duration taken for the customary law rule to emerge is not
as important as widespread and representative participation, uniform usage and
the existence of an opinio juris.
“Although the passage of only a short period of time (in this case, 3 – 5 years) is
not necessarily, or of itself, a bar to the formation of a new rule of customary
international law on the basis of what was originally a purely conventional rule,
an indispensable requirement would be that within the period in question, short
though it might be, State practice, including that of States whose interests are
specially affected, should have been both extensive and virtually uniform in the
sense of the provision invoked and should moreover have occurred in such a
way as to show a general recognition that a rule of law or legal obligation is
involved (text in brackets added).”

Opinio juris

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions

(Lotus case) in so far as those acts or omissions are done following a belief that
the said State is obligated by law to act or refrain from acting in a particular way.
(For more on opinio juris click here).

14. The Court examined 15 cases where States had delimited their boundaries
using the equidistance method, after the Convention came into force (paras. 75 -
77). The court concluded, even if there were some State practice in favour of the
equidistance principle the court could not deduct the necessary opinio juris from
this State practice. The North Sea Continental Shelf Cases confirmed that both
State practice (the objective element) and opinio juris (the subjective element)
are essential pre-requisites for the formation of a customary law rule. This is
consistent with Article 38 (1) (b) of the Statute of the ICJ. The following explains
the concept of opinio juris and the difference between customs (i.e. habits) and
customary law:
Not only must the acts concerned amount to a settled practice, but they must
also be such, or be carried out in such a way, as to be evidence of a belief that
this practice is rendered obligatory by the existence of a rule of law requiring it.
The need for such a belief, i.e, the existence of a subjective element, is implicit in
the very notion of the opinio juris sive necessitatis. The States concerned must
therefore feel that they are conforming to what amounts to a legal obligation. The
frequency, or even habitual character of the acts is not in itself enough. There are
many international acts, e.g., in the field of ceremonial and protocol, which are
performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.

15. The court concluded that the equidistance principle was not binding on
Germany by way of treaty or customary international law because, in the case of
the latter, the principle had not attained a customary international law status at
the time of the entry into force of the Geneva Convention or thereafter. As such,
the court held that the use of the equidistance method is not obligatory for the
delimitation of the areas concerned in the present proceedings.

NUCLEAR TEST CASES

Nuclear Tests Case: New Zealand v. France

I.C.J. Reports 1973-1974
Facts
1.This case was brought to the International Court of Justice on 9 May 1973
when NewZealand instituted proceedings against France in terms of a dispute
concerning thelegality of atmospheric nuclear tests conducted by France in the
South Pacific region.
2.
The government of New Zealand asked the Court to declare that the nuclear
tests run bythe French government in the South Pacific which lead to radioactive
fallout were aviolation of New Zealand’s rights under international law. The
French Government statedthat it considered the Court was “manifestly not
competent” in the case and that it couldnot accept its jurisdiction, further
requesting the removal of the case from the Court list. New Zealand filed a
Memorial and presented argument at public hearings supporting thatthe Court
had jurisdiction. France did not file Counter-Memorial and was not representedat
the hearings. The Court then rejected France’s request to remove the case from
theCourt list and affirmed its jurisdiction in this case. When the case was heard in
1974,France had issued numerous public statements within that year that it
planned to hold nofurther nuclear tests in the South Pacific.3.New Zealand, the
plaintiff, claimed that its rights under international law were violated by the
French government’s nuclear testing in the South Pacific.4.France, the
defendant, argued in the first place that the Court did not have
sufficientcompetence to hear the case. When this was dismissed, France
contended that it no longer had plans to continue testing in the South Pacific and
therefore, no further ruling on theclaims of the plaintiff could take place.
Questions
1.Does a dispute still exist between New Zealand and France that the Court can
adjudicate?
Decision
1.The Court ruled that a dispute no longer existed at the time of the case hearing
between New Zealand and France. The court recognized that public statements
made by the Officeof the President of the French Republic and other government
officials since the caseoriginated conveyed an announcement of the French
government to cease nuclear-testingafter the completion of its 1974 series.
These public statements in effect created certain egal obligations for the French
government, the binding character of which is based on“good faith” and that
“interested States are entitled to require that the obligation berespected.”2.Thus,
the court stated, in a vote of 9 to 6, that the objective of New Zealand for the
totalcessation of nuclear-atmospheric testing by the French government had
been reached andthere no longer existed a dispute for which the Court could
contemplate and adjudicate.
Principles

1.New Zealand cited international law in reference to its rights that were
beingcompromised by the French government’s nuclear testing program in the
South Pacific.

2.To found jurisdiction of the Court, New Zealand cited the General Act for the
PacificSettlement of International Disputes concluded at Geneva in 1928, as well
as Articles 36and 37 of the Statute of the Court.

3.This case also illustrates the necessity for the existence of a dispute at the time
of thecase hearing or the Court to be able to make any judgment concerning said
dispute.4.This case also illustrates the principle of “good faith” in citing the
French government’s public statements about the end of their nuclear testing
program as evidence enough thatin fact they were going to do so and should be
held responsible for this sentiment.

Conclusion
In order for the Court to have been able to make any sort of ruling in this case,
thenuclear testing which New Zealand objected to needed to be going on at the
time of thecase hearing. This principle prevents the court from taking
unnecessary and extraneousaction against a State who has already met the
demands of the State filing suit against theother. This case illustrates an
important respect for legal boundaries that the Courtshould be expected to obey
in the sense of not intervening in the affairs of states when noconflict exists. This
case would hold relevance today in any situation in which a conflicthas
essentially been resolved in a way that satisfies the objective that the plaintiff
wantedthe Court to accomplish, making it unnecessary for the Court to rule on
the matter.

THE REPUBLIC OF NICARAGUA V. THE UNITED STATES OF AMERICA

OVERVIEW:

The case involves violation of customary international law. On April 9, 1984, the
Republic of Nicaragua submitted a complaint to the International Court of Justice
(ICJ), alleging that the United States was using military force against Nicaragua
in violation of International Law. The ICJ ruled in favor of Nicaragua and against
the United States and awarded reparations to Nicaragua. The ICJ held that the
U.S. had violated international law by supporting the Contras in their rebellion
against the Nicaraguan government and by mining Nicaragua's harbors. The
Court found in its verdict that the United States was "in breach of its obligations
under customary international law not to use force against another State", "not to
intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful
maritime commerce", and "in breach of its obligations under Article XIX of the
Treaty of Friendship, Commerce and Navigation between the Parties signed at
Managua on 21 January 1956."

FACTS OF THE CASE:

The dispute between Nicaragua and the United States concerns events in
Nicaragua subsequent to the fall of the Government of President Anastacio
Somoza Debayle in Nicaragua in July 1979, and activites of the US Government
in relation to Nicaragua since that time. Then, a Junta of National Reconstruction
and an 18-member government were installed by the Frente Sandinista de
Liberacion Nacional (FSLN). The latter had initially an extensive share in the new
government. Certain opponents of the new government, primarily supporters of
the former Somoza government, formed themselves into irregular military forces.
The United States was initially supportive of the new government; however, this
had changed due to the involvement of the Government of Nicaragua in logistical
support for guerrillas in El Salvador. The armed opposition to the new
government was conducted mainly by Fuerza Democratica Nicaraguense (FDN)
and Alianza Revolucionaria Democratica (ARDE), these groups, called
“contras”,were fighting against the new government. The US had been giving
support to these Groups and that the US Congress made specific provision for
funds to be used by the US intelligence agencies for supporting directly or
indirectly military or paramilitary operations in Nicaragua.

Submissions of the Nicaragua:

a. That the United States, in recruiting, training, arming, equipping, financing,
supplying and otherwise encouraging, supporting, aiding, and directing military
and paramilitary actions in and against Nicaragua, had violated its treaty
obligations to Nicaragua under:

Article 2 (4) of the United Nations Charter;

Articles 18 and 20 of the Charter of the Organization of American States;
Article 8 of the Convention on Rights and Duties of States;
Article I, Third, of the Convention concerning the Duties and Rights of States in
the Event of Civil Strife. b. That the United States had breached international law
by:

violating the sovereignty of Nicaragua by: - armed attacks against Nicaragua by
air, land and sea; - incursions into Nicaraguan territorial waters

- aerial trespass into Nicaraguan airspace;


efforts by direct and indirect means to coerce and intimidate the Government of
Nicaragua.

using force and the threat of force against Nicaragua.

intervening in the internal affairs of Nicaragua.

infringing upon the freedom of the high seas and interrupting peaceful maritime
commerce.

killing, wounding and kidnapping citizens of Nicaragua. c. Nicaragua demanded
that all such actions cease and that the United States had an obligation to pay
reparations to the government for damage to their people, property, and
economy.
Submissions of the United State:

that its actions were "primarily for the benefit of El Salvador, and to help it to
respond to an alleged armed attack by Nicaragua, that the United States claims
to be exercising a right of collective self-defense, which it regards as a
justification of its own conduct towards Nicaragua. El Salvador joined the U.S. in
their Declaration of Intervention which it submitted on 15 August 1984, where it
alleged itself the victim of an armed attack by Nicaragua, and that it had asked
the United States to exercise for its benefit the right of collective self-defence."

The CIA claimed that the purpose of the Psychological Operations in Guerrilla
Warfare manual was to "moderate" the existing Contra activities.

The United States argued that the Court did not have jurisdiction, with U.S.
ambassador to the United NationsJeane Kirkpatrick dismissing the Court as a
"semi-legal, semi- juridical, semi-political body, which nations sometimes accept
and sometimes don't." It is noteworthy that the United States, the defaulting
party, was the only member that put forward arguments against the validity of the
judgment of the court, arguing that it passed a decision that it 'had neither the
jurisdiction nor the competence to render'. Members that sided with the United
States in opposing Nicaragua's claims did not challenge the court's jurisdiction,
its findings, nor the substantive merits of the case.
ISSUES:

Whether the prohibition of the use of force and collective self-defence are issues
regulated both by customary international law and by treaties, in particular the
United Nations Charter.

What are the rules of customary international law applicable to the case?

Whether the recognition of the States of certain rules is sufficient to consider as
being part of customary international law, and as applicable as such to States.


Whether the practice of State must be in “absolute conformity” with the purported
customary
rule. What makes State practice an international rule?
THE RULING OF THE COURT:
First Issue

The Court then considered the rules of customary law applicable to the
present dispute. For this purpose it considered whether a customary rule exists in
the opinio juris of States,and satisfy itself that it is confirmed by practice.


The Court ruled that there can be no doubt that the issues of the use of force
and collective self-defence are regulated both by customary international law and
by treaties, in particular the United Nations Charter.

The Court concluded that both Parties accept a treaty-law obligation to refrain in
their international relations from the threat or use of force against the territorial
integrity or political independence of any State, or in any other manner
inconsistent with the purposes of the United Nations. The Court has however to
be satisfied that there exists in customary law an opinio juris as to the binding
character of such abstention. It considers that this
opinio juris may be deduced from, inter alia, the attitude of the Parties and of
States towards certain General Assembly resolutions, and particularly resolution
2625 (XXV) entitled "Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in Accordance with the
Charter of the United Nations". Consent to such resolutions is one of the forms of
expression of an opinio juris with regard to the principle of non-use of force,
regarded as a principle of customary international law, independently of the
provisions, especially those of an institutional kind, to which it is subject on the
treaty-law plane of the Charter.

Second Issue
The court, for this case, directed its attention to the practice and opinio juris of
States: as
the Court observed, “It is of course axiomatic that the material of customary
international
law is to be looked for primarily in the actual practice and opinio juris of States,
even though multilateral conventions may have an important role to play in
recording and defining rules deriving from custom, or indeed in developing them”

In the separate opinion of Judge Nagendra Singh. -

The Charter provisions as well as the Latin American Treaty System have not
only developed the concept but strengthened it to the extent that it would stand
on its own, even if the Charter and the Treaty basis were held inapplicable in this
case. The obvious explanation is that the original customary aspect which has
evolved with the treaty law development has come now to stay and survive as
the existing modern concept of international law, whether customary, because of
its origins, or "a general principle of international law recognized by civilized
nations". The contribution of the Court has been to emphasize the principle of
non-use of force as one belonging to the realm of
Jus cogens and hence as the very cornerstone of the human effort to promote
peace in a world torn by strife.

Third Issue
The Court ruled that the mere fact that States declare their recognition of certain
rules in not sufficient for the Court to consider these as being part of customary
international law, and as applicable to those States. Bound as it is by Article 38 of
its Stature to apply, inter alia, international custom “as evidence of general
practice accepted as law”, the Court may not disregard the essential role played
by general practice. Where two States agree to incorporate a particular rule in a
treaty, their agreement suffices to make that rule a legal one, binding upon them;
but in the field of customary international law, the shared view of the Parties as to
the content of what they regard as the rule is not enough. The Court must satisfy
itself that the existence of the rule in the opinio juris of State is confirmed by
practice.

In the present disputes, the Court, while exercising its jurisdiction only in respect
of the application of the customary rules of non-use of force and non-intervention,
cannot disregard the fact that the Parties are bound by these rules as a matter of
treaty law and of customary international law. Furthermore, in the present case,
apart from the treaty commitments binding the Parties to the rules in question,
there are various instances of their having expressed recognition of the validity
thereof as customary international law in other ways. It is therefore in the light of
this “subject element”
- expression used by the Court in its 1969 Judgment in the
North Sea Continental Shelf cases) that the Court has to appraise the relevant
practice.
Fourth Issue

The court said that in order to deduce the existence of customary rules, the
Court deems it sufficient that the conduct of the States should, in general, be
consistent with such rules, and that instances of State conduct inconsistent with
the given rule should generally have been treated as breaches of that rule, not as
indications of the recognition of a new rule.

The Court emphasized, as was observed in the North Sea Continental Shelf
case, for a
new customary rule to be formed, not only must the acts concerned “ amount to a
settled practice”, but they must accompanied by the opinio juris sive necessitates
. Either the States taking such action or other States in a position to react to it,
must have behaved so that their conduct is “evidence of a belief that this practice
is rendered obligatory by the existence of a rule of law requiring it. The need for
such a belef, i.e., the existence of a subjective elements, is implicit in the very
notion of the opinio juris sive necessitates.”
TAÑADA VS. ANGARA
272 SCRA 18

Facts:
On April 15, 1994, respondent Navarro, Secretary of Department of Trade and
Industry and a representative of the Philippine government, signed in the Final
Act Embodying the Results of the Uruguay Round of Multilateral Negotiations.
Bys signing the Final Act, the Philippines agreed to submit the agreement
establishing the World Trade Organization that require the Philippines, among
others, “to place nationals and products of member-countries on the same
footing as Filipinos and local products”. To that effect, the President ratified and
submitted the same to the Senate for its concurrence pursuant to Section21,
Article VII of the Constitution. Hence the petitioner 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 . . . (to) give
preference to qualified Filipinos (and to) promote the preferential use of Filipino
labor, domestic materials and locally produced goods”.

Issue: Whether the provisions of the Agreement Establishing the World Trade
Organization contravene the provisions of Sec. 19, Art. II, and Secs. 10 and 12,
Art. XII, all of the 1987 Philippines Constitution.

Held:
The court ruled the petition in favor of the respondents.

Article II of the Constitution is a "declaration of principles and state policies."

These principles in Article II are not intended to be self-executing principles ready
for enforcement through the courts. They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the legislature in its
enactment of laws.

The provisions of Sec. 10 and 12, Article XII of the Constitution, general
principles relating to the national economy and patrimony, is enforceable only in
regard to “the grants or rights, privileges and concessions covering national
economy and patrimony” and not to every aspect of trade and commerce. While
the Constitution mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with
the rest of the world on the bases of equality and reciprocity and limits protection
of Filipino enterprises only against foreign competition and trade practices that
are unfair. In other words, the Constitution did not intend to pursue an isolationist
policy.

On the other hand, there is no basis on the contention that under WTO, local
industries will all be wiped out and that Filipino will be deprived of control of the
economy, in fact, WTO recognizes need to protect weak economies like the
Philippines.
Mijares v. Ranada

Facts: Invoking the Alien Tort Act, petitioners Mijares, et al.*, all of whom suffered
human rights violations during the Marcos era, obtained a Final Judgment in their
favor against the Estate of the late Ferdinand Marcos amounting to roughly
$1.9B in compensatory and exemplary damages for tortuous violations of
international law in the US District Court of Hawaii. This Final Judgment was
affirmed by the US Court of Appeals. As a consequence, Petitioners filed a
Complaint with the RTC Makati for the enforcement of the Final Judgment,
paying P410 as docket and filing fees based on Rule 141, §7(b) where the value
of the subject matter is incapable of pecuniary estimation. The Estate of Marcos
however, filed a MTD alleging the non-payment of the correct filing fees. RTC
Makati dismissed the Complaint stating that the subject matter was capable of
pecuniary estimation as it involved a judgment rendered by a foreign court
ordering the payment of a definite sum of money allowing for the easy
determination of the value of the foreign judgment. As such, the proper filing fee
was P472M, which Petitioners had not paid.

Issue: Whether or not the amount paid by the Petitioners is the proper filing fee.

Held: Yes, but on a different basis—amount merely corresponds to the same

amount required for “other actions not involving property”. RTC Makati erred in
concluding that the filing fee should be computed on the basis of the total sum
claimed or the stated value of the property in litigation. The Petitioner’s Complaint
was lodged against the Estate of Marcos but it is clearly based on a judgment,
the Final Judgment of the US District Court. However, the Petitioners err in
stating that the Final Judgment is incapable of pecuniary estimation because it is
so capable. On this point, Petitioners state that this might lead to an instance
wherein a first level court (MTC, MeTC, etc.) would have jurisdiction to enforce a
foreign judgment. Under the B.P.129, such courts are not vested with such
jurisdiction. §33 of B.P.129 refers to instances wherein the cause of action or
subject matter pertains to an assertion of rights over property or a sum of money.
But here, the subject matter is the foreign judgment itself. §16 of B.P.129 reveals
that the complaint for enforcement of judgment even if capable of pecuniary
estimation would fall under the jurisdiction of the RTCs. Thus, the Complaint to
enforce the US District Court judgment is one capable of pecuniary estimations
but at the same time, it is also an action based on judgment against an estate,
thus placing it beyond the ambit of §7(a) of Rule 141. What governs the proper
computation of the filing fees over Complaints for the enforcement of foreign
judgments is §7(b)(3), involving “other actions not involving property.”
FILARTIGA V. PENA-IRALA, COURT OF APPEALS

OVERVIEW:

On April 6, 1979, the suit was brought by an alien residing in the United States
charging a former official of Paraguay then visiting the United States. The
complaint alleged torture of the plaintiff's brother leading to his death. The court
of appeals ruled that deliberate torture perpetrated by a person invested with
official authority was a violation of customary law supporting the jurisdiction of the
district courts over "a civil action by an alien for a tort only, committed in violation
of the law of nations." The court further declared that "indeed, for purposes of
civil liability, the torturer has become like the pirate and slave trader before him
hostis humani generis, an enemy of all mankind". The court found that torture
perpetrated by a person invested with official authority violates universally
accepted human rights norms, regardless of the nationality of the parties.

.
FACTS OF THE CASE:

The Filartiga are citizens of the Republc of Paraguay. They alleged that their
17year old son Joelito was kidnapped and tortured to death by Norberto Pena-
Irala in Paraguay. Filártiga claims this was done in retaliation for his father's
political activities and beliefs. Filártiga brought a criminal case in Paraguayan
court, but his attorney was arrested , threatened with death, and supposedly
disbarred without just cause. Four years later, another man confessed to the
murder, claiming he found Joelito and his wife together, and said the crime was
one of passion, but he was never convicted, and also the evidence showed that
Joelito's death "was the result of professional methods of torture."

In 1978, Dolly Filártiga came to the US and applied for political asylum. While
Peña also entered the United States under a visitor’s visa but remained in the US
beyond the term of their visas. Dolly learned of Pena and reported it to the
Immigration and Naturalization Service, Peña then was arrested for staying past
the expiration of his visa. When Peña was taken to the Brooklyn Navy Yard
pending deportation, Dolly lodged a civil complaint in U.S. courts for Joelito's
wrongful death by torture.
The Filartiga argued that Peña's actions had violated wrongful death statutes, the
United Nations Charter, the Universal Declaration of Human Rights, the
American Declaration of the Rights and Duties of Man, and other customary
international law.
Peña claimed the U.S. courts had jurisdiction to hear the case under the Alien
Tort Statute, which grants district courts original jurisdiction to hear tort claims
brought by an alien that have been "committed in violation of the law of nations or
a treaty of the United States".
Although the district court initially stayed Peña’s deportation, it ultimately granted
Peña’s motion to dismiss the complaint and allowed his return to Paraguay,
ruling that, although the proscription of torture had become “a norm of customary
international law,” the court was bound to follow appellate precedents which
narrowly limited the function of international law only to relations between states.
ISSUES:
Whether act of torture is part of international concern, thus, under the customary
international law?
Whether a violation of the law of nations arises only when there has been “ a
violation by one or more individuals of those standards, rules or customs if (a)
affecting the relationship between states or between an individual and a foreign
state and (b) used by those states for their common good and/or in dealing per
se”
THE RULING OF THE COURT:
First Issue
The Court ruled that in light of the universal condemnation of torture in numerous
international agreements, the renunciation of torture as an instrument of official
policy by virtually all of the nations of the world (in principle if not in practice) we
find that an act of torture committed by a state official against one held in
detention violated established norms of the international law of human rights,
hence the law of the nations.
Also, the Supreme Court enumerated the appropriate sources of international
law. The law of nations “may be ascertained by consulting the works of jurists,
writing professedly on public law; or by the general usage and practice of
nations; or by judicial decisions recognizing and enforcing that law.”
The Court emphasized the ruling in The Paquete Habana which reaffirmed that
where there is no treaty, and no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages of civilized nations; and
as evidenced of these, to the works of jurists and commentators, who by years of
labor, research and experienced, have made themselves peculiarly well
acquainted with the subjects of which they treat. Such works are resorted to by
judicial tribunals, not for the speculations of their authors concerning what the law
ought to be, but for trustworthy evidence of what the law really is.
The Court ruled that although there is no universal agreement as to the precise
extent of the human rights and fundamental freedoms guaranteed to all by the
charter, there is at present no dissent from the view that the guaranties include,
at a bare minimum, the right to be free from torture. This prohibition has become
part of customary international law, as evidenced and defined by the Universal
Declaration of Human Rights.
Likewise, the Court having examined the sources from which customary
international law is derived the usage of nations, judicial opinion and the works of
jurists, the Court concluded that official torture is now prohibited by the law of
nations. The prohibition is clear and unambiguous, and admits of no distinction
between treatment of aliens and citizens.
Second Issue
The Court stated “the sphere of domestic jurisdiction is not an irreducible sphere
of rights which are somehow inherent, natural, or fundamental. It does not create
an impenetrable barrier to the development of international law. Matters of
domestic jurisdiction are not those which are unregulated by international law,
but those which are left by international law for regulation by States. There are,
therefore, no matters which are domestic by their “nature”. All are susceptible of
international regulation and may become the subjects of new rules of customary
law of treaty obligations.”